United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Brian Borenstein's Application for
Leave to Proceed in forma pauperis (ECF No. 4),
Plaintiff's Motion to Set Aside Ruling (ECF No. 5), and
Plaintiff's Motion for Temporary Restraining Order (ECF
No. 6). Plaintiff alleges that he is being evicted by
Defendant Nellis Gardens Apartments because he is disabled
and has a service dog. For the reasons below, the Court
grants Plaintiff's in forma pauperis application
and issues a temporary restraining order staying
Plaintiff's eviction and requiring the immediate
restoration of Plaintiff's electricity.
filed a complaint and application for leave to proceed in
forma pauperis on March 21, 2019. ECF No. 1. On March
22, 2019, the Court denied the application because Plaintiff
had failed to specify the amount of his medical expenses and
debts. ECF No. 3. Plaintiff filed a second application on
April 4, 2019 including his outstanding medical debt. ECF No.
4. Because Plaintiff has resolved the identified deficiency,
the Court now grants the application.
April 4, 2019, Plaintiff also filed the instant Motion to Set
Aside Ruling Justice Court No. 19EN00790. ECF No. 5. On April
10, 2019, Plaintiff filed the instant Motion for Temporary
Court makes the following factual findings based upon the
allegations in Plaintiff's complaint and pending motions.
ECF Nos. 1-1, 5, 6.
resides at 4255 North Nellis Boulevard, Unit 1008, Las Vegas,
Nevada 89115. Plaintiff is a disabled person who sought
permission to obtain, and obtained, a service dog in January
2019. Plaintiff's landlord has been discriminatorily
abusing and threatening him since he received his service
dog. Plaintiff filed a complaint with the housing authority.
February, Plaintiff received a fake and retaliatory eviction
notice. Plaintiff has since been harassed with threats of
bodily injury and threats to kill his service dog.
March 2019, Defendant initiated an unlawful detainer action
against Plaintiff in state court. On April 1, 2019, the state
court issued an Order for Summary Eviction.
alleges that the eviction is unlawful because it is based on
his utilization of a service dog for his disability.
Plaintiff has offered to pay rent but has been refused.
Defendant has recently shut off Plaintiff's electricity,
putting Plaintiff's life in danger because he depends on
a breathing machine.
analysis for a temporary restraining order is
“substantially identical” to that of a
preliminary injunction. Stuhlbarg Intern. Sales Co, Inc.
v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7
(9th Cir. 2001). 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 tips 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 also 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 ...