Crittendon v. Lombardo et al, No. 2:2017cv01700 - Document 55 (D. Nev. 2018)
Court Description: ORDER denying without prejudice Motion for Temporary Restraining Order (ECF No. 3). FURTHER ORDERED that the Motion for Preliminary Injunction (ECF No. 4) is DENIED without prejudice. FURTHER ORDERED that the Motion for Copies of Written Transaction (ECF No. 16) is GRANTED. The Clerk shall send to Plaintiff a copy of the August 11, 2017 hearing transcript, as well as a copy of the January 11, 2018 hearing transcript. FURTHER ORDERED that the Motion for Leave and/or Stay (ECF No. 39) is GRANTED in part and DENIED in part. The Court will provide Plaintiff with additional time to file his Amended Complaint. If Plaintiff chooses to file an Amended Complaint, he must do so within sixty days. IT IS FURTHER ORDERED that Defendant Williamso n SHALL provide the Plaintiff regular (weekly for at least one to two hours) access to his ENTIRE medical file throughout the pendency of this litigation, beginning with the date of this Order. As previously ordered, failure to provide such access ma y lead to sanctions, including monetary sanctions and up to case-dispositive sanctions.IT IS FURTHER ORDERED that Plaintiff shall NOT file any further motions without leave of the Court except for motions involving direct threats to his safety or a serious and potentially life-threatening medical condition Signed by Judge Richard F. Boulware, II on 3/30/2018. (no image attached) (Copies have been distributed pursuant to the NEF - BEL)
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Crittendon v. Lombardo et al Doc. 55 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 JOSHUA H. CRITTENDON, 5 Plaintiff, 6 7 Case No. 2:17-cv-01700-RFB-PAL ORDER v. JOE LOMBARDO, et al., 8 Defendants. 9 10 I. INTRODUCTION 11 Before the Court is Plaintiff Joshua H. Crittendon (“Plaintiff”)’s Motion for Temporary 12 Restraining Order (TRO), (ECF No. 3) and Motion for Preliminary Injunction (ECF No. 4). For 13 the reasons stated below, the Court DENIES Plaintiff’s motions without prejudice. The Court also 14 addresses several other motions filed by Plaintiff: a Motion for Copies of Written Transaction 15 (ECF No. 16), and a Motion for Leave and/or Stay of Time (ECF No. 39). 16 17 II. BACKGROUND 18 Plaintiff filed his original Complaint and Motion to Leave to Proceed in forma pauperis on 19 June 16, 2017. (ECF No. 1). 1 Plaintiff, a pretrial detainee, asserts unnecessary and excessive use 20 of force claims, as well as a claim for deliberate indifference in the denial of medical treatment, 21 alleging that Defendants assaulted him and caused him irreparable harm. Plaintiff also filed the 22 instant Motion for TRO and Motion for Preliminary Injunction on August 1, 2017, whereby he 23 asks this Court order that he be moved to another facility to get medical care. (ECF No. 3, 4). On 24 August 10, 2017, the Court held a hearing on the motions and heard representation from Plaintiff. 25 The hearing was continued to the following day; although counsel for Defendants had not yet been 26 27 1 28 On December 28, 2017, the Court entered an Order granting leave to proceed in forma pauperis and screening the Complaint. (ECF No. 30). The Complaint was filed on December 29, 2017. (ECF No. 31). Dockets.Justia.com 1 served, they appeared at August 11th hearing. During the August 11th hearing, the Court ordered 2 Defendant Naphcare to provide Plaintiff with access to his medical records and Defendants Joe 3 Lombardo (“Lombardo”) and the Las Vegas Metropolitan Police Department (“LVMPD”) to 4 provide Plaintiff access to certain videotape footage. (ECF No. 14). The Court scheduled a future 5 hearing on the matter, which was held on January 11, 2018. (ECF No. 35). 6 On January 31, 2018, Plaintiff filed a Motion for Leave and/or Stay of Time to Pursue 7 Counsel. (ECF No. 39). Defendants Lombardo and LVMPD filed a Response on February 14, 8 2018. (ECF No. 43). 9 10 III. FACTUAL ALLEGATIONS 11 The Court summarizes the allegations from the Complaint as follows. Plaintiff’s claims 12 stem from two events in which he alleges that he was assaulted by Clark County Department of 13 Corrections (“CCDC”) corrections officers. On November 15, 2016, Corrections Officer Sanchez 14 “cuffed-up” Plaintiff and grabbed him by the shirt, directing him out of his cell for a visit with his 15 attorney. As they approached the stairs, Plaintiff stopped to avoid being pushed onto the stairs. 16 Sanchez “took this as resistance,” then tripped and slammed Plaintiff to the ground. The next day, 17 Corrections Officer Brown woke Plaintiff for his medication. Plaintiff took the medication and 18 Brown told him to open his mouth. He asked Brown not to “start with him today,” implying that 19 he was uncomfortable with the request because Brown had sexual allegations against him about 20 which Plaintiff had repeatedly confronted him. Plaintiff told him “once is enough.” Brown got 21 mad and told Plaintiff, “I’ll be back.” Plaintiff claims Brown retaliated against him, returning ten 22 minutes later to move Plaintiff to a corner cell where Plaintiff could not see the television. Plaintiff 23 refused to leave. Brown called for back-up. Other corrections officers came to Plaintiff’s cell and 24 threatened him with deadly force if he did not “cuff-up.” After Plaintiff did not comply, the 25 corrections officers sprayed chemicals into his cell, causing Plaintiff to cough and choke, and stuck 26 a shotgun in the cell. As Plaintiff was holding on to his mattress, an officer fired the shotgun. The 27 shotgun malfunctioned and a rubber ball that was accidentally ejected hit Plaintiff’s finger, causing 28 it to break. The corrections officers then extracted Plaintiff from the cell and took him to the mental -2- 1 health unit. Plaintiff was placed into a feces-smeared room, stripped naked, and left on the floor 2 with no mattress. He requested to be rinsed-off because the chemicals were burning his eyes and 3 skin, and he was bleeding from his exposed finger. CCDC denied his request for at least four days. 4 Hours after the extraction, Plaintiff had an x-ray taken of his finger but did not see a doctor for two 5 months. CCDC denied him pain medication that he was prescribed. Plaintiff’s alleges that his 6 finger is permanently disfigured as a result of these events. He also alleges that he suffers from an 7 underlying mental disorder, spine injury, and emotional trauma. 8 9 10 IV. LEGAL STANDARD a. Motion for Temporary Restraining Order or Injunctive Relief 11 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 12 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 13 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: 14 “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm 15 in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the 16 public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 17 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter, 555 U.S. 7, 20 (2008)). A 18 preliminary injunction may issue under the “serious questions” test. Alliance for the Wild Rockies 19 v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the continued viability of this doctrine 20 post-Winter). According to this test, a plaintiff can obtain a preliminary injunction by 21 demonstrating “that serious questions going to the merits were raised and the balance of hardships 22 tips sharply in the plaintiff’s favor,” in addition to the other Winter elements. Id. at 1134-35 23 (citation omitted). 24 A temporary restraining order (“TRO”) may be issued without notice to the adverse party 25 only if the moving party: (1) provides a sworn statement clearly demonstrating “that immediate 26 and irreparable injury, loss, or damage will result to the movant before the adverse party can be 27 heard in opposition,” and (2) sets forth the efforts made to notify the opposing party and why 28 notice should not be required. Fed. R. Civ. P. 65(b) (1). TROs issued without notice “are no doubt -3- 1 necessary in certain circumstances, but under federal law they should be restricted to serving their 2 underlying purpose of preserving the status quo and preventing irreparable harm just so long as is 3 necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 4 U.S. 423, 439 (1974) (citation omitted). 5 Injunctions affecting prison conditions “must be narrowly drawn, extend no further than 6 necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive 7 means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 8 b. Due Process Challenge to Excessive Force in Pretrial Detention 9 A pretrial detainee alleging excessive force must show that the defendant acted with a 10 greater degree of culpability than negligence. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 11 (2015). (“[W]e have stated, ‘liability for negligently inflicted harm is categorically beneath the 12 threshold of constitutional due process.’”) (citation omitted). However, as to the state of mind 13 regarding the nature of the force, “a pretrial detainee must show only that the force purposely or 14 knowingly used against him was objectively unreasonable.” Id. “A court (judge or jury) cannot 15 apply this standard mechanically. Rather, objective reasonableness turns on the facts and 16 circumstances of each particular case. . . . A court must also account for the legitimate interests 17 that stem from the government’s need to manage the facility in which the individual is detained, 18 appropriately deferring to “policies and practices that in the judgment” of jail officials “are needed 19 to preserve internal order and discipline and to maintain institutional security.” Id. at 2473 (internal 20 citations and quotation marks omitted). 21 In evaluating the reasonableness of force used, the Court may consider the following 22 factors: “the relationship between the need for the use of force and the amount of force used; the 23 extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of 24 force; the severity of the security problem at issue; the threat reasonably perceived by the officer; 25 and whether the plaintiff was actively resisting.” Id. (citations and quotation marks omitted). This 26 list, however, is not exhaustive. Id. 27 c. Due Process Challenge to Deliberate Indifference to Serious Medical Needs 28 -4- 1 A pretrial detainee’s right to be free from punishment is grounded in the Due Process 2 Clause, but courts borrow from Eighth Amendment jurisprudence when analyzing the rights of 3 pretrial detainees. See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008). Although 4 the U.S. Supreme Court and the Ninth Circuit have started to apply an objectively reasonable 5 standard to determine whether a pretrial detainee’s rights have been violated, those courts have 6 not fully addressed the new standard for medical claims and pretrial detainees. See generally 7 Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015) (holding that an objectively reasonable standard 8 applies to a pretrial detainee’s excessive force claims); Castro v. Cty. of Los Angeles, 833 F.3d 9 1060, 1071 (9th Cir. 2016) (holding that an objectively reasonable standard applies to a pretrial 10 detainee’s failure to protect claims). 11 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and 12 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’” 13 Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when 14 he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. 15 Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must 16 satisfy both an objective standard—that the deprivation was serious enough to constitute cruel and 17 unusual punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 18 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 19 (9th Cir. 2014). To establish the first prong, “the plaintiff must show a serious medical need by 20 demonstrating that failure to treat a prisoner’s condition could result in further significant injury 21 or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 22 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must 23 show “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and 24 (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, 25 delay or intentionally interfere with medical treatment, or it may be shown by the way in which 26 prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges 27 that delay of medical treatment evinces deliberate indifference, the prisoner must show that the 28 delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, -5- 1 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a 2 claim of deliberate medical indifference”). 3 4 V. DISCUSSION 5 The Court finds that, as a threshold matter, Plaintiff has not articulated, or otherwise 6 provided, facts to support that “immediate and irreparable injury, loss, or damage will result”. Fed. 7 R. Civ. P. 65(b)(1). The Court notes that it has recently addressed this issue in a hearing on January 8 11, 2018. The Court denied the more recent preliminary injunction motion at the hearing. The 9 reasoning for that denial is certainly applicable to earlier motions in this case as the Defendants 10 have taken action subsequent to the instant motions on the issues raised. The Court thus finds that 11 at this point in time, Plaintiff is not entitled to injunctive relief. 12 Additionally, Plaintiff seeks to be moved to another jurisdiction or facility because he fears 13 for his life and has not received necessary medical care. Plaintiff claims that his injuries after the 14 alleged assaults on November 15 and 16, 2016 were a broken finger, abrasions, and bruising on 15 the wrists. However, Plaintiff concedes that he did receive medical treatment, albeit not 16 immediately. He admits that he received x-rays of his finger after the assault and saw a hand 17 specialist on two occasions. Plaintiff’s dissatisfaction with the treatment he received, without 18 more, does not give rise to a constitutional violation meriting injunctive relief. Plaintiff has not 19 articulated that he has an ongoing medical or mental health condition requiring a specific treatment 20 or one that would entitle him to receive a particular medication other than what has already been 21 prescribed. 22 Given the Court’s findings, the remaining factors for consideration as to imposition of a 23 TRO or injunction need not be addressed at this time. Therefore, the Court denies the earlier 24 Motion for TRO and Motion for Preliminary Injunction without prejudice. With respect to 25 Plaintiff’s more recent filing, the Court denies in part the request for leave or stay, as there has not 26 previously been a deadline set for Plaintiff to file an amended Complaint. However, the Court now 27 orders that Plaintiff is given leave to file an amended Complaint within sixty days. Plaintiff is 28 instructed that if he chooses not to file an amended Complaint, the case will proceed with the -6- 1 current Complaint. If Plaintiff chooses to file an amended Complaint, he is instructed to set forth 2 factual allegations regarding his constitutional challenges, against each particular Defendant. 3 Plaintiff also alleges that Defendant Williamson has not followed the Court’s prior order allowing 4 Plaintiff access to his medical files for one to two hours each week. Now that Defendant 5 Williamson has been served, the Court reasserts its prior order that Plaintiff shall have access to 6 his medical file on a weekly basis. At this time, the Court denies Plaintiff’s request to compel 7 Defendant LVMPD to provide him access to certain video footage. 8 VI. 9 IT IS THEREFORE ORDERED that the Motion for Temporary Restraining Order (ECF 10 11 No. 3) is DENIED without prejudice. IT IS FURTHER ORDERED that the Motion for Preliminary Injunction (ECF No. 4) is 12 13 CONCLUSION DENIED without prejudice. 14 IT IS FURTHER ORDERED that the Motion for Copies of Written Transaction (ECF 15 No. 16) is GRANTED. The Clerk shall send to Plaintiff a copy of the August 11, 2017 hearing 16 transcript, as well as a copy of the January 11, 2018 hearing transcript. 17 IT IS FURTHER ORDERED that the Motion for Leave and/or Stay (ECF No. 39) is 18 GRANTED in part and DENIED in part. The Court will provide Plaintiff with additional time to 19 file his Amended Complaint. If Plaintiff chooses to file an Amended Complaint, he must do so 20 within sixty days. 21 IT IS FURTHER ORDERED that Defendant Williamson SHALL provide the Plaintiff 22 regular (weekly for at least one to two hours) access to his ENTIRE medical file throughout the 23 pendency of this litigation, beginning with the date of this Order. As previously ordered, failure to 24 provide such access may lead to sanctions, including monetary sanctions and up to case-dispositive 25 sanctions. 26 /// 27 /// 28 /// -7- 1 IT IS FURTHER ORDERED that Plaintiff shall NOT file any further motions without 2 leave of the Court except for motions involving direct threats to his safety or a serious and 3 potentially life-threatening medical condition. 4 5 DATED this 30th day of March, 2018. 6 __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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