United States District Court, D. Nevada
GREGORY J. BENNETT, Plaintiff,
JOHN KEAST, et al., Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
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 the Local Rules of Practice, LR 1B 1-4.
the court is Plaintiff's Emergency Motion for Preliminary
Injunction. (ECF No. 6.) Defendants filed a response (ECF No.
11, Supporting Exhibits filed under seal at ECF Nos. 13-1 to
13-4), and Plaintiff filed a reply (ECF No. 15).
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), proceeding pro se with this action
pursuant to 42 U.S.C. § 1983. (Am. Compl., ECF No. 4.)
The events giving rise to this action took place while
Plaintiff was housed at Northern Nevada Correctional Center
(NNCC). (Id.) Defendants are NNCC Direct of Nursing
John Keast and Specialty Care Nurse Melissa Mitchell.
originally filed this action along with his application for
leave to proceed in forma pauperis (IFP) on August 28, 2017.
(ECF Nos. 1, 1-1.) His complaint was accompanied by an
emergency motion for a preliminary injunction. (ECF No. 1-3.)
He filed his amended complaint on November 1, 2017. (ECF No.
4.) He also re-filed his emergency motion for preliminary
injunction. (ECF No. 6.)
amended complaint, Plaintiff alleges that he was sixty-seven
years old, and a tonsil cancer patient. (ECF No. 6 at 4.) His
cancer spread to his lymph nodes, and he received intensive
radiation treatment to his throat, as well as chemotherapy.
(Id.) He claims that the radiation severely damaged
his throat, making it impossible for him to swallow normally
prepared food items. (Id.) He went on to allege that
Dr. Hummer at the Cancer Clinic prescribed him Biotene
mouthwash to moisten his mouth and throat during meal time to
permit him to swallow a blended, medical diet. (Id.
at 5.) Dr. Cambell at the Cancer Clinic prescribed the
blended, medical diet. (Id.)
alleges that Mitchell was directly responsible for providing
both the mouthwash and diet; she knew of the prescriptions;
knew that Plaintiff constantly suffered from severe hunger
and dry mouth; knew he was rapidly losing weight without
these items; and failed to provide the mouthwash or blended,
medical diet. (Id.) As a result, he avers that he
suffered severe hunger and weight loss. (Id.) He
claims that due to the weight loss his cancer doctors planned
to stop his treatments and put him in intensive care.
(Id. at 4.)
alleges that Keast knew that Mitchell failed to provide the
mouthwash and diet, and failed to intervene. (Id. at
court screened his amended complaint on November 21, 2017,
and found Plaintiff stated a colorable Eighth Amendment
deliberate indifference to serious medical needs claim
against Mitchell and Keast. (ECF No. 7.) At that time, the
court directed the Attorney General's Office to advise
the court whether it would enter a limited notice of
appearance and respond to the motion for preliminary
injunction. (Id. at 7.) The Attorney General's
Office entered a limited notice of appearance and limited
acceptance of service on behalf of Keast on December 6, 2017.
(ECF No. 10.) A response to the motion for preliminary
injunction was filed the same date.
motion for preliminary injunction, Plaintiff asserts he was
suffering from hunger as a result of the denial of the
mouthwash and blended, medical diet. (ECF No. 6.) He claims
that if this continues, his future chemotherapy treatment
could be discontinued and he could be placed in the intensive
care unit. (Id.) As such, he asks the court for an
order that Defendants immediately begin providing him with
his mouthwash and blended, medical diet. (Id.)
their response, Defendants state that since August 2017,
Plaintiff has had standing orders for a full liquid diet and
regular diet, consisting of six cans of Ensure nutritional
drink per day, and the ability to eat a regular diet if his
throat condition allows. (ECF No. 7.) In addition, on
September 5, 2017, he had a gastronomy feeding tube installed
in his stomach, so he can take the liquid diet through his
stomach, rather than by swallowing. Insofar as the mouthwash
is concerned, they argue that in July 2017, he had a
prescription but allowed it to lapse by October 2017, but it
had been renewed for him as of November 29, 2017, and he
could let NNCC officials know when he needed future renewals.
As a result, Defendants contend that the motion for
preliminary injunction should be denied as moot.
reply brief, Plaintiff acknowledges he is no longer under an
imminent threat of irreparable harm since the placement of
the feeding tube on September 5, 2017, and a preliminary
injunction is no longer warranted. Plaintiff argues that he
will still succeed on his deliberate indifference claim
because he did not receive the liquid diet for forty-five
days, until September 5, 2017, after he lost a significant
amount of weight. He also disputes whether he let his
mouthwash prescription lapse.
purpose of a preliminary injunction is to preserve the status
quo if the balance of equities so heavily favors the moving
party that justice requires the court to intervene to secure
the positions until the merits of the action are ultimately
determined. University of Texas v. Camenisch, 451
U.S. 390, 395 (1981). A party seeking a preliminary
injunction must establish: (1) a likelihood of success on the
merits; (2) a likelihood of suffering irreparable harm in the
absence of injunctive relief; (3) that the balance of
equities tips in his or her favor; and (4) that an injunction
is in the public interest. Winter v. Natural Resources
Defense Council, 555 U.S. 7, 20 (2008).
Plaintiff maintains the validity of his Eighth Amendment
claim, but concedes that injunctive relief is no longer
warranted since the placement of his feeding tube on
September 5, 2017. Accordingly, ...