v. Poag et al

Filing 15

ORDER: Plaintiff's Motion for injunctive relief seeking treatment and enforcement of prohibitions against retaliation (Docket # 4 ) is DENIED without prejudice. Signed by Judge Larry R. Hicks on 6/30/2011. (Copies have been distributed pursuant to the NEF - AF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANK LLOYD NESCI,
#55250

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Plaintiff,
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vs.
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DON POAG, et al.,
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Defendants.

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3:10-cv-00712-LRH-VPC
ORDER

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This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. On February 4, 2011,

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the court issued a Screening Order directing that certain of plaintiff’s Eighth Amendment and retaliation

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claims as well as claims pursuant to the Americans with Disabilities Act would proceed (docket #7).

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Before the court is plaintiff’s motion for injunctive relief (docket #4).

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

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as of right.” Winter v. Natural Res. Defense Council, 129 S. Ct. 365, 376 (2008). “A plaintiff seeking

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

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and

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that an injunction is in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

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1046, 1052 (9th Cir. 2009) (quoting Winter, 129 S. Ct. at 374). The standard for a permanent injunction

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is essentially the same as for a preliminary injunction, with the exception that the plaintiff must show

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actual success, rather than a likelihood of success. See Amoco Prod. Co. v. Village of Gambell, 480 U.S.

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531, 546 n.12 (1987). However, the Ninth Circuit has recently revived the “serious questions” sliding

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scale test, and ruled that a preliminary injunction may be appropriate when a plaintiff demonstrates

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serious questions going to the merits and the balance of hardships tips sharply in plaintiff’s favor.

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Alliance for the Wild Rockies v. Cottrell, 613 F.3d 960 (9th Cir. 2010).

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In the instant case, plaintiff seeks an order directing LCC medical personnel to address his

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complaints that his current treatment for Parkinson’s disease is inadequate and to refrain from retaliating

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against plaintiff for filing this lawsuit. Although plaintiff has set forth allegations in his complaint that

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state cognizable claims, plaintiff has not established that he is likely to succeed on the merits of such

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claims. As such, at this time, plaintiff’s motion for a temporary restraining order and preliminary

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injunctive relief is denied without prejudice and with leave to renew, if necessary.

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IT IS THEREFORE ORDERED that plaintiff’s motion for injunctive relief seeking treatment
and enforcement of prohibitions against retaliation (docket #4) is DENIED without prejudice.

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DATED this 30th day of June, 2011.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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