Mizzoni v. State of Nevada ex rel Nevada Department of Corrections et al

Filing 33

ORDER denying Plainitff's ECF No. 14 Motion for Preliminary Injunction; granting Defendants' ECF No. 24 Motion for Leave to File Confidential Documents Under Seal; granting Plaintiff's ECF No. 23 Motion to Respond to Defendants' Request for Instruction; directing Clerk to send a copy of ECF No. 3 Screening Order to Plaintiff (mailed 5/17/2016). Signed by Judge Miranda M. Du on 5/17/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSEPH MIZZONI,

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Plaintiff,
STATE OF NEVADA, et al.,
Defendants.

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ORDER

v.

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Case No. 3:15-cv-00313-MMD-VPC

I.

DISCUSSION

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On January 4, 2016, the Court entered an order referring the case to mediation

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and allowing Plaintiff to proceed on his retaliation and excessive force claims. (ECF No.

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6.) This matter is set for mediation on May 31, 2016. (ECF No. 31.) On March 7, 2016,

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Plaintiff filed the motion for injunctive relief that is the subject of this order. (ECF No.

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14.) On April 1, 2016, the Court entered an order directing Defendants to file a response

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to Plaintiff’s motion for injunctive relief re: neck injury. (ECF No. 22.)

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On April 8, 2016, Defendants filed their response along with several declarations

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and exhibits, including Plaintiff’s medical files/record, investigation detail reports,

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grievances, and grievance logs. (ECF Nos. 25-1, 25-2, 25-3, 25-4, 25-5, 25-6, 25-7, 25-

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8, 26.)

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In Plaintiff’s motion, he alleges that, due to the March 28, 2015, incident at

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Northern Nevada Correctional Center (“NNCC”) that is the subject of this case, he

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sustained severe neck injuries that have not been treated and that he fears becoming

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paralyzed. (ECF No. 14 at 3.)

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The Investigation Detail Report from the March 28, 2015, incident indicates

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Plaintiff was brought to medical for evaluation immediately following the incident and he

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was treated for a laceration above his left eye and abrasions to his knees. (ECF No. 25-

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1 at 3, 5.) The report does not indicate any complaints of neck injury by Plaintiff at that

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time.

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Plaintiff filed several grievances about the March 28, 2015, incident. The

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response to Plaintiff’s grievances indicate he was seen by medical on the day of the

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incident (March 28), and subsequently on March 31, April 9, April 17, May 20, and by an

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orthopedist on June 2, 2015. (ECF No. 25-7 at 30, 36.) Plaintiff was prescribed Tylenol

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and Baclofen for pain. (Id.) During that timeframe, many of his complaints centered

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around his hands and wrists, which were x-rayed on April 9, 2015. (Id. at 36, 37.) On

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July 22, 2015, Plaintiff had x-rays taken of his back, due to his complaints of back pain.

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(ECF No. 26-1 at 5.) The report noted “narrowing disc space at LS-S1" and “no acute

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fracture.” (Id.)

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Plaintiff was transferred to Ely State Prison in August 2015. On September 4,

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2015, he had an x-ray taken of his neck. (ECF No. 26-1 at 7.) The x-ray indicated “no

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fracture or subluxation is evident” and “moderate degenerative changes are evident at

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C5-C6.” (Id.)

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specialist for further treatment “to see if something can be done and/or surgery to

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correct this serious injury.” (ECF No. 25-7 at 42.)

Following his x-ray, Plaintiff filed numerous grievances requesting a

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Injunctive relief, whether temporary or permanent, is an “extraordinary remedy,

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never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 24

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(2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). Furthermore, under the Prison

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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

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

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The Court denies Plaintiff’s motion for emergency injunctive relief. (ECF No. 14.)

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After reviewing the response, declarations, and exhibits, the Court finds that Plaintiff is

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unlikely to suffer irreparable injury at this time in the absence of preliminary relief.

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Plaintiff has been seen by physicians multiple times for his back and neck pain and has

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had x-rays taken of both. These x-rays did not indicate that he should have surgery as

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Plaintiff appears to be seeking. While he may want different medical care than he has

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received, that is not the standard for issuing a preliminary injunction. Plaintiff was seen

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immediately after the incident at issue and multiple times thereafter. At that time, his

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complaints focused on other injuries, most specifically his hands and wrists. Plaintiff’s

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complaints of neck and back pain only came later and have been treated and evaluated.

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While Plaintiff has fears of paralysis, “[s]peculative injury does not constitute irreparable

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injury sufficient to warrant granting preliminary relief. A plaintiff must do more than

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merely allege imminent harm sufficient to establish standing; a plaintiff must

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demonstrate immediate threatened injury as a prerequisite to preliminary injunctive

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relief.” Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)

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(internal citations omitted) (emphasis in original). Plaintiff’s motion fails to meet the

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required standards for granting preliminary injunctive relief. See Am. Trucking Assn’s,

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559 F.3d at 1052.

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II.

For the foregoing reasons, it is ordered that Plaintiff’s motion for preliminary

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CONCLUSION

injunction (ECF No. 14) is denied.
It is further ordered that Defendants’ motion for leave to file confidential

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documents under seal (ECF No. 24) is granted.

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It is further ordered that Plaintiff’s motion to respond to Defendants’ request for

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instruction (ECF No. 23) is granted. The Clerk of the Court is directed to send a copy of

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the Screening Order (ECF No. 3) to Plaintiff.

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DATED THIS 17th day of May 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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