United States District Court, D. Nevada
REPORT AND RECOMMENDATION (DOCKET NO. 34)
J. KOPPE, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's motion for a temporary
restraining order (“TRO”). Docket No. 34. The
Court has considered Plaintiff's motion and
Defendants' response. Docket Nos. 24, 37. No reply was
filed. See Docket. For the following reasons, the
Court RECOMMENDS that Plaintiff's motion
for a TRO be DENIED without prejudice.
Docket No. 34.
instant case involves claims against Defendants regarding
Plaintiff's diet at High Desert State Prison. See
generally Docket No. 7. Plaintiff alleges he is a member
of the Moorish Science Temple of America and must adhere to a
vegan diet. Id. at 4. Plaintiff alleges that,
although he was approved for a vegan diet, he was placed on a
“no-meat” diet, which contains food with animal
byproducts. Id. at 4. Plaintiff alleges that his
diet, violates, inter alia, his First Amendment
right of free exercise of religion, his right to equal
protection of the laws under the Fourteenth Amendment, and
his right against cruel and unusual punishment under the
Eighth Amendment. Id. at 4-11.
instant motion, Plaintiff submits that, subsequent to
Defendants filing their motion for summary judgment, he
“was informed that Defendants...were attempting to
forcibly remove Plaintiff from the ‘no meat' diet
and placed him on a new common-fare diet, ” which
Plaintiff submits “consists of ‘peanut
butter' as the only source of lunch [protein] 7 days a
week.” Docket No. 32 at 2. Plaintiff submits that the
proposed diet is “[protein] deficient, unhealthy, [and]
retaliatory [in] nature.” Id. at 2, 4.
Plaintiff requests a TRO to prevent Defendants from serving
him the common-fare diet. Id. at 5.
response, Defendants submit, inter alia, that
Plaintiff's motion should be denied because he failed to
file points and authorities in support of his request. Docket
No. 37 at 7; see also Local Rule 7-2. Defendants
further submit that Plaintiff fails to meet the standards
required for a TRO because he is unlikely to succeed on the
merits and will not suffer irreparable injury if his TRO is
not granted. Docket No. 37 at 5-7. Defendants submit that
“Plaintiff is only entitled to receive adequate
nutrition to maintain health, ” and that the food need
not be “tasty or aesthetically pleasing.”
Id. at 6 (internal citation omitted). Finally,
Defendants submit that Plaintiff's current diet is in
compliance with a vegan diet. Id.
is injunctive relief which is considered “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). The purpose of a TRO is to maintain the status
quo and prevent irreparable harm “just so long as is
necessary to hold a hearing, and no longer.” See
e.g., V'Guara Inc. v. Dec, 925 F.Supp.2d
1120, 1123 (D. Nev. 2013) (citing Granny Goose Foods,
Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 439 (1974).
to Fed.R.Civ.P. 65(b), the Court may issue a TRO only if
“specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and the movant's attorney
certifies in writing any efforts made to give notice and the
reasons why it should be required.” To obtain a TRO,
the moving party must establish each of the following: (1) a
likelihood of success on the merits; (2) a likelihood of
irreparable harm if injunctive relief is not granted; (3)
that the balance of equities is in his favor; and (4) that
public interest favors the injunctive relief. See
e.g., Winter, 555 U.S. at 20. In addition to
its consideration of the Winter factors, the Court
may issue a TRO under the “serious questions”
test. Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1134 (9th Cir. 2011). Under this test, the
Winter factors “are balanced, so that a
stronger showing of one element may offset a weaker showing
of another.” Id. at 1131. “Serious
questions going to the merits and a balance of the hardships
that 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.”
Id. at 1135 (citations omitted).
construing Plaintiff's motion liberally,  Plaintiff fails
to address, let alone establish, the necessary factors to
obtain a TRO. Here, Plaintiff has not adequately demonstrated
he will suffer irreparable harm. Docket No. 34. Plaintiff
submits that, on December 15, 2017, he “was informed
that Defendants ... were attempting to forcibly remove
Plaintiff from [his current] ‘no meat' diet”
and replace it with a “new common-fare diet, ”
which Plaintiff alleges “consists of ‘peanut
butter' as the only source of lunch [protein] 7 days a
week.” Docket No. 34 at 2. Plaintiff submits that the
new diet is, therefore, a protein-deficient diet.
Id. Defendants, however, submit that Plaintiff
continues receiving the no-meat diet, which “complies
with a vegan diet.” Docket Nos. 30 at 2, 30-1 at 3,
30-2 at 3. Plaintiff has not rebutted Defendants'
claim that he remains on the vegan-compliant diet. See
generally Docket. Therefore, Plaintiff fails to
establish an imminent harm. See e.g., Amylin
Pharms., Inc. v. Eli Lilly & Co., 456 Fed. App'x
676, 679 (9th Cir. 2001) (“To support injunctive
relief, harm must not only be irreparable, it must be
imminent; establishing a threat of irreparable harm in the
indefinite future is not enough”).
the Court proceeds with its analysis under the assumption
that Plaintiff has been placed on the new common-fare diet,
Plaintiff only makes conclusory assumptions that
“peanut butter is harsh on the digestive tract, clogs
the colon, and is not a sufficient source of [protein] by
itself 7 days a week, ” without establishing whether he
receives sufficient protein at other meals or how the protein
from peanut butter deprives him of adequate nutrition. Docket
No. 34 at 2, 4. See e.g., LeMaire v. Maass, 12 F.3d
1444, 1456 (9th Cir. 1993) (“The Eighth Amendment
requires only that prisoners receive food that is adequate to
the Court's finding that Plaintiff has not established an
imminent and irreparable harm, the Court does not reach the
remaining three Winter factors. See e.g., U.S.
Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F.Supp.3d 1063,
1070 (D. Nev. 2015) (reiterating that the Winter
factors are conjunctive and not a balancing test, meaning a
plaintiff must prove each element to obtain a TRO).
Additionally, pursuant to Fed.R.Civ.P. 65(b), Plaintiff fails
to include a written certification stating “any efforts
made to give notice [to the adverse party] and the reasons
why it should not be required.” See Kenfield v.
Berkebile, 2015 U.S. Dist. LEXIS 87393, at *4 (D. Mont.
July 6, 2015) (finding that the pro se plaintiffs
did not qualify for a TRO, in part, because they failed to
satisfy either of the requirements under Fed.R.Civ.P. 65(b)).