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Crittendon v. Lombardo

United States District Court, D. Nevada

March 30, 2018

JOE LOMBARDO, et al., Defendants.




         Before the Court is Plaintiff Joshua H. Crittendon (“Plaintiff”)'s Motion for Temporary Restraining Order (TRO), (ECF No. 3) and Motion for Preliminary Injunction (ECF No. 4). For the reasons stated below, the Court DENIES Plaintiff's motions without prejudice. The Court also addresses several other motions filed by Plaintiff: a Motion for Copies of Written Transaction (ECF No. 16), and a Motion for Leave and/or Stay of Time (ECF No. 39).


         Plaintiff filed his original Complaint and Motion to Leave to Proceed in forma pauperis on June 16, 2017. (ECF No. 1).[1] Plaintiff, a pretrial detainee, asserts unnecessary and excessive use of force claims, as well as a claim for deliberate indifference in the denial of medical treatment, alleging that Defendants assaulted him and caused him irreparable harm. Plaintiff also filed the instant Motion for TRO and Motion for Preliminary Injunction on August 1, 2017, whereby he asks this Court order that he be moved to another facility to get medical care. (ECF No. 3, 4). On August 10, 2017, the Court held a hearing on the motions and heard representation from Plaintiff. The hearing was continued to the following day; although counsel for Defendants had not yet been served, they appeared at August 11th hearing. During the August 11th hearing, the Court ordered Defendant Naphcare to provide Plaintiff with access to his medical records and Defendants Joe Lombardo (“Lombardo”) and the Las Vegas Metropolitan Police Department (“LVMPD”) to provide Plaintiff access to certain videotape footage. (ECF No. 14). The Court scheduled a future hearing on the matter, which was held on January 11, 2018. (ECF No. 35).

         On January 31, 2018, Plaintiff filed a Motion for Leave and/or Stay of Time to Pursue Counsel. (ECF No. 39). Defendants Lombardo and LVMPD filed a Response on February 14, 2018. (ECF No. 43).


         The Court summarizes the allegations from the Complaint as follows. Plaintiff's claims stem from two events in which he alleges that he was assaulted by Clark County Department of Corrections (“CCDC”) corrections officers. On November 15, 2016, Corrections Officer Sanchez “cuffed-up” Plaintiff and grabbed him by the shirt, directing him out of his cell for a visit with his attorney. As they approached the stairs, Plaintiff stopped to avoid being pushed onto the stairs. Sanchez “took this as resistance, ” then tripped and slammed Plaintiff to the ground. The next day, Corrections Officer Brown woke Plaintiff for his medication. Plaintiff took the medication and Brown told him to open his mouth. He asked Brown not to “start with him today, ” implying that he was uncomfortable with the request because Brown had sexual allegations against him about which Plaintiff had repeatedly confronted him. Plaintiff told him “once is enough.” Brown got mad and told Plaintiff, “I'll be back.” Plaintiff claims Brown retaliated against him, returning ten minutes later to move Plaintiff to a corner cell where Plaintiff could not see the television. Plaintiff refused to leave. Brown called for back-up. Other corrections officers came to Plaintiff's cell and threatened him with deadly force if he did not “cuff-up.” After Plaintiff did not comply, the corrections officers sprayed chemicals into his cell, causing Plaintiff to cough and choke, and stuck a shotgun in the cell. As Plaintiff was holding on to his mattress, an officer fired the shotgun. The shotgun malfunctioned and a rubber ball that was accidentally ejected hit Plaintiff's finger, causing it to break. The corrections officers then extracted Plaintiff from the cell and took him to the mental health unit. Plaintiff was placed into a feces-smeared room, stripped naked, and left on the floor with no mattress. He requested to be rinsed-off because the chemicals were burning his eyes and skin, and he was bleeding from his exposed finger. CCDC denied his request for at least four days. Hours after the extraction, Plaintiff had an x-ray taken of his finger but did not see a doctor for two months. CCDC denied him pain medication that he was prescribed. Plaintiff's alleges that his finger is permanently disfigured as a result of these events. He also alleges that he suffers from an underlying mental disorder, spine injury, and emotional trauma.


         a. Motion for Temporary Restraining Order or Injunctive Relief

         A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter, 555 U.S. 7, 20 (2008)). A preliminary injunction may issue under the “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a preliminary injunction by demonstrating “that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor, ” in addition to the other Winter elements. Id. at 1134-35 (citation omitted).

         A temporary restraining order (“TRO”) may be issued without notice to the adverse party only if the moving party: (1) provides a sworn statement clearly demonstrating “that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, ” and (2) sets forth the efforts made to notify the opposing party and why notice should not be required. Fed.R.Civ.P. 65(b) (1). TROs issued without notice “are no doubt necessary in certain circumstances, but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974) (citation omitted).

         Injunctions affecting prison conditions “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 the harm.” 18 U.S.C. § 3626(a)(2).

         b. Due Process Challenge to Excessive Force in ...

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