Jackson v. Lozano et al

Filing 17

ORDER Denying 12 Motion for TRO. Signed by Chief Judge Gloria M. Navarro on 5/14/2015. (Copies have been distributed pursuant to the NEF - DC)

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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

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On March 30, 2015, this Court entered a screening order in this case and permitted
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Plaintiff’s excessive force, deliberate indifference to serious medical needs, and state law
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claims proceed in part. (ECF No. 7 at 9-10). Plaintiff had alleged excessive force against
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Defendants Correctional Officers Thompson, Lozano, and Carrillo at High Desert State Prison
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(“HDSP”) for shooting Plaintiff in the hand once he had been lying on the ground. (Id. at 3,
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6). The Court stayed the case for 90 days to give the parties an opportunity to settle their
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dispute. (Id. at 10). A mediation 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. (ECF No. 12 at 1). Plaintiff seeks a restraining
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order to prevent his transfer to Ely State Prison (“ESP”) where he will be beaten or killed in
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retaliation for filing this lawsuit. (Id.). The Court ordered Defendants to file a response
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because it found that Plaintiff had established a colorable likelihood of success on the merits
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for retaliation. (ECF No. 14 at 3-4).
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In the motion for TRO, Plaintiff alleged the following: Since coming to HDSP, Plaintiff

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has had two state-sponsored attempts on his life.

(ECF No. 12 at 2). The first attempt

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involved the shooting of his hand on February 18, 2014, and the second one involved prison

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officials placing him in a cell with a dangerous inmate after the shooting. (Id.; ECF No. 7 at

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3). There is a culture at HDSP to encourage the abuse and shooting of inmates. (ECF No.

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12 at 2). Prison officials have targeted Plaintiff to be murdered or crippled to a point where

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he can no longer proceed with this litigation. (Id.).

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In the motion, Plaintiff alleges the following facts: On April 11, 2015, Officer Romero

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

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

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

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

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Fennel heard the conversation and is willing to testify.1 (Id. at 3, 9). On April 13, 2015, Sgt.

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Bart went to Plaintiff’s door and said, “You really did it this time [Plaintiff], the warden is done

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with you and you will be on an emergency overnight to Ely State Prison if not this week, next

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week for sure.” (Id. at 3). Plaintiff responded that he “wasn’t trying to go for fear of what

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could happen” to him. (Id.). Bart told Plaintiff, “ah, [you’re] going whether you like it or not. It’ll

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be fun.” (Id.). This is the third attempt on Plaintiff’s life. (Id.). On April 8, 2015, correctional

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officers sat and watched Plaintiff fight for his life in his cell against another inmate. (Id.).

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Plaintiff had informed prison officials that he felt threatened by that inmate but they did nothing

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to prevent the attack against Plaintiff. (Id. at 7). The correctional officer who shot Plaintiff was

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promoted. (Id.). Plaintiff is in fear for his life and does not want to die. (Id. at 3). Plaintiff

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makes arguments for each factor. (Id. at 5-6).

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In response, Defendants address Plaintiff’s factual allegations.

(ECF No. 16 at 2).

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First, Defendants assert that the February 18, 2014 shooting was not a deliberate attempt on

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Plaintiff’s life but rather a reaction to a security situation created by Plaintiff when he refused

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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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to return to his cell and would not stop advancing toward the officers after Lozano repeatedly

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told Plaintiff, “stop or I’ll shoot.” (ECF No. 16 at 2-3). In support of their version of the facts,

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Defendants have attached Lozano’s report on the use of force from February 18, 2014, and

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correctional officer witness statements from that day. (ECF No. 16-1, 16-2).

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Second, Defendants assert that Plaintiff was not housed with a dangerous inmate after

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the shooting. (ECF No. 16 at 3). Because Plaintiff did not identify who the dangerous inmate

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was, Defendants searched through Plaintiff’s housing history to determine who Plaintiff might

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be referring to. (Id. at 3-4). Defendants housing history demonstrates that Plaintiff was

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housed in the infirmary, Unit 13, from February 18, 2014 to May 13, 2014, when he was

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transported to disciplinary segregation. (ECF No. 16-3). On May 13, 2014, Plaintiff was

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housed in a single cell unit in lock down. (ECF No. 16 at 4). On April 6, 2014, while at the

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infirmary, Plaintiff was temporarily housed with an inmate named Collier. (Id. at 4; ECF No.

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16-4 at 2). The prison case notes state that Plaintiff moved into Collier’s room for “bed space

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issues.” (ECF No. 16-4 at 2). However, Collier left the infirmary on April 17, 2014. (ECF No.

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16-5 at 2). Defendants do not consider Collier dangerous because he has one dismissed

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fighting charge on his disciplinary record. (ECF No. 16-6 at 2). Additionally, in July 2014,

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prison officials approved Collier for the Structured Senior Living Program at NNCC. (ECF No.

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16-8 at 2). According to Defendants, this means that Collier is a senior citizen in need of

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medical supervision. (ECF No. 16 at 4-5). During the time Plaintiff and Collier housed

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together, Plaintiff was 27 years old. (ECF No. 16-4).

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Third, Defendants assert that Plaintiff’s transfer to ESP was not to prevent Plaintiff from

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litigating his case but rather because of Plaintiff’s violent prison history. (ECF No. 16 at 5).

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Instead, Defendants assert that since Plaintiff’s incarceration on January 10, 2014, he has

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received seven notices of charges, four of which were for fighting. (ECF No. 16-7). On

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September 3, 2014, prison officials recommended that Plaintiff be transferred to ESP. (ECF

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No. 16-4 at 4). However, the transfer did not occur until Plaintiff’s most recent fight on April

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8, 2015. (Id. at 6-7).

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Fourth, Defendants provide a declaration from Romero denying Plaintiff’s version of the
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events and describing his own version of the events. (ECF No. 16-10).

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Fifth, Defendants assert that correctional officers did not sit around on April 8, 2015 and

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watch Plaintiff fight for his life. (ECF No. 16 at 7). Officer Binder filed a notice of charges

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against Plaintiff on that day for fighting. (ECF No. 16-9 at 2). According to the notice of

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charges, Binder was called to investigate a possible fight in Plaintiff’s cell. (Id.). Binder

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observed Plaintiff attempting to stab his cell mate with a weapon. (Id.). Binder gave verbal

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commands for the inmates to stop fighting but the inmates kept fighting. (Id.). Lt. Potter and

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Senior Officer Vogelsang came to the cell and also gave verbal commands to stop fighting,

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which the inmates ignored. (Id.). Potter pulled out a can of pepper spray, told the inmates

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to stop fighting, and then sprayed the can when the inmates did not comply. (Id.). Plaintiff

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had stabbed his cell mate twice in the back of the head. (Id.). Defendants argue that Plaintiff

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cannot establish a likelihood of success on the merits for retaliation and cannot establish the

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rest of the factors. (Id. at 10-13).

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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

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plaintiff seeking a preliminary injunction must establish 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 the

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

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Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting

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Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act (“PLRA”),

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preliminary injunctive relief must be “narrowly drawn,” must “extend no further than necessary

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to correct the harm,” and must be “the least intrusive means necessary to correct the harm.”

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18 U.S.C. § 3626(a)(2).

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

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

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

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remedy prison injustices. And because purely retaliatory actions taken against a prisoner for

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

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

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Id. at 567-68.

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In light of the evidence provided by Defendants, the Court finds that Plaintiff is unable

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to establish a likelihood of success on the merits for retaliation. Based on the evidence before

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the Court, it does not appear that Defendants have attempted to kill or cripple Plaintiff in

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retaliation for filing this lawsuit. First, the evidence demonstrates that the original shooting

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may have been caused by Plaintiff’s refusal to obey orders. Second, the evidence questions

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Plaintiff’s allegations that Collier was a dangerous inmate. Third, the evidence questions

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whether correctional officers truly sat around and watched Plaintiff fight for his life in a cell

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when it appears that Plaintiff may have been the attacker. Fourth, the evidence appears to

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demonstrate that prison officials transferred Plaintiff to ESP for institutional security needs

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because of Plaintiff’s violent prison history and not as a method to kill or cripple him. As such,

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the Court does not find that Plaintiff can establish a likelihood of success on the merits for

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retaliation. The Court denies the motion for temporary restraining order. (ECF No. 12). The

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90-day stay remains in effect. During this period, no other pleadings or papers shall be filed

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in this case, and the parties shall not engage in any discovery.

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II.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that motion for temporary restraining order

(ECF No. 12) is denied.
DATED this 14th day of May, 2015.

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

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