Peck v. Nevin et al

Filing 30

AMENDED ORDER Denying 27 Motion for Temporary Restraining Order and 28 Motion for Preliminary Injunction. Signed by Chief Judge Gloria M. Navarro on 7/11/2014. (Copies have been distributed pursuant to the NEF - SLR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Frank M. Peck, 4 Plaintiff, 5 6 vs. Dwight Nevin, et al. 7 Defendants. 8 9 ) ) ) ) ) ) ) ) ) Case No.: 2:13-cv-00782-GMN-CWH AMENDED ORDER Pending before the Court is the Motion for Temporary Restraining Order (ECF No. 27), 10 and the Motion for Preliminary Injunction (ECF No. 28), filed by pro se Plaintiff Frank M. 11 Peck, who is incarcerated at High Desert State Prison (See Compl., ECF No. 11). 12 I. 13 LEGAL STANDARD Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary 14 restraining orders, and requires that a motion for temporary restraining order include “specific 15 facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable 16 injury, loss, or damage will result to the movant before the adverse party can be heard in 17 opposition,” as well as written certification from the movant’s attorney stating “any efforts 18 made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b). 19 Temporary restraining orders are governed by the same standard applicable to 20 preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 21 F.Supp. 2d 1111, 1126 (E.D. Cal. 2001). Furthermore, a temporary restraining order “should 22 be restricted to serving [its] underlying purpose of preserving the status quo and preventing 23 irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose 24 Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974). 25 A preliminary injunction may be issued if a plaintiff establishes: (1) likelihood of Page 1 of 3 1 success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) 2 that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. 3 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Injunctive relief [is] an 4 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is 5 entitled to such relief.” Id. at 22. 6 The Ninth Circuit has held that “‘serious questions going to the merits’ and a hardship 7 balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming 8 the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v. 9 Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). 10 11 II. DISCUSSION Having reviewed Plaintiff’s pleading and briefing on the motion, and as discussed 12 below, the Court cannot find that Plaintiff has satisfied his burden to show that immediate and 13 irreparable injury, loss, or damage will result to him Plaintiff’s claims may be evaluated on the 14 merits. Therefore Plaintiff’s request for an injunction must be denied. 15 Here, Plaintiff alleges that he is being retaliated against by Warden Dwight Neven and 16 facility supervisor Scott Alexander, and “Nash” for filing grievances and pursuing lawsuits. 17 (ECF No. 27.) 18 Plaintiff alleges that he is being retaliated against “in the form of ‘torture’ by restricting 19 all the swamp coolers to LOW SPEED ONLY and ‘refusing to increase the blower speed and 20 or cleaning the return air system’ whereas the common [sic] area is semi cool.” (Id.) Plaintiff 21 alleges additional facts to support his claim of insufficient air conditioning based upon his 22 “having over 20 years in the HVAC and refrigeration industry.” (Id.) 23 Plaintiff requests an injunction ordering the warden to make adjustments to the air 24 conditioning and other environmental conditions, as well as a Court order dispatching a federal 25 monitor. (Id.) Page 2 of 3 1 Plaintiff provides no support for his allegation that the environmental conditions bear a 2 relationship to his previously filed grievances and lawsuits. Instead, Plaintiff conclusorily 3 states that he “has shown a pattern of retaliation (temporal proximity),” and that therefore he 4 “has great likelihood of success on the merits” supporting his request. (Id.) Plaintiff appears to 5 allege that the environmental conditions affect other inmates’ cells in addition to his own. (See 6 id.) 7 Appearing to address the irreparable harm element of the legal standard, Plaintiff alleges 8 that he is at risk of “suffer[ing] a stroke or some other heat related injury” based upon his 9 “having been hospitalized in Jan 2014 for meningitis.” (Id.) 10 Without more, the Court cannot find that Plaintiff has met his burden to show a 11 likelihood of success on the merits or serious questions going to the merits sufficient to justify 12 the issuance of a temporary restraining order or other injunction. This is particularly true where 13 Plaintiff’s allegations fail to support a finding of a likelihood of irreparable harm or that the 14 Court’s intervention, as requested, is necessary to maintain the status quo of Plaintiff’s claims. 15 III. 16 17 18 CONCLUSION IT IS HEREBY ORDERED that the Motion for Temporary Restraining Order (ECF No. 27) and the Motion for Preliminary Injunction (ECF No. 28) are DENIED. DATED this 11th day of July, 2014. 19 20 21 ___________________________________ Gloria M. Navarro, Chief Judge United States District Court 22 23 24 25 Page 3 of 3

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