United States District Court, D. Nevada
RICHARD F. BOULWARE II, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Brian Borenstein's Plaintiff's
Motion to Set Aside Ruling. ECF No. 5. Plaintiff alleges that
he is being evicted by Defendant Nellis Gardens Apartments
because he is disabled and has a service dog. The Court
issued a Temporary Restraining Order which expires May 8,
2019. ECF Nos. 6, 7, 14. For the reasons below, the Court
denies Plaintiff's Motion to Set Aside Ruling and
declines to order ongoing preliminary relief.
filed a complaint and application for leave to proceed in
forma pauperis on March 21, 2019. ECF No. 1. On April 4,
2019, Plaintiff filed the instant Motion to Set Aside Ruling,
seeking to set aside an eviction order issued by the state
Justice Court. ECF No. 5.
April 10, 2019, Plaintiff filed a Motion for Temporary
Restraining Order. ECF No. 6. The Court granted leave to
proceed in forma pauperis and issued a Temporary
Restraining Order. ECF No. 7. Based on Plaintiff's
allegations that Defendant was evicting Plaintiff on the
basis of his service dog, the Court found that Plaintiff
raised serious questions as to the merits of his Fair Housing
Act claim. The Court also found that the discontinuation of
electricity to Plaintiff's residence created a likelihood
of irreparable harm due to Plaintiff's dependence on a
April 16, 2019, the Court appointed pro bono counsel Joseph
Mott to represent Plaintiff as to the Temporary Restraining
Order and any possible preliminary injunction. ECF No. 10.
Court held a hearing on April 22, 2019. ECF No. 14. The Court
heard both parties' representations regarding
Plaintiff's service dog. The Court extended the Temporary
Restraining Order through May 8, 2019 pursuant to Rule
65(b)(2) of the Federal Rules of Civil Procedure and ordered
that Plaintiff ensure his service dog is muzzled while
outside for the duration of the restraining order.
1, 2019, Defendant filed its Response to Plaintiff's
Motion to Set Aside. ECF No. 15. On May 3, 2019, Plaintiff
filed his Reply. ECF No. 16.
6, 2019, the Court held a hearing regarding the need for any
ongoing preliminary injunctive relief. ECF No. 17. The Court
now denies the Motion to Set Aside and finds that no ongoing
preliminary injunctive relief is merited at this time.
Court makes the following factual findings. To the extent
these findings contradict the Court's findings in its
April 10, 2019 order, the Court instead adopts its instant
findings below on the basis of the now-developed record.
resides at 4255 North Nellis Boulevard, Unit 1008, Las Vegas,
Nevada 89115, a property owned and managed by Defendant.
Plaintiff is a disabled person who utilizes a service dog,
which Defendant previously accommodated for several months
without incident. Plaintiff's former service dog passed
away in approximately December 2018, and Plaintiff acquired a
new service dog in approximately January 2019. Plaintiff
obtained the same breed and called his new dog by the same
name as his previous dog.
new dog possesses an aggressive temperament and has caused
problems in the Nellis Gardens residential community.
Plaintiff's dog has lunged at residents, chased children
and dogs, and bitten at least one other dog. Several
residents in the complex are afraid of Plaintiff's dog
dues to its aggressive demeanor. Defendant has repeatedly
requested that Plaintiff muzzle the dog and Plaintiff has
repeatedly failed to do so.
February 2019, Defendant initiated eviction proceedings on
the basis of Plaintiff's failure to control his new dog.
Defendant did not initiate these proceedings on the basis of