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Garrison v. Nevada Department of Corrections

United States District Court, D. Nevada

October 18, 2019




         This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

         Plaintiff has filed a Motion for Temporary Restraining Order and/or Preliminary Injunction seeking an order enjoining Defendants from transferring him from his current housing assignment at Lovelock Correctional Center (LCC). (ECF No. 61.)[1] Defendants filed a response. (ECF No. 65.) Plaintiff filed an untimely reply. (ECF No. 78.)

         After a thorough review, it is recommended that Plaintiff's motion be denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Third Amended Complaint (TAC), ECF No. 34.) The events giving rise to this action took place while Plaintiff was housed at High Desert State Prison (HDSP) and Ely State Prison (ESP). (Id.) He is currently housed at Lovelock Correctional Center (LCC). Plaintiff was allowed to proceed with claims against defendants Guy Brown, Julie Matousek, and Doe Prison Officials (once Plaintiff identifies them).

         On screening the TAC, Plaintiff was allowed to proceed with a retaliation claim and an Eighth Amendment deliberate indifference to serious medical needs claim. (Screening Order, ECF No. 35.)

         The retaliation claim is against Doe prison officials and is based on allegations that Plaintiff filed several grievances and complained to the Inspector General's Office about his inability to see an ear, nose and throat specialist (ENT) for his throat pain, and Doe prison officials transferred him to ESP before he obtained his throat surgery in retaliation for filing grievances.

         The Eighth Amendment claim is based on allegations that prison officials and medical staff knew Plaintiff had severe throat pain, but did nothing to treat it. After he contacted the Inspector General's Office, prison officials sent him to an ENT who diagnosed him as having a large cyst in his throat and recommended immediate surgery. Before he could receive the surgery, prison officials transferred him to ESP, where Matousek took away his medication for four months. When he returned to see the ENT after four months, he had a massive infection. Again, prison officials took away his medication to treat the infection. When he finally had his overdue throat surgery, Brown took away his medication causing another severe infection in his throat.

         In his motion for temporary restraining order and/or preliminary injunction, Plaintiff seeks an order enjoining defendants from transferring Plaintiff due to "court and his medical needs," asserting that they allegedly transferred in the past in retaliation for filing grievances.


         The purpose of a preliminary injunction or temporary restraining order is to preserve the status quo if the balance of equities so heavily favors the moving party that justice requires the court to intervene to secure the positions until the merits of the action are ultimately determined. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

         Injunctions and restraining orders are governed procedurally by Federal Rule of Civil Procedure 65, but case law outlines the substantive requirements a party must satisfy to obtain an injunction or restraining order. See Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319 (1999) ("[T]he general availability of injunctive relief [is] not altered by [Rule 65] and depend[s] on traditional principles of equity jurisdiction.").

         A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). Instead, in every case, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 23 (2008) (internal quotation marks and citation omitted). The instant motion requires that the court determine whether Plaintiff has established the following: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Id. at 20 (citations omitted).). The Ninth Circuit has held that "serious questions going to the merits and a hardship balance that tips ...

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