Jackson v. Lozano et al

Filing 14

ORDER that the Attorney General's Office shall advise the Court within seven (7) days of the date of entry of this order whether it can accept service of process for the named Defendants and enter a general appearance. Defendants shall fil e a response to Plaintiff's 12 Motion for Temporary Restraining Order within seven (7) days of the date of entry of this order. Signed by Chief Judge Gloria M. Navarro on 4/30/2015. (Copies have been distributed pursuant to the NEF - Order and 12 Motion electronically served to the Office of the Attorney General of the State of Nevada, attention Kat Howe - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RAYMOND JACKSON,

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Plaintiff,
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v.
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ALEXIS LOZANO et al.,
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Defendants.
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_________________________________ )

2:14-cv-1922-GMN-NJK
ORDER

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I.

DISCUSSION
On March 30, 2015, this Court entered a screening order in this case and permitted Plaintiff’s

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excessive force, deliberate indifference to serious medical needs, and state law claims proceed in

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part. (ECF No. 7 at 9-10). Plaintiff had alleged excessive force against Defendants Correctional

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Officers Thompson, Lozano, and Carrillo at High Desert State Prison (“HDSP”) for shooting

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Plaintiff in the hand once he had been lying on the ground. (Id. at 3, 6). The Court stayed the case

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for 90 days to give the parties an opportunity to settle their dispute. (Id. at 10). A mediation

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conference has not yet been set.

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On April 20, 2015, Plaintiff filed an emergency motion for temporary restraining order

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(“TRO”) to prevent death and/or bodily harm.1 (ECF No. 12 at 1). In the motion, Plaintiff seeks a

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restraining order to prevent his transfer to Ely State Prison (“ESP”) where he will be beaten or killed

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in retaliation for filing this lawsuit. (Id.).

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In the motion, Plaintiff alleges the following: Since coming to HDSP, Plaintiff has had two

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state-sponsored attempts on his life. (Id. at 2). The first attempt involved the shooting of his hand

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and the second one involved prison officials placing him in a cell with a dangerous inmate after the

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shooting. (Id.). There is a culture at HDSP to encourage the abuse and shooting of inmates. (Id.).

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Prison officials have targeted Plaintiff to be murdered or crippled to a point where he can no longer

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proceed with this litigation. (Id.). Plaintiff seeks to be transferred to a federal or out-of-state facility

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The Court acknowledges that the 90-day stay prohibits papers and pleadings from being filed during
the stay. However, the Court makes an exception to the filing of papers and pleadings in relation to the instant
motion for temporary restraining order.

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before he is fatally harmed. (Id.).
In the motion, Plaintiff alleges the following facts: On April 11, 2015, Officer Romero went

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to Plaintiff’s cell door and said, “I hear you are going to Ely Prison and you’ll be stomped out, maybe

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even killed because all the shit [you’re] causing behind your lawsuit.” (Id. at 2-3). Plaintiff

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responded, “They can’t do that.” (Id. at 3). Romero said, “We work as a unit, so the warden will

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send you up there and let them handle your ass, good luck.” (Id.). Inmate David Fennel heard the

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conversation and is willing to testify.2 (Id. at 3, 9). On April 13, 2015, Sgt. Bart went to Plaintiff’s

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door and said, “You really did it this time [Plaintiff], the warden is done with you and you will be on

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an emergency overnight to Ely State Prison if not this week, next week for sure.” (Id. at 3).

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Plaintiff responded that he “wasn’t trying to go for fear of what could happen” to him. (Id.). Bart

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told Plaintiff, “ah, [you’re] going whether you like it or not. It’ll be fun.” (Id.). This is the third

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attempt on Plaintiff’s life. (Id.). On April 8, 2015, correctional officers sat and watched Plaintiff

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fight for his life in his cell against another inmate. (Id.). Plaintiff had informed prison officials that

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he felt threatened by that inmate but they did nothing to prevent the attack against Plaintiff. (Id. at

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7). The correctional officer who shot Plaintiff was promoted. (Id.). Plaintiff is in fear for his life

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and does not want to die. (Id. at 3). Plaintiff makes arguments for each factor. (Id. at 5-6).

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Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never

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awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 (2008). “A plaintiff

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seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is

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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips

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in his favor, and that an injunction is in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los

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Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). Furthermore, under

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the Prison Litigation Reform Act (“PLRA”), preliminary injunctive relief must be “narrowly drawn,”

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must “extend no further than necessary to correct the harm,” and must be “the least intrusive means

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necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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According to inmate David Fennel’s affidavit, he heard Romero tell Plaintiff, “You better pray, or do
what you can, because word is [they’re] going to stomp you out and possibly kill you up at Ely Prison for all the
shit [you’re] causing with your lawsuit.” (ECF No. 12 at 9).

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The Court finds that Plaintiff has established a colorable likelihood of success on the merits

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as to his complaint which survived screening and as to the retaliation claim alleged in his motion for

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TRO. Prisoners have a First Amendment right to file prison grievances and to pursue civil rights

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litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). “Without those

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bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison

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injustices. And because purely retaliatory actions taken against a prisoner for having exercised those

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rights necessarily undermine those protections, such actions violate the Constitution quite apart from

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any underlying misconduct they are designed to shield.” Id.

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To state a viable First Amendment retaliation claim in the prison context, a plaintiff must

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allege: “(1) [a]n assertion that a state actor took some adverse action against an inmate (2) because of

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(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Id. at 567-68.

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Based on the allegations in the motion for TRO, after Plaintiff filed this lawsuit, prison

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officials housed Plaintiff with a known dangerous inmate and refused to move Plaintiff after he

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informed prison officials that he felt threatened by that inmate. As a result, the other inmate attacked

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Plaintiff. Additionally, based on the allegations, prison officials have specifically told Plaintiff that

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he is being transferred to ESP to be severely beaten or killed because he filed this lawsuit. As such,

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the Court finds that there is a colorable likelihood of success on the merits of this claim. Plaintiff

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also has alleged that he will suffer irreparable harm if he is transferred because prison officials have

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told him that he will be severely beaten or killed at ESP for filing this lawsuit. The balance of

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equities and the interests of justice appear to tip in Plaintiff’s favor because the Eighth Amendment

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prevents excessive force by prison officials and creates a duty for prison officials to protect prisoners

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from violence at the hands of other prisoners.

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The Court orders the Attorney General’s Office to advise the Court within 7 days of the date

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of the entry of this order whether it will enter a general notice of appearance on behalf of Defendants.

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Additionally, based on the nature of the allegations, Defendants shall also have 7 days from the date

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of this order to file their response to Plaintiff’s motion for temporary restraining order.
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II.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Attorney General’s Office shall advise

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the Court within seven (7) days of the date of entry of this order whether it can accept service of

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process for the named Defendants and enter a general appearance. In its notice, the Attorney

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General’s Office shall advise the Court and Plaintiff of: (a) the names of the Defendants for whom it

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accepts service; (b) the names of the Defendants for whom it does not accept service, and (c) the

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names of the Defendants for whom it is filing last-known-address information under seal. As to any

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of the named Defendants for whom the Attorney General’s Office cannot accept service, the Office

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shall file, under seal, but shall not serve the inmate Plaintiff the last known address(es) of those

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Defendant(s) for whom it has such information.
IT IS FURTHER ORDERED that Defendants shall file a response to Plaintiff’s motion for
temporary restraining order (ECF No. 12) within seven (7) days of the date of entry of this order.
IT IS FURTHER ORDERED that the Clerk of the Court shall electronically serve a copy of

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this order and a copy of Plaintiff’s motion for temporary restraining order (ECF No. 12) on the

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Office of the Attorney General of the State of Nevada, attention Kat Howe.

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DATED this 30th day of April, 2015.

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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