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Anderson v. Dzurenda

United States District Court, D. Nevada

July 24, 2019

JOSEPH M. ANDERSON, Plaintiff,
v.
JAMES DZURENDA, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE [1]

         This case involves a civil rights action filed by Plaintiff Joseph M. Anderson (“Anderson”) against forty current and former Nevada Department of Corrections (“NDOC”) employees (collectively referred to as “Defendants”). Currently pending before the Court are two motions for temporary restraining order and preliminary injunction filed by Anderson. (ECF Nos. 19, 20, 63.)[2] Defendants filed oppositions to both motions (ECF Nos. 26, 69), and Anderson replied. (ECF Nos. 27, 74.) For the reasons stated below, the Court recommends Anderson's motions for temporary restraining order or preliminary injunction (ECF Nos. 19, 20, 63) be denied.

         I. Factual Background

         Anderson is an inmate in the custody of the NDOC, and is currently housed at Lovelock Correctional Center (“LCC”) in Lovelock, Nevada. (ECF No. 23.) Anderson is a Wicca practitioner who practices his religion as a solitary practitioner rather than with a group of other Wiccans. (ECF No. 23.) As part of the Wicca religion, practitioners utilize certain religious objects. Access to religious objects is predicated upon Administrative Regulation (“AR”) 810, which is entitled “Religious and Faith Group Activities and Programs.” (Id.) In pertinent part, AR 810 states “[g]roup items will not be kept by individuals. These items will be kept in the group storage box . . . [p]ersonal religious items may ONLY be purchased through Canteen . . . [and] inmates are permitted to display religious items . . . [and] have a religious altar in their cells.” (ECF No. 26-2 at pp. 4.)

         Prior to the implementation of this iteration of AR 810, Anderson could purchase religious objects directly from outside vendors.[3] (ECF No. 20.) The NDOC changed AR 810 on November 1, 2018, due to an incident at High Desert State Prison (HDSP). (ECF No. 26.) At that time, an inmate ordered religious oils from an un-vetted outside vendor, which were tested upon arrival to HDSP, and found to contain cocaine. (Id.) NDOC officials discussed how to prevent further such security breaches and determined the best way was for inmates to buy religious objects solely from the prison canteen, allowing NDOC officials to vet vendors beforehand. (Id.) As a result, costs of some religious objects increased and inmates have to submit requests to the chaplain for new objects to be added. (ECF Nos. 20, 26-2.)[4]

         Anderson filed numerous grievances about the changes to AR 810. (ECF Nos. 19, 20, 23.) The grievance process is governed by AR 740 Inmate Grievance Procedure, which provides grievances are to be filled out in quadruplicate. (ECF No. 26 at Ex. D, Ex. E.) The fourth page is for the inmate to keep for their records and does not include a date stamp or response. (Id.) The grievance coordinator records receipts, transmittals, actions and responses on all grievances to NOTIS, an electronic database. (Id.)

         Anderson did not receive a receipt for any of his grievances. (ECF No. 20.) Subsequently, his grievances were delayed, lost, or misplaced. (Id.) As a result, Anderson claims he was prejudiced in bringing this action. (ECF Nos. 20, 23.)

         II. Procedural History

         On November 13, 2018, Anderson submitted a first amended civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 23.) In the first amended complaint (“FAC”), Anderson asserted four claims for relief against Defendants. (Id.)

         Pursuant to 28 U.S.C. § 1915A(a), the Court screened Anderson's FAC on November 26, 2018. (ECF No. 22.) The Court determined all of the following stated a cause of action: (1) the portion of Count I alleging a Fourteenth Amendment equal protection claim; (2) the portion of Count I alleging a First Amendment free exercise of religion claim; (3) the portion of Count I alleging a First Amendment retaliation claim; (4) the portion of Count I alleging a Fourteenth Amendment access to courts claim; (5) the portion of Count II alleging an Eighth Amendment deliberate indifference to a serious medical need claim; and, (6) the portions of Count II alleging First Amendment retaliation claims. (ECF No. 22.)

         At issue in the instant motions for TRO or PI are the claims related to Anderson's rights under: (1) the Fourteenth Amendment equal protection clause; (2) the First Amendment free exercise clause; and, (3) the Fourteenth Amendment due process clause. (ECF Nos. 19, 20, 63.) Both motions argue AR 810 violates Anderson's rights under 42 U.S.C. § 2000cc, et. seq., the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and 42 U.S.C. § 1983 - specifically, violations of his First Amendment right to Free Exercise of his religion and his Fourteenth Amendment right to Equal Protection. (ECF Nos. 19, 20, 63.) Anderson alleges modifications to AR 810 place substantial burdens on his ability to practice his Wiccan faith by only allowing religious items to be purchased from the prison canteen or vetted sources, precluding three prior wholesalers and increasing the cost of religious items, such as oils and incense. (Id.)

         Additionally, the motions argue Defendants failed to enforce NDOC Administrative Regulation (“AR”) 740 when they did not provide Anderson with grievance receipts. (Id.) This failure resulted in prejudice to Anderson in bringing the current action, violating his Fourteenth Amendment rights to Due Process. (Id.) Based on the foregoing, Anderson argues he is likely to succeed on the merits and will suffer irreparable harm if a temporary restraining order (“TRO”) or preliminary injunction (“PI”) are not granted. (Id.) Furthermore, he argues that granting a TRO or PI would be in the public interest and that the balance of equities favors him, thus satisfying all four necessary factors. (Id.)

         In response, Defendants argue Anderson has failed to establish any of the four necessary factors for the imposition of a TRO or PI at this time. (ECF Nos. 26, 69.) As to Anderson's claims regarding AR 810, Defendants argue: (1) Anderson will not suffer irreparable harm as a result of the modifications because he can obtain the necessary religious objects and is not restricted from practicing his religion; (2) Anderson is not likely to succeed on the merits of either his equal protection claim or his free exercise claim because Defendants have a legitimate penological interest and they adopted the least restrictive means possible in implementing the modifications; and, (3) the balance of equities does not favor injunctive relief as it would adversely impact Defendants' ability to operate LCC. (Id.) As to Anderson's claims regarding AR 740, Defendants argue: (1) Anderson will not suffer irreparable harm if he does not receive a receipt for submitted grievances because all inmates are required to keep a copy of the grievance; and, (2) the law affords protections to inmates who are unable to access the grievance procedure. (Id.)

         In reply, Anderson alleges Defendants' opposition is misleading and he has established each necessary element for injunctive relief. (ECF Nos. 27, 74.) For the reasons stated below, the Court recommends Anderson's motions for temporary restraining order or preliminary injunction (ECF Nos. 19, 20, 63) be denied.

         III. Legal Standard

         Preliminary injunctions and temporary restraining orders are governed by the same legal standard. See Quiroga v. Chen, 735 F.Supp.2d 1226, 1228 (D. Nev. 2010). Such remedies are “extraordinary and drastic . . . [and] never awarded as of right[.]” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations omitted). When moving for a preliminary injunction or TRO, the plaintiff must make several showings: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; (3) the equities balance in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). In the Ninth Circuit, courts are to apply a “‘sliding scale approach'” in evaluating the motion, “such that ‘serious questions going to the merits and a balance of hardships that tips sharply towards the Plaintiff can support issuance of a preliminary injunction, so long as the Plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.'” Arc of Cal. v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)).

         Other considerations may apply to injunctive relief within the prison context. First, a more stringent standard applies where a party seeks affirmative relief. Ordinarily, preliminary injunctive relief aims to preserve the status quo pending a determination of the case on the merits. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009). When “a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction.” Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). Thus, mandatory preliminary relief is only warranted where both the facts and the law clearly favor the moving party and “extreme or very serious damage will result.” Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 2009) (internal quotation omitted). Second, the Prison Litigation Reform Act (“PLRA”) provides that, with regard to prison conditions,

[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity . . . in tailoring any preliminary relief.

18 U.S.C. § 3626(a)(2). Therefore, the PLRA “operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the bargaining power of prison administrators- no longer may courts grant or approve relief that binds prison administrators to do more than the constitutional minimum.” Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000).

         IV. Discussion

         In order to obtain the extreme remedy of injunctive relief the moving party must establish: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his favor; and, (4) injunctive relief is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted); Am. Trucking Ass'ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). As noted above, Anderson's claims are as follows: (1) a violation of RLUIPA, specifically his Fourteenth Amendment right to equal protection and First Amendment right to free exercise of his religion; and, (2) a violation of his Fourteenth Amendment right to due process. (ECF Nos. 23, 19, 20, 63.) These claims will be addressed in turn.

         A. ...


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