United States District Court, D. Nevada
REPORT AND RECOMMENDATION MOTION FOR CLARIFICATION
[ECF NO. 17], MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY
RESTRAINING ORDER [ECF NOS. 18, 19], MOTION FOR JOINDER [ECF
NO. 33], MOTION FOR RULING [ECF NO. 40]
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Ernest Guardado's Motion for
Clarification and/or in the Alternative Motion for Notice of
Service (ECF No. 17), Notice and/or Request for Preliminary
Injunction and Temporary Restraining Order (ECF Nos. 18, 19),
Motion for Joinder (ECF No. 33), and Motion for Ruling on
Motion for Clarification (ECF No. 40). For the reasons
discussed below, Plaintiff's motion for clarification and
ruling (ECF Nos. 17 and 40) should be granted and his motions
for preliminary injunction, temporary restraining order, and
joinder (ECF Nos. 18, 19, 33) should be denied.
FOR CLARIFICATION AND RULING
Court screened Plaintiff's complaint on May 9, 2018. (ECF
No. 5). In the body of the Order, the Court stated that
Plaintiff “has pled a viable First Amendment
retaliation claim against Bryant and Guice” and
“has stated a colorable claim of supervisory liability
against Neven, Williams, Tristan, Dzurenda, Filson, Plumlee,
and Thompson.” (Id. at 7, 12). However, the
Conclusion of the Order only states that “[t]his case
will proceed on Guardado's First Amendment retaliation
claim against only defendants Guice and Bryant. All other
claims against all other defendants are dismissed without
prejudice unless otherwise stated in this order.”
(Id. at 13; see also ECF No. 7).
now moves for clarification of the Court's screening
order. (ECF No. 17, 40). Plaintiff has contacted counsel for
Defendants, and there is confusion regarding whether
Plaintiff's supervisory liability claim survived the
Court's screening. (ECF No. 17 at 2).
screening Order, the Court held that Plaintiff “has
stated a colorable claim of supervisory liability against
Neven, Williams, Tristan, Dzurenda, Filson, Plumlee, and
Thompson.” (ECF No. 5 at 12). The Conclusion of the
Order overlooked the supervisory liability claim when listing
the claims that would proceed. (Id. at 13).
Therefore, the Court should grant Plaintiff's motion for
clarification and ruling (ECF Nos. 17, 40) and issue an Order
(1) stating that Plaintiff's supervisory liability
against Neven, Williams, Tristan, Dzurenda, Filson, Plumlee,
and Thompson will proceed in this case and (2) directing the
Attorney General's Office to advise the Court whether it
will enter a limited notice of appearance on behalf of all
Defendants in the case.
FOR PRELIMINARY INJUNCTION AND TEMPORARY RETRAINING
asserts that the law librarians at High Desert State Prison,
where Plaintiff is incarcerated, will not allow Plaintiff to
make copies of other inmates' affidavits that support
Plaintiff's case. (ECF No. 18 at 1-2). Plaintiff asks for
an order “enjoining the defendants, their successors in
office, agents and employees and all other persons acting in
concert and participation with them from preventing plaintiff
from making copies of affidavits and declarations of inmates
who have been witnesses to plaintiff's claims.”
(Id. at 1). Plaintiff argues that the policy against
copies will make him unable to provide the Court or
Defendants with evidence in opposition to a motion for
summary judgment. (Id. at 3-4). No. motion for
summary judgment has been filed by Defendants, and it does
not appear that any motion is imminent. Defendants argue that
injunctive relief is not appropriate against non-parties and
injunctive relief is not justified in this case. (ECF No. 22
is seeking to use a preliminary injunction and temporary
restraining order beyond their intended purpose. Injunctions
and retraining orders are binding on the parties, their
agents, and “persons who are in active concert or
participation” with them. Fed.R.Civ.P. 65(d)(2). The
High Desert State Prison law librarians are not parties in
this case or any parties' agents. Injunctions and
restraining orders are meant to preserve the status quo or
positions of the parties on a short-term basis pending the
final outcome of an issue. See Granny Goose Foods, Inc.
v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of
Alameda Cty., 415 U.S. 423, 439 (1974); Univ. of
Texas v. Camenisch, 451 U.S. 390, 395 (1981).
Plaintiff's motion is asking the Court to overturn a law
library policy. This would not maintain the status quo.
addition, Plaintiff has failed to establish the possibility
of an irreparable injury or to show the balance of hardships
tips in his favor. Roe v. Anderson, 134 F.3d 1400,
1402 (9th Cir. 1998), aff'd sub nom. Saenz v.
Roe, 526 U.S. 489 (1999). There is no pending motion for
summary judgment, nor does one appear to be imminent.
Plaintiff has the originals of the affidavits he asserts
support his case, and it is not clear why the inability to
make copies of them would prejudice his ability to pursue his
the Court should deny Plaintiff's motions for preliminary
injunction and restraining order. (ECF Nos. 18, 19).
moves to consolidate his case with a case filed by Curtis
Brady, 2:17-cv-02534-JAD-CWH. (ECF No. 33 at 1). Plaintiff
argues that the complaints in the two cases are identical
because he and Brady were cellmates during the incidents at
issue, and consolidating the cases would expedite matters.
(Id. at 3). In response, Defendants argue that
Plaintiff and Brady's complaints had different claims
survive the Court's screening and they “have not
demonstrated that there will be a unison of voice when it
comes to litigation decisions.” (ECF No. 36 at 2-3). In
his reply, Plaintiff asserts that “Brady has a very
limited education and no understanding of the legal system.
Plaintiff has and continues to assist Brady in the filing of
pleadings and motions.” (ECF No. 38 at 3). Plaintiff
also states that “[s]hould this Court choose to appoint
counsel, counsel would be able to represent both Plaintiff
and Brady.” (Id.).
Federal Rule of Civil Procedure 42(a), “[i]f actions
before the court involve a common question of law or fact,
the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions;
or (3) issue any other orders to avoid unnecessary cost or
delay.” “If the court determines that common
questions are present it must then balance the savings of
time and effort that consolidation will produce against any
inconvenience, delay, confusion, or prejudice that may
result.” Hadel v. Willis Roof Consulting,
Inc., No. 2:06-cv-01032-RLH, 2011 WL 484289, at *1 (D.
Nev. Feb. 7, 2011) (citing Huene v. United States,743 F.2d 703, 704 (9th Cir.1984)). “[C]onsolidation
under Rule 42(a) is a matter committed to the district