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Borenstein v. Garden

United States District Court, D. Nevada

May 9, 2019

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

          ORDER

          RICHARD F. BOULWARE II, UNITED STATES DISTRICT JUDGE

         Because 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.

         I. PROCEDURAL BACKGROUND

         Plaintiff 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.

         On 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 breathing machine.

         On 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.

         The 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.

         On May 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.

         On May 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.

         II. FACTUAL FINDINGS[1]

         The 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.

         Plaintiff 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.

         Plaintiff's 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.

         In 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 ...


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