3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 BRETT BARNES, Case No. 3:25-cv-00219-ART-CSD
6 Plaintiff, ORDER DENYING MOTION v. 7 NORTHERN NEVADA (ECF No. 1-1) 8 CORRECTIONAL CENTER, et al.,
9 Defendants.
10 11 State prisoner Brett Barnes moves for a temporary restraining order or a 12 preliminary injunction requiring prison officials to immediately send him to an 13 ophthalmologist to treat right-eye vision loss that he purportedly suffered when 14 he had a stroke and atrial fibrillation on March 18, 2025, while housed in the 15 “hole” at Northern Nevada Correctional Center (“NNCC”). (ECF No. 1-1). Barnes’s 16 motion is concerning, but because he has not filed a complaint,1 this Court lacks 17 authority to grant him pretrial equitable relief. See Pac. Radiation Oncology, LLC 18 v. Queen’s Medical Ctr., 810 F.3d 631, 636–37 (9th Cir. 2015) (explaining “there 19 must be a relationship between the injury claimed in the motion for injunctive 20 relief and the conduct asserted in the underlying complaint” and “[a]bsent that 21 relationship or nexus, the district court lacks authority to grant the relief 22 requested”). And the motion is deficient because it is silent about how prison staff 23 knew and responded to the ophthalmologist’s treatment plan. 24 The motion is denied without prejudice to Barnes’s ability to file a new, 25 properly supported motion once he files a complaint. And because Barnes argues 26
27 1 Barnes also failed to pay the full $405 filing fee or file an application to proceed 28 in forma pauperis for inmates housed at NNCC, one of which is necessary for this action to proceed. But that matter will be addressed in a separate order. 2 cannot wait out the grievance process to avoid further injury[,]” (ECF No. 1-1 at 3 2), the Court provides the following guidance to facilitate the filing of a properly 4 formatted complaint and a renewed motion, if necessary. 5 I. DISCUSSION 6 A. Barnes must file a complaint to proceed with this lawsuit. 7 “A civil action is commenced by filing a complaint with the court.” Fed. R. 8 Civ. P. 3. “A civil-rights complaint filed by a person who is not represented by an 9 attorney must be submitted on the form provided by this Court or must be legible 10 and contain substantially all the information called for by the Court’s form.” Nev. 11 LSR 2-1. And the complaint must be signed personally by the unrepresented 12 party. Fed. R. Civ. P. 11(a). 13 Barnes is advised that his complaint must contain all claims, defendants, 14 and factual allegations that he wishes to pursue in this lawsuit. Barnes should 15 file the complaint on this Court’s approved prisoner civil-rights form. Barnes 16 must follow the instructions on the form. He need not and should not allege very 17 many facts in the “nature of the case” section of the form. 18 Rather, in each claim, he should allege facts sufficient to show what each 19 defendant did to violate his civil rights. For instance, Barnes might be trying to 20 state an Eighth Amendment claim about indifference to his eye condition. Thus, 21 Barnes may allege facts identifying prison staff and officials who knew about the 22 ophthalmologist’s treatment plan, when they knew that information, how they 23 knew that information, and their responses, if any. And if Barnes does not know 24 the true name of any defendant, then he must plead facts to show that 25 information could be obtained with discovery, e.g., their rank, job title, age, 26 gender, physical description; identify any acts or omissions of indifference; and 27 state when each indifferent act or omission happened. Gillespie v. Civiletti, 629 28 F.2d 637, 642 (9th Cir. 1980) (explaining that although the use of “Doe” to identify 2 of a party is not known before filing a complaint but can subsequently be 3 determined through discovery). 4 B. Barnes is not required to plead that he exhausted available 5 administrative remedies in his complaint.
6 The Prison Litigation Reform Act (“PLRA”) requires inmates to exhaust their 7 available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). 8 “Exhaustion requires complying with a prison’s critical procedural rules and is 9 justified by the need to impose some orderly structure on the course of its 10 proceedings.” Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) (cleaned up) 11 (quoting Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)). “Requiring exhaustion 12 serves other important objectives, including alerting prison officials to the nature 13 of the wrong for which redress is sought, and allowing prisons to take corrective 14 action where appropriate.” Id. (cleaned up) (collecting cases). “Exhaustion also 15 allows a prison’s administration to address complaints about the program it 16 administers before being subjected to suit, reducing litigation to the extent 17 complaints are satisfactorily resolved, and improving litigation that does not 18 occur by leading to the preparation of a useful record.” Id. (cleaned up) (collecting 19 cases). 20 Importantly, it has long been the rule that “failure to exhaust is an 21 affirmative defense under the PLRA, and that inmates are not required to 22 specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 23 549 U.S. 199, 216 (2007) (emphasis added). Additionally, if the prison has 24 regulations that call for expedited review of emergency grievances,2 and the 25
26 2 NDOC Administrative Regulation 740.07, effective April 28, 2022, establishes the “Emergency Grievance Procedure” for Nevada prisons and provides that such 27 grievances must be “immediately delivered to the nearest supervisor” and 28 “reviewed within 24-hours of receipt” and “[t]he department official receiving the 2 consider that procedure if the defendants raise failure-to-exhaust as an 3 affirmative defense to a prisoner’s civil-rights claims. See Fordley, 18 F.4th at 4 353–58 (analyzing exhaustion of an emergency grievance about physical and 5 sexual assault). 6 C. But pretrial equitable relief requires showing that prison staff or 7 officials are knowingly disregarding a risk to Barnes’s health.
8 Barnes is advised that restraining orders and preliminary injunctions are 9 “extraordinary remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. 10 Council, Inc., 555 U.S. 7, 24 (2008). The legal standard for obtaining a temporary 11 restraining order and the legal standard for obtaining a preliminary injunction 12 are “substantially identical.” See Stuhlbarg Intern. Sales Co. v. John D. Bush and 13 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001), overruled on other grounds by Winter, 14 555 U.S. at 20. The Supreme Court clarified the standard for these forms of 15 equitable relief in Winter v.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 BRETT BARNES, Case No. 3:25-cv-00219-ART-CSD
6 Plaintiff, ORDER DENYING MOTION v. 7 NORTHERN NEVADA (ECF No. 1-1) 8 CORRECTIONAL CENTER, et al.,
9 Defendants.
10 11 State prisoner Brett Barnes moves for a temporary restraining order or a 12 preliminary injunction requiring prison officials to immediately send him to an 13 ophthalmologist to treat right-eye vision loss that he purportedly suffered when 14 he had a stroke and atrial fibrillation on March 18, 2025, while housed in the 15 “hole” at Northern Nevada Correctional Center (“NNCC”). (ECF No. 1-1). Barnes’s 16 motion is concerning, but because he has not filed a complaint,1 this Court lacks 17 authority to grant him pretrial equitable relief. See Pac. Radiation Oncology, LLC 18 v. Queen’s Medical Ctr., 810 F.3d 631, 636–37 (9th Cir. 2015) (explaining “there 19 must be a relationship between the injury claimed in the motion for injunctive 20 relief and the conduct asserted in the underlying complaint” and “[a]bsent that 21 relationship or nexus, the district court lacks authority to grant the relief 22 requested”). And the motion is deficient because it is silent about how prison staff 23 knew and responded to the ophthalmologist’s treatment plan. 24 The motion is denied without prejudice to Barnes’s ability to file a new, 25 properly supported motion once he files a complaint. And because Barnes argues 26
27 1 Barnes also failed to pay the full $405 filing fee or file an application to proceed 28 in forma pauperis for inmates housed at NNCC, one of which is necessary for this action to proceed. But that matter will be addressed in a separate order. 2 cannot wait out the grievance process to avoid further injury[,]” (ECF No. 1-1 at 3 2), the Court provides the following guidance to facilitate the filing of a properly 4 formatted complaint and a renewed motion, if necessary. 5 I. DISCUSSION 6 A. Barnes must file a complaint to proceed with this lawsuit. 7 “A civil action is commenced by filing a complaint with the court.” Fed. R. 8 Civ. P. 3. “A civil-rights complaint filed by a person who is not represented by an 9 attorney must be submitted on the form provided by this Court or must be legible 10 and contain substantially all the information called for by the Court’s form.” Nev. 11 LSR 2-1. And the complaint must be signed personally by the unrepresented 12 party. Fed. R. Civ. P. 11(a). 13 Barnes is advised that his complaint must contain all claims, defendants, 14 and factual allegations that he wishes to pursue in this lawsuit. Barnes should 15 file the complaint on this Court’s approved prisoner civil-rights form. Barnes 16 must follow the instructions on the form. He need not and should not allege very 17 many facts in the “nature of the case” section of the form. 18 Rather, in each claim, he should allege facts sufficient to show what each 19 defendant did to violate his civil rights. For instance, Barnes might be trying to 20 state an Eighth Amendment claim about indifference to his eye condition. Thus, 21 Barnes may allege facts identifying prison staff and officials who knew about the 22 ophthalmologist’s treatment plan, when they knew that information, how they 23 knew that information, and their responses, if any. And if Barnes does not know 24 the true name of any defendant, then he must plead facts to show that 25 information could be obtained with discovery, e.g., their rank, job title, age, 26 gender, physical description; identify any acts or omissions of indifference; and 27 state when each indifferent act or omission happened. Gillespie v. Civiletti, 629 28 F.2d 637, 642 (9th Cir. 1980) (explaining that although the use of “Doe” to identify 2 of a party is not known before filing a complaint but can subsequently be 3 determined through discovery). 4 B. Barnes is not required to plead that he exhausted available 5 administrative remedies in his complaint.
6 The Prison Litigation Reform Act (“PLRA”) requires inmates to exhaust their 7 available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). 8 “Exhaustion requires complying with a prison’s critical procedural rules and is 9 justified by the need to impose some orderly structure on the course of its 10 proceedings.” Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) (cleaned up) 11 (quoting Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)). “Requiring exhaustion 12 serves other important objectives, including alerting prison officials to the nature 13 of the wrong for which redress is sought, and allowing prisons to take corrective 14 action where appropriate.” Id. (cleaned up) (collecting cases). “Exhaustion also 15 allows a prison’s administration to address complaints about the program it 16 administers before being subjected to suit, reducing litigation to the extent 17 complaints are satisfactorily resolved, and improving litigation that does not 18 occur by leading to the preparation of a useful record.” Id. (cleaned up) (collecting 19 cases). 20 Importantly, it has long been the rule that “failure to exhaust is an 21 affirmative defense under the PLRA, and that inmates are not required to 22 specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 23 549 U.S. 199, 216 (2007) (emphasis added). Additionally, if the prison has 24 regulations that call for expedited review of emergency grievances,2 and the 25
26 2 NDOC Administrative Regulation 740.07, effective April 28, 2022, establishes the “Emergency Grievance Procedure” for Nevada prisons and provides that such 27 grievances must be “immediately delivered to the nearest supervisor” and 28 “reviewed within 24-hours of receipt” and “[t]he department official receiving the 2 consider that procedure if the defendants raise failure-to-exhaust as an 3 affirmative defense to a prisoner’s civil-rights claims. See Fordley, 18 F.4th at 4 353–58 (analyzing exhaustion of an emergency grievance about physical and 5 sexual assault). 6 C. But pretrial equitable relief requires showing that prison staff or 7 officials are knowingly disregarding a risk to Barnes’s health.
8 Barnes is advised that restraining orders and preliminary injunctions are 9 “extraordinary remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. 10 Council, Inc., 555 U.S. 7, 24 (2008). The legal standard for obtaining a temporary 11 restraining order and the legal standard for obtaining a preliminary injunction 12 are “substantially identical.” See Stuhlbarg Intern. Sales Co. v. John D. Bush and 13 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001), overruled on other grounds by Winter, 14 555 U.S. at 20. The Supreme Court clarified the standard for these forms of 15 equitable relief in Winter v. Natural Resources Defense Council, Inc., instructing 16 that the plaintiff “must establish that he is likely to succeed on the merits, that 17 he is likely to suffer irreparable harm in the absence of preliminary relief, that 18 the balance of equities tips in his favor, and that an injunction [or restraining 19 order] is in the public interest.” 555 U.S. at 20. The Ninth Circuit also recognizes 20 an additional standard: “if a plaintiff can only show that there are ‘serious 21 questions going to the merits’—a lesser showing than likelihood of success on the 22 merits—then a preliminary injunction may still issue if the ‘balance of hardships 23 tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.’” 24 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (2013) (quoting 25 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 26 27
28 Emergency Grievance should respond to the filing offender no later than is necessary to prevent serious injury or a breach of security.” 2 simply maintaining the status quo during litigation—bears a “doubly demanding” 3 burden: “[he] must establish that the law and facts clearly favor [his] position, 4 not simply that [he] is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 5 (9th Cir. 2015). The Ninth Circuit has cautioned that mandatory injunctions are 6 “particularly disfavored” and “should not issue in doubtful cases.” Id. (cleaned 7 up). And the PLRA similarly instructs that any restraining order or preliminary 8 injunction granted with respect to prison conditions “must be narrowly drawn, 9 extend no further than necessary to correct the harm the court finds requires 10 preliminary relief, and be the least intrusive means necessary to correct that 11 harm.” 18 U.S.C. § 3626(a)(2). 12 As noted above, Barnes’s motion is deficient because it does not state 13 whether prison staff or officials knew about the ophthalmologist’s order, how and 14 when they knew about it, and how they’ve responded to that medical need. For 15 instance, the motion jumps from the ophthalmologist’s treatment plan on March 16 25th to concluding on May 1st that “the prison has failed to address the eye issue 17 since it started” without reference to what happened in between. A prisoner 18 seeking a remedy for unsafe conditions does not have to await a tragic event such 19 as an actual assault before obtaining relief. Farmer v. Brennan, 511 U.S. 825, 20 845 (1994). But “[a]n inmate seeking an injunction on the ground that there is a 21 contemporary violation of a nature likely to continue must adequately plead such 22 a violation.” Id. at 845–46 (cleaned up). And the inmate must demonstrate that 23 prison officials are “knowingly and unreasonably disregarding an objectively 24 intolerable risk of harm, and that they will continue to do so[.]” Id. at 846. 25 However, the fact “[t]hat prison officials’ current attitudes and conduct must be 26 assessed in an action for injunctive relief does not mean, of course, that inmates 27 are free to bypass adequate internal prison procedures and bring their health and 28 safety concerns directly to court.” Id. (cleaned up). 1 || II. CONCLUSION 2 It is therefore ordered that the Motion for Leave to Request an Injunction 3 || (ECF No. 1-1) is denied without prejudice. 4 It is further ordered that Barnes has until June 4th, 2025, to file a signed 5 || complaint. 6 Barnes is advised that this action will be subject to dismissal without 7 || prejudice if he fails to timely file a complaint. 8 The Clerk of the Court is directed to send Plaintiff Barnes the approved 9 || form for filing a 42 U.S.C. § 1983 complaint with instructions. 10 11 12 DATED THIS Sth day of May, 2025. 13 14 Aras plored Jen 15 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28