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Carmichael v. Aranas

United States District Court, D. Nevada

May 2, 2017

RICHARD LEE CARMICHAEL, Plaintiff,
v.
ROMEO ARANAS, et al ., Defendants.

          ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         II. BACKGROUND

         Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (ECF No. 43) (“R&R”) relating to Plaintiff Richard Carmichael's (“Carmichael”) Motion for Temporary Restraining Order/Preliminary Injunction (ECF Nos. 3, 4). Defendants have objected to the R&R. (ECF No. 46.) For the reasons herein the R&R is accepted and adopted in full.

         Carmichael is an inmate in the custody of the Nevada Department of Corrections (“NDOC”) and is currently housed at the Northern Nevada Correctional Center (“NNCC”). The events giving rise to this action took place while he was housed at High Desert State Prison, Southern Desert Correctional Center, Ely State Prison, and NNCC.

         On January 13, 2017, Carmichael, proceeding pro se and in forma pauperis, filed a complaint asserting claims based on 42 U.S.C. § 1983. (ECF No. 1.) Shortly thereafter, he filed an Emergency Motion for a Temporary Restraining Order and Preliminary Injunction (“PI Motion”). (ECF Nos. 4, 5.)[1] The complaint was screened pursuant to 28 U.S.C. 1915A, and Carmichael was allowed to move forward with the claims he listed in Counts I, II, and IV, which alleged deliberate indifference to his serious medical needs in violation of the Eight Amendment. (ECF No. 5.) Count I addresses Carmichael's prostate condition and Counts II and IV deal with a spinal condition.

         The details of Carmichael's claims, which are summarized here, are spelled out in greater detail in the R&R.[2] Carmichael's PI Motion is based on the allegations in Counts II and IV against Defendants Koehn, Wickham, Sablica, Famy, Weber, and Baca. In general, Carmichael alleges that he has serious neck and pack pain stemming from degenerative disc disease and advanced spinal stenosis - conditions with which he was diagnosed in 2013 and 2016 respectively. He alleges that Defendants have ignored a number of his requests for accommodation and treatment, and that their actions have caused him a great deal of pain and risked further deterioration of health. Carmichael asks the Court for an order barring Defendants from transporting him to another facility until a medical professional can determine whether transport would cause further harm to his back. He also asks for Defendants to arrange an examination by a qualified neurologist or orthopedic surgeon.

         After reviewing the parties' briefs and ordering supplemental briefing, the Magistrate Judge held a hearing on March 27, 2017. (ECF No. 40.) Based on the record and the arguments presented at the hearing, the Magistrate Judge determined that Carmichael had demonstrated a likelihood of success on the merits of his Eight Amendment deliberate indifference claim related to his spinal condition. The Magistrate Judge further determined that the rest of the preliminary injunction analysis weighed in Carmichael's favor and recommends granting Carmichael's request by issuing an order: (1) precluding Defendants from requiring Carmichael to lift anything greater than 10 pounds, consistent with the current “lay-in order” in place, until and unless it is medically determined otherwise; and (2) require consultation with Carmichael's medical care providers regarding safe transport if Carmichael is transferred to another NDOC facility. (ECF No. 43 at 19-20.)

         Defendants have objected to the Magistrate Judge's recommendation, and argue that he erred at each step of the preliminary injunction analysis. (ECF No. 46.)

         III. LEGAL STANDARD

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Defendants' objections, the Court has engaged in a de novo review to determine whether to adopt Magistrate Judge Cobb's recommendations.

         “‘An injunction is a matter of equitable discretion' and is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.'” Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22, 32 (2008)). To qualify for a preliminary injunction, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm; (3) that the balance of equities favors the plaintiff; and (4) that the injunction is in the public interest. Winter, 555 U.S. at 20.

         Alternatively, in the Ninth Circuit, an injunction may issue under a “sliding scale” approach if there are serious questions going to the merits and the balance of equities tips sharply in the plaintiff's favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). The plaintiff, however, must still show a likelihood of irreparable harm and that an injunction is in the public interest. Id. at 1135. “[S]erious questions are those ‘which cannot be resolved one way or the other at the hearing on the injunction.'” Bernhardt v. Los Angeles Cty., 339 F.3d 920, 926-27 (9th Cir. 2003) (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). They “need not promise a certainty of success, nor even present a probability of success, but must involve a ‘fair chance of success on the merits.'” Marcos, 862 F.2d at 1362 (quoting Nat'l Wildlife Fed'n v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)).

         Furthermore, under the Prison Litigation Reform Act (“PLRA”), preliminary injunctive relief must be “narrowly drawn, ” must “extend no further than necessary to correct the harm, ” and must be “the least ...


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