Nance v. Miser et al

Filing 35

ORDER that the reference to the Magistrate Judge is withdrawn as to Plaintiff's "Order to Show Cause for a Preliminary Injunction and Temporary RestrainingOrder 22 and it is denied. Signed by Senior Judge Robert C Broomfield on 12/20/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Keith P. Nance,
Plaintiff,

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vs.

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Allen Miser, et al.,
Defendants.

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No. CV 12-0734-PHX-RCB (DKD)

ORDER

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Plaintiff Keith P. Nance, an inmate in the custody of the Arizona Department of

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Corrections (ADC), filed this pro se civil rights action. (Doc. 9.) Plaintiff has filed an

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“Order to Show Cause for a Preliminary Injunction and Temporary Restraining Order,”

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which Defendants oppose.1 (Docs. 22, 27.) The Court will deny the motion.

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I.

Background

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On screening the First Amended Complaint, the Court determined that Plaintiff

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sufficiently stated a claim against ADC employees Miser, Vicklund, Linderman, and Patton

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for denial of a Halal diet and a shaving waiver in violation of his religious exercise and equal

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protection rights. (Doc. 14.) Plaintiff seeks damages and injunctive relief.

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II.

Preliminary Injunction

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A.

Legal Standard

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A preliminary injunction is an extraordinary and drastic remedy and “one that should

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Vicklund has not been served. (Doc. 31.)

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A.

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Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)). An

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injunction may be granted only where the movant shows that “he is likely to succeed on the

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merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc.

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v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The movant has the burden of

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proof on each element of the test. Environmental Council of Sacramento v. Slater, 184 F.

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Supp. 2d 1016, 1027 (E.D. Cal. 2000). A Request for a TRO is governed by the same

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general standards that govern the issuance of a preliminary injunction. See New Motor

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Vehicle Bd. V. Orrin W. Fox. Co., 434 U.S. 1345, 1347 n. 2 (1977); Los Angeles Unified

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Sch. Dist. V. U.S. Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1982).

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Under the “serious questions” version of the sliding-scale test, a preliminary

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injunction is appropriate when a plaintiff demonstrates that “serious questions going to the

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merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.” Alliance

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for the Wild Rockies v. Cottrell, 632 F. 3d 1127, 1134-35 (9th Cir. 2011), citing Lands

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Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc). This approach requires that

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the elements of the preliminary injunction test be balanced, so that a stronger showing of one

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element may offset a weaker showing of another. “‘[S]erious questions going to the merits’

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and a balance of hardships that tips sharply towards the plaintiff can support issuance of a

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preliminary injunction, so long as the plaintiff also shows that there is a likelihood of

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irreparable injury and that the injunction is in the public interest.” Id. at 1135

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The Prison Litigation Reform Act (PLRA) also imposes requirements on prisoner

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litigants who seek preliminary injunctive relief against prison officials. “Preliminary

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injunctive relief must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means necessary

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to correct that harm.” 18 U.S.C. § 3626(a)(2). Thus, § 3626(a)(2) limits the court’s power
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to grant preliminary injunctive relief to inmates; “no longer may courts grant or approve

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relief that binds prison administrators to do more than the constitutional minimum.” Gilmore

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v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).

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Generally, an injunction should not issue if it “is not of the same character, and deals

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with a matter lying wholly outside the issues in the suit” (id., citing Kaimowitz v. Orlando,

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Fla., 122 F.3d 41, 43 (11th Cir. 1997)).

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B.

Plaintiff’s Contentions

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Plaintiff asks the Court to enter an order prohibiting Defendants, their agents, or

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employees from transferring him from his present location in South Unit in Florence,

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Arizona. (Doc. 22 at 2.) He asserts that he has the right to petition for redress of grievances

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without retaliation and that retaliation for addressing free exercise of religion violates the

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Constitution. He argues that to justify transfers, a regulation must protect an important or

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substantial interest of the prison and be necessary to achieving that interest. Plaintiff asserts,

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on information and belief, that in the past, prisoners have been placed in administrative

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segregation without cause, denied proper food or hygiene items, transferred to another prison,

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and had their legal papers intercepted because they engaged in protected conduct. He claims

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that he lives in fear of adverse action as a result of his protected conduct. (Id.)

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Plaintiff addresses the elements of a preliminary injunction. (Id. at 4-9.) As to

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irreparable harm, he asserts that because the ADC religious-dietary program places

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significant pressure on inmates to abandon their religious beliefs by forcing them to eat non-

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Halal diets, it imposes a substantial burden on his religious practice and that he will suffer

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irreparable harm. (Id. at 8.) Plaintiff submits a lengthy affidavit setting out the facts of his

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underlying case.

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Defendants respond. (Doc. 27.) They assert that Plaintiff’s motion seeks to enjoin

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ADC, a non-party, from transferring Plaintiff because he believes that other inmates have

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been discriminated against for filing lawsuits. (Id. at 2.) They contend that they are unaware

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of any plans to transfer Plaintiff. They attach the declaration of Stacy Crabtree, Correctional

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Administrator V overseeing institutional assignment of inmates, which confirms this. (Id.
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at 3.) They also argue that Plaintiff has not demonstrated irreparable harm. (Id. at 4.)

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Plaintiff replies that in Abdullah v. Ryan, CV-08-255-TUC-CKJ, the inmate/plaintiff

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received an order enjoining the defendant ADC officials from further disciplining him, where

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the disciplinary action had led to reclassification and a transfer from a security-Level III to

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a security-Level IV unit. (Doc. 32 at 3.) Plaintiff alleges that his own rights continue to be

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violated by denial of his religious diet. (Id. at 3, 6.) He also alleges that his right of access

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to the court has been compromised when mail from the Department of Justice was opened

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outside his presence. (Id. at 3, 6.)
C.

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Analysis

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The Court will deny the motion. The motion is not of the same character as the issues

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in the lawsuit, does not attribute any alleged misconduct to Defendants, and fails to

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demonstrate at least one of the elements necessary for a preliminary injunction—irreparable

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harm.

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As noted, Plaintiff’s First Amended Complaint seeks damages and injunctive relief

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regarding denial of a Halal diet. Plaintiff now seeks an order prohibiting a transfer based on

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his information and belief as to treatment of other, unnamed inmates who have filed lawsuits.

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Likewise, to the extent Plaintiff complains about his mail, that is not the issue in the lawsuit,

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and the motion seeks no relief regarding the mail. In addition, Plaintiff makes no showing

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that the mail problems were related to the filing of his lawsuit, and he raises the matter for

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the first time in his reply. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir.

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2003) (declining to consider an issue raised for the first time in a reply brief). Moreover, a

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prisoner has no constitutional right to enjoy a particular security classification or to be

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housed in a particular facility. Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (no liberty

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interest protected by the Due Process Clause is implicated in a prison’s reclassification and

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transfer decisions).

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To meet the irreparable harm requirement, Plaintiff must do more than simply allege

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that he fears retaliation; he must demonstrate imminent harm from failure to provide the

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requested relief. See Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th
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Cir. 1988). This requires Plaintiff to demonstrate by specific facts that there is a credible

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threat of immediate and irreparable harm to him. Fed. R. Civ. P. 65(b). Mere “[s]peculative

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injury does not constitute irreparable injury sufficient to warrant granting a preliminary

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injunction.” Caribbean Marine, 844 F.2d at 674. Plaintiff alleges no facts suggesting that

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he is in danger of being transferred for retaliatory purposes. He argues that he is irreparably

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harmed by denial of a Halal diet, but that is not the relief he seeks in his “Order to Show

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Cause for a Preliminary Injunction and Temporary Restraining Order.”

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As to Abdullah, CV-08-255-TUC-CKJ, Plaintiff is correct that the Court entered a

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preliminary injunction in that case, which involved a shaving regulation that the plaintiff, a

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practicing Muslim, asserted violated his religious exercise. (Doc. 104.) But the injunction

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was issued only after the defendants’ Motion for Summary Judgment was denied as to the

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plaintiff’s request for injunctive relief and where the record showed that the plaintiff had

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received numerous disciplinary tickets for violating the shaving policy. (Id., docs. 74, 104

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at 1-2.) Plaintiff here has not shown that he is threatened with irreparable harm or any actual

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harm.

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Plaintiff’s Motion will be denied.

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IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to

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Plaintiff’s “Order to Show Cause for a Preliminary Injunction and Temporary Restraining

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Order” (Doc. 22) and it is denied.

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DATED this 20th day of December, 2012.

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