United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 61
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
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.
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.
Defendants filed a response. (ECF No. 65.) Plaintiff filed an
untimely reply. (ECF No. 78.)
thorough review, it is recommended that Plaintiff's
motion be denied.
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).
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.)
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.
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.
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.
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
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.").
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 ...