Klein v. Neven et al
Filing
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ORDER. IT IS HEREBY ORDERED that 3 , 4 Plaintiff's Motions for Temporary Restraining Order and for Preliminary Injunction is DENIED without prejudice. Signed by Judge Kent J. Dawson on 9/28/2018. (Copies have been distributed pursuant to the NEF - MR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PAUL SCOTT KLEIN,
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Case No. 2:17-cv-02055-KJD-VCF
Plaintiff,
ORDER
v.
DWIGHT NEVEN, et al.,
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Defendants.
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Presently before the Court are Plaintiff’s Motions for Temporary Restraining Order and
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for Preliminary Injunction (#3/4). Defendants filed a response in opposition (#9/10) to which
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Plaintiff replied (#12).
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I. Analysis
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The essential remaining claims that are the subject of Plaintiff’s present motions are
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Eighth Amendment claims based on unsanitary prison conditions. The sum of Plaintiff’s
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complaint is that he does not have sufficient cleaning supplies and the lack of cleanliness leads to
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disease. The Court has already found that Plaintiff has stated an adequate claim on these issues.
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Temporary restraining orders and preliminary injunctions are governed by the same
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standard. See Dumas v. Gommerman, 865 F.2d 1093, 1095 (9th Cir. 1989). To qualify for
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injunctive relief, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a
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likelihood of irreparable harm; (3) the balance of hardships favors plaintiff; and (4) an injunction
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is in the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 120 (2008); eBay
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Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
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In response to Plaintiff’s motion, Defendants assert that they are providing adequate
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cleaning supplies in accordance with the Administrative Regulations. They also assert that they
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have moved Plaintiff to a different housing unit. They also assert that they have alleviated some
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problems by purchasing new shower curtains and have included the affidavits of prison staff
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averring to the cleanliness of Plaintiff’s unit. Plaintiff’s response included over one hundred
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pages of older (more than two years old) grievances. However, the response did contain several
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current affidavits from fellow inmates asserting that the current conditions in Unit 12 were not
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sanitary.
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However, none of the affidavits mention the pigeon problem that was a major part of
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Plaintiff’s complaint and motion. While the availability of adequate cleaning materials appears to
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by cyclical – more available on some days than others – it appears that the current conditions on a
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day-to-day basis do not rise to the level of a constitutional violation. That is not to say that Plaintiff
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will be unable to prove a constitutional violation after discovery, but the likelihood of success on
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the merits and balance of hardships does not tip in Plaintiff’s favor. “[C]onditions of confinement,
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even if not individually serious enough to work constitutional violations, may violate the
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Constitution in combination when they have a ‘mutually enforcing effect that produces the
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deprivation of a single, identifiable human need.’ ” Budd v. Motley, 711 F.3d 840, 842 (7th Cir.
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2013) (citing Wilson v. Seiter, 501 U.S. 294, 304 (1991); Gillis v. Litscher, 468 F.3d 488, 493 (7th
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Cir. 2006); Murphy v. Walker, 51 F.3d 714, 721 (7th Cir. 1995)).
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Accordingly, the Court denies Plaintiff’s motion for a temporary restraining order and
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preliminary injunction without prejudice. It is entirely likely that the parties are able to come to a
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mutually agreeable and enforceable solution to the sanitation problem in the housing units at the
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Inmate Early Mediation Conference on November 2, 2018. Failure to do so or failure to mediate
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in good faith by either party could result in the Court granting injunctive relief in the future based
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on the current conditions of Plaintiff’s confinement.
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II. Conclusion
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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motions for Temporary
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Restraining Order and for Preliminary Injunction (#3/4) is DENIED without prejudice.
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Dated this 28th day of September, 2018.
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___________________________
The Honorable Kent J. Dawson
United States District Judge
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