REPORT AND RECOMMENDATION
(Docket No. 34)
NANCY J. KOPPE, Magistrate Judge.
Pending before the Court is Plaintiff's motion for a temporary restraining order ("TRO"). Docket No. 34. The Court has considered Plaintiff's motion and Defendants' response. Docket Nos. 24, 37. No reply was filed. See Docket. For the following reasons, the Court RECOMMENDS that Plaintiff's motion for a TRO be DENIED without prejudice. Docket No. 34.
I. BACKGROUND
The instant case involves claims against Defendants regarding Plaintiff's diet at High Desert State Prison. See generally Docket No. 7. Plaintiff alleges he is a member of the Moorish Science Temple of America and must adhere to a vegan diet. Id. at 4. Plaintiff alleges that, although he was approved for a vegan diet, he was placed on a "no-meat" diet, which contains food with animal by-products. Id. at 4. Plaintiff alleges that his diet, violates, inter alia, his First Amendment right of free exercise of religion, his right to equal protection of the laws under the Fourteenth Amendment, and his right against cruel and unusual punishment under the Eighth Amendment. Id. at 4-11.
In the instant motion, Plaintiff submits that, subsequent to Defendants filing their motion for summary judgment, he "was informed that Defendants. . .were attempting to forcibly remove Plaintiff from the `no meat' diet and placed him on a new common-fare diet," which Plaintiff submits "consists of `peanut butter' as the only source of lunch [protein] 7 days a week." Docket No. 32 at 2. Plaintiff submits that the proposed diet is "[protein] deficient, unhealthy, [and] retaliatory [in] nature." Id. at 2, 4. Plaintiff requests a TRO to prevent Defendants from serving him the common-fare diet. Id. at 5.
In response, Defendants submit, inter alia, that Plaintiff's motion should be denied because he failed to file points and authorities in support of his request. Docket No. 37 at 7; see also Local Rule 7-2. Defendants further submit that Plaintiff fails to meet the standards required for a TRO because he is unlikely to succeed on the merits and will not suffer irreparable injury if his TRO is not granted. Docket No. 37 at 5-7. Defendants submit that "Plaintiff is only entitled to receive adequate nutrition to maintain health," and that the food need not be "tasty or aesthetically pleasing." Id. at 6 (internal citation omitted). Finally, Defendants submit that Plaintiff's current diet is in compliance with a vegan diet. Id.
II. STANDARDS
A TRO is injunctive relief which is considered "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The purpose of a TRO is to maintain the status quo and prevent irreparable harm "just so long as is necessary to hold a hearing, and no longer." See e.g., V'Guara Inc. v. Dec, 925 F.Supp.2d 1120, 1123 (D. Nev. 2013) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974).
Pursuant to Fed.R.Civ.P. 65(b), the Court may issue a TRO only if "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 the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should be required." To obtain a TRO, the moving party must establish each of the following: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm if injunctive relief is not granted; (3) that the balance of equities is in his favor; and (4) that public interest favors the injunctive relief. See e.g., Winter, 555 U.S. at 20. In addition to its consideration of the Winter factors, the Court may issue a TRO under the "serious questions" test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under this test, the Winter factors "are balanced, so that a stronger showing of one element may offset a weaker showing of another." Id. at 1131. "Serious questions going to the merits and a balance of the hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1135 (citations omitted).
III. ANALYSIS
Even construing Plaintiff's motion liberally,1 Plaintiff fails to address, let alone establish, the necessary factors to obtain a TRO. Here, Plaintiff has not adequately demonstrated he will suffer irreparable harm. Docket No. 34. Plaintiff submits that, on December 15, 2017, he "was informed that Defendants . . . were attempting to forcibly remove Plaintiff from [his current] `no meat' diet" and replace it with a "new common-fare diet," which Plaintiff alleges "consists of `peanut butter' as the only source of lunch [protein] 7 days a week." Docket No. 34 at 2. Plaintiff submits that the new diet is, therefore, a protein-deficient diet. Id. Defendants, however, submit that Plaintiff continues receiving the no-meat diet, which "complies with a vegan diet." Docket Nos. 30 at 2, 30-1 at 3, 30-2 at 3.2 Plaintiff has not rebutted Defendants' claim that he remains on the vegan-compliant diet. See generally Docket. Therefore, Plaintiff fails to establish an imminent harm. See e.g., Amylin Pharms., Inc. v. Eli Lilly & Co., 456 Fed. App'x 676, 679 (9th Cir. 2001) ("To support injunctive relief, harm must not only be irreparable, it must be imminent; establishing a threat of irreparable harm in the indefinite future is not enough").
Even if the Court proceeds with its analysis under the assumption that Plaintiff has been placed on the new common-fare diet, Plaintiff only makes conclusory assumptions that "peanut butter is harsh on the digestive tract, clogs the colon, and is not a sufficient source of [protein] by itself 7 days a week," without establishing whether he receives sufficient protein at other meals or how the protein from peanut butter deprives him of adequate nutrition. Docket No. 34 at 2, 4. See e.g., LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) ("The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health").
Given the Court's finding that Plaintiff has not established an imminent and irreparable harm, the Court does not reach the remaining three Winter factors. See e.g., US Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F.Supp.3d 1063, 1070 (D. Nev. 2015) (reiterating that the Winter factors are conjunctive and not a balancing test, meaning a plaintiff must prove each element to obtain a TRO). Additionally, pursuant to Fed.R.Civ.P. 65(b), Plaintiff fails to include a written certification stating "any efforts made to give notice [to the adverse party] and the reasons why it should not be required." See Kenfield v. Berkebile, 2015 U.S. Dist. LEXIS 87393, at *4 (D. Mont. July 6, 2015) (finding that the pro se plaintiffs did not qualify for a TRO, in part, because they failed to satisfy either of the requirements under Fed.R.Civ.P. 65(b)).
IV. CONCLUSION
For the aforementioned reasons, the undersigned hereby RECOMMENDS that Plaintiff's motion for a temporary restraining order be DENIED without prejudice. Docket No. 34.
IT IS SO ORDERED.
