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Borenstein v. Garden

United States District Court, D. Nevada

April 10, 2019

BRIAN BORENSTEIN, Plaintiff,
v.
NELLIS GARDEN, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         Before 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.

         I. PROCEDURAL BACKGROUND

         Plaintiff 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.

         On 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 Restraining Order.

         II. FACTUAL FINDINGS

         The Court makes the following factual findings based upon the allegations in Plaintiff's complaint and pending motions. ECF Nos. 1-1, 5, 6.

         Plaintiff 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.

         In 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.

         In 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.

         Plaintiff 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.

         III. LEGAL STANDARD

         a. Preliminary Injunction

         The 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 ...


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