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Reberger v. ALL ESP Culinary Personnel

United States District Court, D. Nevada

July 31, 2014

LANCE REBERGER, Plaintiff,
v.
ALL ESP CULINARY PERSONNEL, et al., Defendants.

ORDER

ROBERT C. JONES, District Judge.

This prison civil rights action comes before the Court on, inter alia, plaintiff's motions (##12 and 13) for a temporary restraining order and a preliminary injunction.

Background

Plaintiff alleged in the second amended complaint that his meals did not comply with the requirements of a continuing directive by Dr. Michael Koehn, M.D., that he be placed on a double portion cholesterol/fat restricted diet. According to the pleading, Dr. Koehn placed plaintiff on this diet so that he would be able to take his HIV medication with food. Plaintiff alleged that he was provided eggs, whole milk, and lunch meat in violation of the medically required diet. He alleged that he is allergic to egg yolks. With regard to whole milk, he alleged that he instead was supposed to be provided "smart milk, " a "non-dairy milk replacer."[1] He further alleged that he was being provided mustard in violation of the diet.[2]

Plaintiff alleged that if he was provided these foods allegedly in violation of Dr. Koehn's medical orders he faced serious and immediate health risks. He alleged that the health risks include, inter alia, death from heart attack or stroke and/or infection due to an allegedly compromised immune system. (The allegations appear to reflect that plaintiff is HIV seropositive rather than currently suffering from acute or advanced AIDS with a fully compromised immune system unresponsive to medication.) He maintains that "culinary knows if he were to consume all eggs and whole milk at the same time he would be dead or at the very least paralyzed for life."[3]

Plaintiff further alleged that, following being "poisoned with some kind of chemical, cleaner, rat poison, etc., he cannot eat any meals such as spaghetti, beef stew, sloppy joes, Mexican, mashed potatoes, chili mac, chili, soups, hot cereals, or mashed fruits, and others."[4]

In the motions for a temporary restraining order and preliminary injunctive relief, as thereafter modified by plaintiff's second supplemental reply, plaintiff seeks an order prohibiting "culinary personnel from serving Plaintiff any real eggs, any lunch meat, [and] whole milk - despite whole milk being corrected."[5]

Defendants have submitted a declaration under penalty of perjury by the aforementioned Dr. Michael Koehn, M.D., with their response to the motions.

Dr. Koehn attests, inter alia, that: (a) plaintiff currently has a medical order to receive the low cholesterol/low fat diet and is authorized to receive a double portion diet; (b) after plaintiff made complaints that he was allergic to eggs, Dr. Koehn tested plaintiff for allergies to egg products; (c) the results of the allergy testing indicated that plaintiff "did not exhibit an allergy to any egg part, yoke, white or the whole egg;" (d) plaintiff made numerous complaints relating to his contention that he cannot consume eggs and requested that Dr. Koehn order that he not receive eggs but "[t]here is no medical basis to alter the diet currently order[ed] that Inmate Reberger receive;" and (e) "[t]he medical diet currently ordered to be served to Inmate Reberger does not place him in imminent danger of a heart attack, stroke, or any other health risk factor that is outside of his current medical conditions."[6]

Defendants further have presented a copy of the menu list for prison special diets, including the low fat/cholesterol diet. The menu for that particular special diet includes, inter alia, eggs, luncheon meat sandwiches, mustard, and nonfat milk.[7]

Nothing in either Dr. Koehn's declaration or the special diet menu reflects that an inmate on the diet must be provided "smart milk" as a "non-dairy milk replacer." The menu does include "milk replacer" as well as the "non fat milk, " but nothing on the menu reflects that an inmate must be given one in lieu of the other for all inmates on the diet.

Discussion

As stated by the Supreme Court with respect to preliminary injunctive relief:

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in ...

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