DuShane v. Northern Nevada Correctional Center et al

Filing 22

ORDER denying 8 Motion for Preliminary Injunction and denying 21 Motion for District Judge to Reconsider Order. Order 19 remains in effect. Signed by Judge Robert C. Jones on 2/12/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JASEN LYNN DUSHANE,
Plaintiff,

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v.

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NORTHERN NEVADA CORRECTIONAL
CENTER, et al.,

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Defendants.
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3:14-cv-00586-RCJ-VPC
ORDER

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Plaintiff has submitted a motion for preliminary injunction and a motion for
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reconsideration. (ECF No. 8, 21). The Court will address each motion in turn.
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I.

MOTION FOR PRELIMINARY INJUNCTION

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Plaintiff filed a motion for a preliminary injunction. (ECF No. 8). The traditional
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equitable criteria for granting preliminary injunctive relief are: (1) a strong likelihood of success
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on the merits; (2) the possibility of irreparable injury to the plaintiff if injunctive relief is not
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granted; (3) a balance of hardships favoring the plaintiffs; and (4) advancement of the public
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interest. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d
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1197, 1200-01 (9th Cir. 1980). The moving party may meet its burden by demonstrating either
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(1) a combination of probable success on the merits and the possibility of irreparable injury
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or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.
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Id. Furthermore, under the Prison Litigation Reform Act (“PLRA”), preliminary injunctive relief
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must be “narrowly drawn,” must “extend no further than necessary to correct the harm,” and
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must be “the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).
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Plaintiff has not demonstrated probable success on the merits at this time. Plaintiff has
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alleged that a policy at NNCC has prejudiced him in his ability to access the courts. This

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allegation is sufficient to state a claim at this stage, but does not demonstrate probable

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success on the merits. Moreover, Plaintiff has not demonstrated that the balance of hardships

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tips sharply in his favor. Accordingly, Plaintiff’s motion for a preliminary injunction is denied.

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II.

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MOTION FOR RECONSIDERATION
Plaintiff filed a motion for reconsideration (ECF No. 21) and asserts the Court should

reconsider its dismissal of his Fourth and Fourteenth Amendment claims.

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Plaintiff alleges he has no choice but to give his legal papers to inmate law clerks in

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order to get copies. (ECF No. 21 at 1-2). Plaintiff contends this involuntary action forms the

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basis of a Fourth Amendment deprivation. “Simply because prison inmates retain certain

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constitutional rights does not mean that these rights are not subject to restrictions and

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limitations.

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objectives and the provisions of the Constitution that are of general application.” Bell v.

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Wolfish, 441 U.S. 520, 521 (1979) (citation omitted). Plaintiff’s Fourth Amendment claim fails

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because the “search” Plaintiff alleges is unconstitutional is the exact sort of mutual

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accommodation anticipated by Bell.

There must be a mutual accommodation between institutional needs and

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Plaintiff’s Fourteenth Amendment Equal Protection Claim does not state a viable cause

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of action. Plaintiff claims the government is required “to follow the very laws they themselves

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force upon citizens of the United States that affect life and liberty.” (ECF No. 21 at 2). This

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pronouncement is insufficient to state a colorable Equal Protection Claim violation. In order

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to state an equal protection claim, a plaintiff must allege facts demonstrating that defendants

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acted with the intent and purpose to discriminate against him based upon membership in a

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protected class, or that defendants purposefully treated him differently than similarly situated

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individuals without any rational basis for the disparate treatment. Lee v. City of Los Angeles,

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250 F.3d 668, 686 (9th Cir. 2001); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

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(2000).

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Plaintiff has not alleged he has been treated differently than other similarly situated

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individuals. Plaintiff has filed two amended complaints in addition to his initial complaint and

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yet has not shown he is able to correct the deficiency in his Fourteenth Amendment Equal
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Protection Clause claim. Accordingly, Plaintiff’s motion for reconsideration (ECF No. 21) is

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denied.

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III.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion for a Preliminary

Injunction (ECF No. 8) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for reconsideration (ECF No. 21) is
DENIED.

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IT IS FURTHER ORDERED that the stay issued in the Court’s previous order (ECF No.

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19) remains in effect. The parties are directed to refer to that order for all deadlines and

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pertinent information concerning the further progression of this case.

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DATED: This 12th day of day of February, 2016.
DATED: This _____ February, 2016.

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_________________________________

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United States District Judge

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