United States District Court, D. Nevada
REPORT & RECOMMENDATION OF MAGISTRATE JUDGE
WILLIAM G. COBB, Magistrate Judge.
This Report and Recommendation is made to the Honorable Robert C. Jones, Chief 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 1B 1-4. Before the court is "Plaintiff's Motion for a Prohibitory Injunction to be Issued." (Doc. # 42.) Defendants have filed a response (Doc. # 49) to which Plaintiff replied. (Doc. # 53.)
After a thorough review, the court recommends Plaintiff's motion be denied.
A. Summary of Claims
At all times relevant to the allegations in this action, Plaintiff was an inmate in the custody of the Nevada Department of Corrections (NDOC). (Pl.'s Am. Compl., Doc. # 14.) The events giving rise to this litigation took place while Plaintiff was housed at Lovelock Correctional Center (LCC), and Plaintiff is currently housed at Northern Nevada Correctional Center (NNCC). ( Id. ) Plaintiff, a pro se litigant, brings this action against Defendants LCC Warden LeGrand, and Correctional Officers Bail, Park, Ball and Baros, pursuant to 42 U.S.C. § 1983. ( See Screening Order, Doc. # 11.)
The court's January 6, 2014, screening order concluded that Plaintiff's amended complaint stated colorable claims for retaliatory destruction or loss of property under the First Amendment, and deliberate indifference under the Eighth Amendment relating to conditions of confinement. (Doc. #11 at 4-6.) The court dismissed all claims alleging violations of due process under the Fourteenth Amendment, all claims for injunctive relief, and all claims against Defendants in their official capacity. ( Id. ) In addition, the court dismissed Defendants NDOC, McDaniel, and Emanuel. ( Id. at 8.)
The arguments made in Plaintiff's amended complaint which are relevant to this motion are as follows: Count II alleges that Defendant Baros disposed of over three-hundred dollars worth of Plaintiff's compact discs (CDs) at the direction of Defendant LeGrand. (Doc. # 11 at 4.) Count IV further alleges that Baros conducted a second inventory of property in Plaintiff's cell in 2013, without Plaintiff being present, and over his objection. (Id. at 6.) Plaintiff contends that Baros disposed of and damaged several items of his legal and personal property, allegedly in retaliation for Plaintiff's filing grievances regarding the incident alleged in Count II. ( Id. ) Plaintiff contends that the events alleged in Count II and IV were taken pursuant to a policy implemented by Defendant LeGrand to search inmate property in order to steal legal materials "brought against him and his officers." ( Id. )
B. Plaintiff's Motion (Doc. # 42)
Plaintiff argues that, on an occasion separate from those alleged in his complaint, 12 "Double Disk CDs" were confiscated from his cell by Defendant Baros. Although the CDs have since been returned, Plaintiff contends that his name was scratched into two of the disks, rending them unreadable. Plaintiff argues that the CDs were confiscated and damaged in retaliation for Plaintiff's filing of grievances against Baros with respect to the conduct alleged in Plaintiff's amended complaint. (Doc. # 42 at 3.) Plaintiff states that he intends to use the CDs currently in his possession as exhibits in this case with respect to his First Amendment retaliation claim.
Plaintiff's motion appears to be based on his contention that there is no uniform interpretation among NDOC personnel of Administrative Regulation ("A.R.") 711.1 (5)(A)(4). Plaintiff contends that when he originally purchased the 12 "double disk CDs, " he was told by the NDOC music vendor that each "double disk set" constituted only one CD under A.R. 711.1(5)(A)(4). As a result of this interpretation, Plaintiff seemingly contends he may have possibly as many as 24 CDs in his possession.
Plaintiff contends that when Defendant Baros subsequently confiscated the 12 "Double Disk CDs, " he concluded that each double disk constituted two CDs rather than one, and consequently that Plaintiff had exceeded the maximum allowable number of CDs in his unit under A.R. 711.1(5)(A)(4). Plaintiff contends Defendant Baros used this interpretation of the A.R. as a pretext for confiscating and damaging these CDs, in retaliation for Plaintiff's filing of grievances.
Plaintiff contends that, absent the requested injunction, he will suffer irreparable harm in the future, as NDOC personnel are likely to use the vague language of A.R. 711.1(5)(A)(4) as a pretext to continue confiscating his CDs, now apparently in retaliation for Plaintiff's intent to use them as evidence. Plaintiff argues that such an occurrence would constitute irreparable harm, as he would no longer have access to the CDs which he intends to use as evidence in this case.
Consequently, Plaintiff asks the court to enter an order prohibiting Defendants and potential unknown NDOC personnel from any future confiscation of these music CDs now in ...