Wray v. Oregon Department of Corrections et al

Filing 37

ORDER: Plaintiff's Amended Motion for Temporary Restraining Order and Preliminary Injunction 10 is DENIED. In addition, plaintiff's Motion 17 asking the Court to rule on his motion for injunctive relief is DENIED as moot. IT IS SO ORDERED. Signed on 9/14/2012 by Judge Anna J. Brown. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ERIC EUGENE WRAY,
2: 12-cv-00980-PK
Plaintiff,
v.
OREGON DEPARTMENT OF
CORRECTIONS, et al.,

ORDER

Defendants.
BROWN, District Judge.
Plaintiff

has

filed

an

Amended

Motion

He alleges

Correctional

Institution

Preliminary Injunction

prison

Eastern

at

the

Temporary

[ 10] .

Restraining Order and
staff

for

Oregon

("E.O.C.I.")

altered and deleted vital medical and mental health

information

from

his

records

that

could

endanger

his

life.

Specifically, he alleges notations in his file documenting his bee
allergy

and

his

records.
1 - ORDER

housing

requirements,

were

deleted

from

his

In addition,

plaintiff alleges prison staff are failing to

protect him from harm by other inmates.

Specifically, he alleges

a

recently

fellow

E.O.C.I.

inmate,

Mario

Aguilar,

was

transferred

from Snake River Correctional Institution

to

("S.R.C.I.").

He contends Mario is a leader, a "shot caller", in a Mexican gang
and has ties to the gang member responsible for sexually assaulting
plaintiff when he was an inmate at S. R. C. I.
Mario

and

"John

Doe",

another

gang

leader

Plaintiff alleges
and

former

S. R. C. I

inmate, are harassing him and trying to get other gang members to
target him.
Plaintiff advises the Court that as of July 18, 2012, Mario
Aquilar,

SID# 13573056 resided in the B1 housing unit, bed 14A. 1

Plaintiff's Reply [24]

at 12.

He does not know John Doe's real

name and insists prison staff refuse to "sit down with
match faces with names."
the prison's

"refus [al]

[him]

to

Plaintiff contends that as a result of
to

do

anything

to protect

[him],"

his

mental health has deteriorated and he has lost 30 pounds in four
months because he has not been eating breakfast and only eating
lunch and dinner for 2-3 minutes in an effort to avoid Mario and
John Doe.

Amended Motion for TRO and Preliminary Injunction [10]

1

In their most recent declaration, defendants advise the
Court that their earlier representation that Officer Mitchell could
not find anyone fitting plaintiff's description of Mario was
incorrect and should not be relied on by the Court.
Declaration
[36] at 2.
2 - ORDER

at 3 & 6-7.

He also asserts that his health is at risk even from

a perceived threat of danger.

Plaintiff's Reply [24] at 12.

Plaintiff seeks an Order from the Court:

( 1)

directing the

Oregon Department of Corrections to transfer Mario and John Doe out
of E.O.C.I.;
"place

the

(2) directing the Oregon Department of Corrections to
information

health housing needs]
originally was
such";

( 3)

and

[related to

bee

allergy and mental

that was removed in exhibit 4 back as it

file

directing

his

proof with the

the

Oregon

Court

Department

and plaintiff as
of

Corrections

to

provide plaintiff with a special diet arranged by his prison doctor
and containing no red meat for six months; and (4)

granting such

other relief and damages as the Court feels justified.

Id. at 14.

According to plaintiff, segregating him or transferring him out of
E.O.C.I.

is

not

an

option

due

to

his

mental

health

issues.

Moreover, he insists needs a special diet because he does not eat
meat and the vegetarian option, while adequate to maintain weight,
will not allow him to regain the weight he lost.

Plaintiff's Reply

[24] at 17.

In

response,

defendants

maintain

that plaintiff's Health

Status Report and Health Services Face sheet indicate that he has
a

bee

allergy

and

special

housing

requirements.

In addition,

defendants argue even if these notations were not in plaintiff's
records,

he

cannot

"sufficiently

3 - ORDER

severe

show

their

deprivation"

absence
because:

would
(1)

result

in

in

event

the

a

plaintiff had a reaction to a bee sting, he would receive immediate
medical attention; and (2) "there is no indication defendants plan
to move him from his cell or transfer someone new into his cell, or
that doing so would result in harm."
4-5.

Finally,

defendants

assert

Defendants' Response [18] at
plaintiff

has

presented

no

evidence that any official purposefully, and with a culpable mind
set, removed information from his records.

Id. at 6.

With regard to plaintiff's failure to protect allegations,
defendants acknowledge that several months ago he notified Officer
Mitchell that he recognized an inmate named Mario from S.R.C.I.,
that Mario was an associate of the inmate who raped him, and that
he was worried about being recognized.

Declaration

[ 3 6]

at 2.

Defendants contend Officer Mitchell looked into the matter,

but

could not determine that a threat existed and took no action.

Id.

According to defendants,
[a]side from the complaint a number of months ago about
Inmate Aguilar, plaintiff has not presented concerns for
his safety to staff at EOCI. Should plaintiff raise such
concerns about Inmate Aguilar or any other inmate, staff
will look into those concerns and take appropriate
action.
In addition, staff at EOCI will continue to
monitor the situation and ensure plaintiff's safety to
the best of their ability.
Id.

Moreover,

defendants

state that plaintiff is under direct

supervision of staff at meals and at other authorized activities.
Finally,

in

addressing

plaintiff's

weight

loss

allegations,

defendants report that he weighed 159 pounds at intake on December
28,

1999,

that his own exhibit shows his weight is consistently

4 - ORDER

around 180 pounds, and that the most recent weight in his chart is
172 pounds taken on March 5, 2012. 2

According to defendants, even

at 162 pounds, plaintiff cannot demonstrate malnutrition or that he
is at "real and immediate" risk of harm.

Defendants' Response [18]

at 7-8.
To obtain preliminary injunctive relief in the Ninth Circuit,
a

party must

meet

one

of

two

alternative

tests. 3

Under

the

"traditional'' standard, preliminary relief may be granted if the
court finds:

(1) the moving party will suffer irreparable injury

if the preliminary relief is not granted;
a likelihood of success on the merits;

(2) the moving party has

(3) the balance of potential

harm favors the moving party; and 4) the advancement of the public
interest favors granting injunctive relief.
Department of Revenue,

934 F.2d 1064, 1084

Under the alternative test,

Burlington N.R.R. v.
(9th Cir. 1991).

the moving party may meet the

burden by showing either (1) probable success on the merits and the
possibility of irreparable injury,

or

(2)

that serious questions

are raised and the balance of hardships tips sharply in the moving
party's favor.

Id.; Associated Gen. Contractors of Cal., Inc. v.

2

Plaintiff contends his most recent weight of 162 pounds was
taken on April 24, 2012.
3

Notably,
the
standards
for
issuance
of
a
temporary
restraining order are at least as exacting as those for a
preliminary injunction.
Los Angeles Unified Sch. Dist. v. United
States Dist. Court for the Cent. Dist. of Cal., 650 F.2d 1004, 1008
(9th Cir. 1981).
5 - ORDER

-

-

--

--···-

----

Coalition for Economic Eguity, 950 F.2d 1401, 1410 (9th Cir. 1991),
cert.

denied,

503

U.S.

985

represent two points on a

"These

(1992).

sliding scale

two

formulations

in which the

required

degree of irreparable harm increases as the probability of success
decreases."

Prudential Real Estate Affiliates v. PPR Realty, Inc.,

204 F.3d 867, 874
The

Court

(9th Cir. 2000).
takes

its

Nevertheless,

review

seriously
of

the

allegations.

plaintiff's
record

reveals

plaintiff's

institution records currently include notations documenting both
his bee allergy and his special housing requirements due to mental
health issues.
include

Moreover,

allegations

as defendants note,

related

to

the

removal

notations from his records in his Complaint.
demonstrate a

likelihood of success

plaintiff did not
of

these

critical

Therefore, he cannot

on the merits.

Winter v.

Natural Res. De f. Council, Inc, 12 9 S. Ct. 3 65, 37 4 ( 2 00 8) (plaintiff
seeking preliminary injunction must demonstrate that he is likely
to succeed on the merits).
Similarly,
plaintiff's
assertions:

in light of defendants representations regarding

failure

to

protect

allegations,

namely

their

(1) that they looked into plaintiff's claims regarding

Mario and could not

determine that

a

threat

existed;

( 2)

that

plaintiff has not presented any recent concerns related to his
safety;

(3) that "[e]ach time plaintiff leaves the unit for meals,

program assignments, recreation, or other authorized activities, he

6 - ORDER

is under the direct supervision of staff"; and (4) that "staff at
EOCI will continue to monitor the situation and ensure plaintiff's
safety to the best of their ability," the Court finds plaintiff has
failed to demonstrate a likelihood of success on the merits on his
failure to protect claims such that injunctive relief is warranted
at this time.
Plaintiff

Id.
is

also

advised

that

ordinarily

a

preliminary

injunction maintains the status quo pending a final decision on the
merits.
( 1981) .

University

of

Texas

v.

Camenisch,

451

U.S.

390,

395

Here, plaintiff is asking the Court to alter the status

quo by, among other things, issuing an Order directing the Oregon
Department of Corrections to transfer Mario and John Doe out of
E.O.C.I.

and to provide plaintiff with a special diet.

"mandatory

injunction,"

as

extraordinary circumstances.
Homes

of

Nevada,

434

F.3d

it

is

known,

is

granted

Such a
only

in

See LGS Architects, Inc. V. Concordia
1150,

1158

(9th

Cir.

2006);

Marlyn

Nutraceuticals, Inc. v. Mucas Pharma GmbH & Co., 571 F.3d 873, 879
(9th Cir. 200 9) (mandatory injunction, which goes beyond maintaining
the status quo, is particularly disfavored) .

Ill
Ill
Ill
Ill

7 - ORDER

CONCLUSION
Based

on

the

foregoing,

plaintiff's

Amended

Motion

Temporary Restraining Order and Preliminary Injunction
DENIED.

[ 10]

for
is

In addition, plaintiff's Motion [17 ] asking the Court to

rule on his motion for injunctive relief is DENIED as moot.
IT IS SO ORDERED.
DATED this

~~day

of September, 2012.

Anna J. Brown
United States District Judge

8 - ORDER