United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and LR IB 1-4. Before the court is plaintiffs
emergency motion for a temporary restraining order and
preliminary injunction. (ECF Nos. 23 and 24.) Defendants'
opposed, (ECF No. 25), and plaintiffs replied (ECF no. 26).
For the reasons described below, the court recommends that
the motion be denied.
Griffith ("plaintiff') is an inmate in the custody
of the Nevada Department of Corrections ("NDOC") at
the Northern Nevada Correctional Center ("NNCC").
Proceeding pro se, plaintiff brings this case under
42 U.S.C. § 1983. (ECF No. 1-1.) On January 23, 2017,
the court screened plaintiffs amended complaint pursuant to
28 U.S.C. § 1915A, and allowed plaintiff to proceed on
one Eighth Amendment claim of deliberate indifference to
serious medical needs against Dr. Romeo Aranas ("Dr.
Aranas"), Dr. Karen Gedney ("Dr. Gedney"), and
against former NDOC Director Greg Cox ("Cox") only
with respect to plaintiffs claim for injunctive relief. (ECF
No. 3 at 6.)
plaintiffs motion, he alleges that defendants deliberately
deprived him of a cure to his Hepatitis-C ("Hep-C")
infection for nonmedical reasons. (ECF No. 23 at 3.)
Plaintiff contends that Dr. Gendney refused to prescribe
plaintiff a direct-acting antiviral ("DAA"), which
plaintiff claims is a cure for Hep-C, due to the high cost of
the medication. (ECF No. 23 at 10.) Dr. Gedney stated that
plaintiffs liver "would have to need immediate medical
attention" to receive treatment because NNCC only has
funding to treat ten inmates a year. (Id.) Dr.
Gedney and Dr. Aranas have denied plaintiffs repeated
requests for treatment with a DAA despite approving plaintiff
for "interferon Hep-C treatment in 2009-2010."
(Id. at 11.) Plaintiff contends that he has been
denied DAA treatment pursuant to Medical Directive 219.1, an
NDOC guideline for treating Hep-C that excludes inmates whose
liver damage falls below a threshold level, and that Medical
Directive 219.1 was enacted solely to "meet fiscal
budget restraints ...." (Id. at 9.)
non-treatment of plaintiffs Hep-C is causing ongoing damage
to plaintiffs liver and other organs. (Id. at 3.)
Plaintiff alleges that he experiences constant joint pain,
liver pain, digestive issues, severe rash, and fatigue.
(Id. at 11.) Additionally, an ultrasound indicated
that plaintiffs Hep-C is causing his gallbladder walls to
thicken. (Id. at 12.) Plaintiff seeks to have
defendants enjoined from enforcing the exclusion criteria set
forth in Medical Directive 219.1 against plaintiff.
(Id. at 1.) Plaintiff also seeks an injunction
requiring defendants to arrange for plaintiff to be seen by
an independent physician and provide plaintiff with DAA
medication after the independent physician prescribes such
treatment. (Id. at 1.)
for temporary restraining orders are governed by the same
standards that govern the issuance of preliminary injunctive
relief. Los Angeles Unified School Dist. V. United States
Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981);
V'Guara v. Dec, 925 F.Supp.2d 1120, 1123 (D.
Nev. 2013). Courts may grant preliminary injunctive relief
pursuant to Federal Rule of Civil Procedure 65, but such
remedies are "extraordinary and drastic . . . [and]
never awarded as of right[.]" Munafv. Geren,
553 U.S. 674, 689-90 (2008) (internal citations omitted).
When moving for a preliminary injunction, the plaintiff must
make several showings: (1) he is likely to succeed on the
merits; (2) he is likely to suffer irreparable harm in the
absence of injunctive relief; (3) the equities balance in his
favor; and (4) an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20
(2008). The test is conjunctive, meaning the party seeking
the injunction must satisfy each element. In the Ninth
Circuit, courts are to apply a '"sliding scale
approach'" in evaluating the motion, "such that
'serious questions going to the merits and a balance of
hardships mat 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.'" Arc of Cal. v. Douglas, 757
F.3d 975, 983 (9th Cir. 2014) (quoting All. for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135
(9th Cir. 2011)). The standard for a permanent injunction is
substantially the same. Quiroga v. Chen, 735
F.Supp.2d 1226, 1229 (D. Nev. 2010).
considerations may apply to injunctive relief within the
prison context. First, a more stringent standard applies
where a party seeks affirmative relief. Ordinarily,
preliminary injunctive relief aims to preserve the status quo
pending a determination of the case on the merits.
Sierra Forest Legacy v. Rey, 577 F.3d 1015,
1023 (9th Cir. 2009). When "a party seeks mandatory
preliminary relief that goes well beyond maintaining the
status quo pendente lite, courts should be extremely
cautious about issuing a preliminary injunction."
Martin v. Int'l Olympic Comm., 740 F.2d 670, 675
(9th Cir. 1984). Thus, mandatory preliminary relief is only
warranted where both the facts and the law clearly favor the
moving party and "extreme or very serious damage will
result." Anderson v. United States, 612 F.2d
1112, 1115 (9th Cir. 2009) (internal quotation omitted).
Second, the Prison Litigation Reform Act ("PLRA")
provides that, with regard to prison conditions,
[preliminary injunctive relief must be narrowly drawn, extend
no further than necessary to correct the harm the court finds
requires preliminary relief, and be the least intrusive means
necessary to correct that harm. The court shall give
substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of
comity.. . in tailoring any preliminary relief.
18 U.S.C. § 3626(a)(2). Therefore, the PLRA
"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." Gilmore v.
California, 220 F.3d 987, 999 (9th Cir. 2000).
in addition to the requirements described above, the Supreme
Court has observed that a preliminary injunction motion must
seek relief of the "same character as that which may be
granted finally." De Beers Consol. Mines v. United
States, 325 U.S. 212, 220 (1945). Thus, a court may not
enjoin conduct relating to "a matter lying wholly
outside the issues in the suit." Id. In the
same vein, the Ninth Circuit recently ruled that "there
must be a relationship between the injury claimed in the
motion for injunctive relief and the conduct asserted in the
underlying complaint." Pac. Radiation Oncology, LLC
v. Queen's Medical Ctr., 810 F.3d 631, 636 (9th Cir.
2015) (citing Devose v. Herrington, 42 F.3d 470, 471
(8th Cir. 1994)). Absent a sufficient "relationship or
nexus, the district court lacks authority to grant the relief
reviewed plaintiffs filings with the above-cited principles
in mind, plaintiff has not made the showing required for an
injunction to issue. First, plaintiff has failed to show that
he is likely to succeed on the merits of his underlying
deliberate indifference claim. "Deliberate indifference
is a high legal standard." Toguchi v. Chung,391 F.3d 1051, 1060 (9th Cir. 2004). To prevail plaintiff
must make two showings: (1) a "serious medical need,
" and (2) that defendants' response was deliberately
indifferent. Jett v. Penner,439 F.3d 1091, 1096
(9th Cir. 2006). A prison official acts with "deliberate
indifference ... only if the [prison official] knows of and
disregards an excessive risk to inmate health and
safety." Gibson v. County of Washoe, Nevada,290 F.3d 1175, 1187 (9th Cir. 2002). For this reason,
differences in judgment between ...