Hershfeldt v. Johnston et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 26-cv-00342-NYW-CYC
GERALD PAUL HERSHFELDT,
Plaintiff,
v.
CARLEEN JOHNSTON, individually and in her official capacity;
JENNIFER BRANT, individually and in her official capacity;
TIMOTHY J. JASHINSKY, individually and in his official capacity;
CINDY LUCERO, individually and in her official capacity;
WENDY BATTS, individually and in her official capacity;
ARTHUR J. SPICCIATI, individually and in his official capacity;
LARRY BOYD, individually and in his official capacity;
JANE RODIG, individually and in her official capacity;
HEATHER O'HAYRE, in her official capacity;
MICHELLE BARNES, in her official capacity;
LAURIE GILL, in her official capacity; and
LARIMER COUNTY, COLORADO,
Defendants.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Plaintiff Gerald Paul Hershfeldt, proceeding pro se, seeks a temporary restraining order
(“TRO”) under Federal Rule of Civil Procedure 65. ECF No. 11. Because the motion does not
comply with the Federal Rules of Civil Procedure and the Local Rules of this District, the Court
recommends that the motion be denied.
ANALYSIS
Federal Rule of Civil Procedure 65 permits courts to enter TROs. Fed. R. Civ. P. 65(b). A
TRO’s purpose is to “preserv[e] the status quo and prevent[ ] irreparable harm” until a
preliminary injunction hearing may be held. Granny Goose Foods, Inc. v. Bd. of Teamsters &
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Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). Rule 65(b)(1)
states: “The court may issue a temporary restraining order without written or oral notice to the
adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in
writing any efforts made to give notice and the reasons why it should not be required.”
Furthermore, D.C.COLO.LCivR 65.1(a) provides that an ex parte motion requesting a TRO shall
be accompanied by a certificate of counsel or a pro se party attesting that (1) the moving party
has provided “copies of all pleadings and documents filed in the action to date or to be presented
to the court at the hearing” to opposing counsel and any unrepresented adverse party, or (2) the
moving party has made efforts to give such notice and furnish such copies. The Local Rule notes
that “[e]xcept as provided by Fed. R. Civ. P. 65(b)(1), the court shall not consider an ex parte
motion for temporary restraining order.” D.C.COLO.LCivR 65.1(a)(2).
In his motion, the plaintiff states that he “has been unable to provide prior notice to
Defendants without risking immediate retaliatory enforcement action.” ECF No. 11 at 5. His
explanation is that one named defendant allegedly retaliated against him when the plaintiff filed
a motion in state court. Id. But this case is brought against twelve defendants, one of which is a
municipality. ECF No. 9 at 1. The plaintiff provides no explanation why he could not provide
actual notice to the other defendants. Although the Court must liberally construe pro se filings,
pro se status does not excuse the obligation of any litigant to comply with the same rules of
procedure that govern other litigants, Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994), and
the Court cannot be a pro se litigant’s advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). And because he did not provide notice to the defendants, he also did not comply with
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D.C.COLO.LCivR 7.1, which requires a moving party to “confer or make reasonable, good faith
efforts to confer with any opposing counsel or unrepresented party to resolve any disputed
matter” before filing a motion. Because the plaintiff failed to comply with both the Federal Rules
of Civil Procedure and the Local Rules of this District, the motion should be denied. E.g., Evans
v. Janeway Law Firm, No. 25-cv-02761-STV, 2025 WL 3516306, at *1 (D. Colo. Sept. 8, 2025);
Duke v. H & R Block Bank, No. 10-cv-01927-REB-KLM, 2010 WL 3307483, at *1 (D. Colo.
Aug. 18, 2010); Leslie v. JP Morgan Chase Bank, N.A., No. 10-cv-01756-PAB, 2010 WL
3087496, at *1 (D. Colo. Aug. 5, 2010).
“Further, a party seeking a temporary restraining order or preliminary injunction must
show (1) a substantial likelihood that the movant eventually will prevail on the merits; (2) that
the movant will suffer irreparable injury unless the injunction issues; (3) that the threatened
injury to the movant outweighs whatever damage the proposed injunction may cause the
opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest.”
Superfast GmbH v. Oliver, No. 25-cv-02994-SKC-STV, 2025 WL 3516307, at *1 (D. Colo. Oct.
7, 2025) (quotation marks omitted). Moreover, because the purpose of relief under Rule 65 “is
merely to preserve the relative positions of the parties until a trial on the merits can be held,”
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981), requests to alter the status quo are
disfavored. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258–59 (10th Cir. 2005). And the plaintiff
asks for mandatory injunctive relief including suppressing certain tradelines and “ceas[ing] wage
garnishment, tax intercept, or license suspension enforcement actions.” ECF No. 11 at 5. In
seeking a disfavored injunction, “the movant must make a strong showing both with regard to the
likelihood of success on the merits and with regard to the balance of harms.” Fish v. Kobach, 840
F.3d 710, 724 (10th Cir. 2016) (quotation marks omitted).
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He does not do so. He argues, for instance, that his best case for a TRO is his likelihood
of prevailing on his sixth claim, brought under the Fair Credit Reporting Act. ECF No. 11 at 2
(citing 15 U.S.C. § 1681n). But he provides no legal analysis for the claim, and the Court is not
obligated to piece together the plaintiff’s argument for him. See Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). His argument also ignores that he brings six claims
for relief against twelve defendants. And some of the evidence upon which he relies does not
support the propositions for which he cites it. He cites, for example, an “Exhibit 2” —
presumably Exhibit 2 to the amended complaint, ECF No. 9-2, as the TRO motion has no
attached exhibits — for the proposition that the defendants confirmed in writing that a certain
order does not exist, ECF No. 11 at 2, but most of that exhibit is the plaintiff’s own writings. The
only portion attributable to any defendant is the following:
Hello Jerry,
Attached is the Separation Agreement and Parenting Plan along with the Decree of
Dissolution of Marriage. Child Support is $1,128.00 per month.
Thank you!
ECF No. 9-2 at 2. That does not appear to admit anything about the nonexistence of an order.
The plaintiff also appears to read into an apparent minute entry from a state-court docket an
admission that the state court could enter no valid child-support order, ECF No. 11 at 2–3, but it
is far from clear the entry to which he refers, which states in relevant part, “UNABLE TO
ENTER SUPPORT ORDERS AS WE ARE MISSING SSN FOR CHILDREN,” is any such
admission. ECF No. 9-1 at 1. As such, the plaintiff does not establish the strong showing of a
likelihood of success on the merits necessary for a TRO. The failure to satisfy this factor alone is
fatal to the motion. See Denver Homeless Out Loud v. Denver, Colo., 32 F.4th 1259, 1277 (10th
Cir. 2022) (“An injunction can issue only if each factor is established.”).
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Finally, while the motion only discusses a TRO, the title of the document also references
a preliminary injunction. ECF No. 11 at 1. However, “[t]he court may issue a preliminary
injunction only on notice to the adverse party,” Fed. R. Civ. P. 65(a)(1), and the plaintiff admits
that he has not provided notice to the defendants. ECF No. 11 at 5–6. As a result, to the extent
the motion’s title also refers to a preliminary injunction, such relief is not available at this time.
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS1 that the Plaintiff’s Motion for
Temporary Restraining Order and Preliminary Injunction Pursuant to Fed. R. Civ. P. 65, ECF No.
11, be DENIED.
Entered and dated this 10th day of March 2026, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
1 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676–83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen days after being served with a copy may bar the aggrieved
party from appealing the factual findings and legal conclusions of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties
must consult and comply with the District Judge’s practice standards for any specific
requirements concerning the filing and briefing of objections.
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