WILLIAM G. COBB, Magistrate Judge.
This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4. Before the court is Plaintiff's Emergency Injunction for Safety. (Doc. # 57.
Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Complaint, Doc. # 9.) The events giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). The only defendants against whom the action was allowed to proceed on a claim of excessive force are D. Ahja, Paul Samsel and Michael Cruise. (Screening Order, Doc # 9.) The Office of the Attorney General subsequently accepted service for Defendants Ahja and Samsel but did not accept service on behalf of defendant Michael Cruise who is no longer an employee of NDOC. (Doc. # 65.) Defendants filed the last known address of Defendant Cruise under seal (Doc. # 66).
The only claim which was allowed to proceed after screening was Count I of Plaintiff's Complaint. District Judge Robert C. Jones addressed this cause of action as follows:
Screening Order, Doc. # 8 at 3-4.
The allegations Plaintiff asserted against Warden Baca, NDOC Director Cox, Associate Warden Schreckengost, Associate Warden Walsh, Senior Correctional Officer Miller, Sergeant Branham and Senior Correctional Officer Howard did not proceed beyond screening. (Id.)
In Plaintiff's 2-page Emergency Injunction for Safety, he makes vague reference to "(2) two violent attacks" which he claims were inflicted upon him (or alternatively, "threatened") "by C/O and LT" (names not provided). (Doc. # 57 at 1.) Plaintiff further asserts he was "attacked for the third (3rd) on 15 June 2015 at Approx. 1515-1525 in Unit 5(B) wing by S/E Officer Arridgner."
Defendants respond by noting "there are no concrete facts for either defense counsel or this court to investigate as to this allegation" found in Plaintiff's emergency injunction for safety. (Doc. # 69 at 1.) Defendants dispute the background of the "violent attacks," arguing Plaintiff was not attacked by any NDOC employees, but rather was handcuffed by other NDOC officers (not the defendants herein) after becoming argumentative with an NDOC nurse. Plaintiff was examined for complaints of shoulder pain and was diagnosed with calcific tendinitis, not a shoulder dislocation. (Id., at 2.) Defendants submitted extracts of Plaintiff's NDOC medical records, which the court authorized to be filed under seal. (Doc. # 75 at 3.)
The court conducted a hearing on Plaintiff's complaints of possible threats or retribution on July 27, 2015. None of the allegations of threats of violence were attributed by Plaintiff to any of the defendants against whom this action was allowed to proceed.
At the conclusion of the hearing, the court advised the parties it would be entering a Report and Recommendation recommending denial of Plaintiff's emergency injunction.
The purpose of a preliminary injunction or temporary restraining order is to preserve the status quo if the balance of equities so heavily favors the moving party that justice requires the court to intervene to secure the positions until the merits of the action are ultimately determined. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction is an "extraordinary and drastic remedy" that is "never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). Instead, in every case, the court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 23 (2008) (internal quotation marks and citation omitted). Accordingly, Plaintiff's emergency injunction requires that the court determine whether Plaintiff has established the following: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Id. at 20 (citations omitted).
In addition, the Prison Litigation Reform Act (PLRA) mandates that prisoner litigants must satisfy further requirements when seeking preliminary injunctive relief against prison officials. The PLRA provides, in relevant part:
18 U.S.C. § 3626(a)(2). Thus, § 3626(a)(2) limits the court's power to grant preliminary injunctive relief to inmates. See Gilmore v. People of the State of California, 220 F.3d 987, 998 (9th Cir. 2000). "Section 3626(a) ... operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the bargaining power of prison administrators-no longer may courts grant or approve relief that binds prison administrators to do more than the constitutional minimum." Id. at 999.
Plaintiff's Emergency Injunction for Safety only addressed the component that absent any injunction, Plaintiff may suffer irreparable harm.
The parties should be aware of the following:
1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to this Report and Recommendation within fourteen days of receipt. These objections should be titled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the district judge.
2. That this Report and Recommendation is not an appealable order and that any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment by the district court.
