Edmisten v. Gittere

• Court: District Court, D. Nevada
• Decided: March 15, 2023
• Docket: 3:22-cv-00158
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 JUSTIN EDMISTEN, Case No. 3:22-cv-00158-MMD-CLB

7 Plaintiff, ORDER v. 8 WILLIAM L. GITTERE, et al., 9 Defendants. 10 11 12 This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 13 by a state prisoner. Plaintiff has submitted an application to proceed in forma pauperis. 14 (ECF No. 1.) Based on the financial information provided, the Court finds that Plaintiff is 15 unable to prepay the full filing fee in this matter. 16 The Court entered a screening order on August 30, 2022. (ECF No. 7.) The 17 screening order imposed a 90-day stay and the Court entered a subsequent order in 18 which the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 19 7, 9.) The Office of the Attorney General has filed a status report indicating that settlement 20 has not been reached and informing the Court of its intent to proceed with this action. 21 (ECF No. 25.) 22 Plaintiff also filed a motion for preliminary injunction. (ECF No. 11.) Defendants 23 filed a response and Plaintiff submitted a reply. (ECF Nos. 12, 13.) Plaintiff seeks 24 immediate release due to the unsanitary conditions at the prison or to have half of Ely 25 State Prison shut down. (ECF No. 11 at 5.) 26 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, 27 never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). “A 1 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 2 the balance of equities tips in his favor, and that an injunction is in the public interest.” 3 Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 4 Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act (“PLRA”), 5 preliminary injunctive relief must be “narrowly drawn,” must “extend no further than 6 necessary to correct the harm,” and must be “the least intrusive means necessary to 7 correct the harm.” 18 U.S.C. § 3626(a)(2). 8 The Court denies the motion for preliminary injunction (ECF No. 11). Plaintiff seeks 9 to be released from prison due to unsanitary conditions or to shut half of the prison down. 10 However, these solutions are not the least intrusive means to correct living in unsanitary 11 conditions and are not narrowly drawn to correct the unsanitary conditions. 12 For the foregoing reasons, it is ordered that: 13 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is granted. 14 Plaintiff shall not be required to pay an initial installment of the filing fee. In the event that 15 this action is dismissed, the full filing fee must still be paid under 28 U.S.C. § 1915(b)(2). 16 2. Plaintiff is permitted to maintain this action to conclusion without the 17 necessity of prepayment of any additional fees or costs or the giving of security therefor. 18 3. Under 28 U.S.C. § 1915, as amended by the PLRA, the Nevada Department 19 of Corrections will forward payments from the account of Justin Edmisten, #1047583, to 20 the Clerk of the United States District Court, District of Nevada, 20% of the preceding 21 month's deposits (in months that the account exceeds $10.00) until the full $350 filing fee 22 has been paid for this action. The Clerk of the Court will send a copy of this order to the 23 Finance Division of the Clerk’s Office. The Clerk will send a copy of this order to the 24 attention of Chief of Inmate Services for the Nevada Department of Corrections, P.O. 25 Box 7011, Carson City, NV 89702. 26 4. The Clerk of the Court shall electronically serve a copy of this order and a 27 copy of Plaintiff’s first amended complaint (ECF No. 6) on the Office of the Attorney 1 General of the State of Nevada by adding the Attorney General of the State of Nevada to 2 the docket sheet. This does not indicate acceptance of service. 3 5. Service must be perfected within 90 days from the date of this order under 4 Fed. R. Civ. P. 4(m). 5 6. Subject to the findings of the screening order (ECF No. 7), within 21 days 6 of the date of entry of this order, the Attorney General’s Office shall file a notice advising 7 the Court and Plaintiff of: (a) the names of the defendants for whom it accepts service; 8 (b) the names of the defendants for whom it does not accept service, and (c) the names 9 of the defendants for whom it is filing the last-known-address information under seal. As 10 to any of the named defendants for whom the Attorney General’s Office cannot accept 11 service, the Office shall file, under seal, but shall not serve the inmate Plaintiff the last 12 known address(es) of those defendant(s) for whom it has such information. If the last 13 known address of the defendant(s) is a post office box, the Attorney General's Office shall 14 attempt to obtain and provide the last known physical address(es). 15 7. If service cannot be accepted for any of the named defendant(s), Plaintiff 16 shall file a motion identifying the unserved defendant(s), requesting issuance of a 17 summons, and specifying a full name and address for the defendant(s). For the 18 defendant(s) as to which the Attorney General has not provided last-known-address 19 information, Plaintiff shall provide the full name and address for the defendant(s). 20 8. If the Attorney General accepts service of process for any named 21 defendant(s), such defendant(s) shall file and serve an answer or other response to the 22 first amended complaint (ECF No. 6) within 60 days from the date of this order. 23 9. Plaintiff shall serve upon defendant(s) or, if an appearance has been 24 entered by counsel, upon their attorney(s), a copy of every pleading, motion, or other 25 document submitted for consideration by the Court. If Plaintiff electronically files a 26 document with the Court’s electronic-filing system, no certificate of service is required. 27 Fed. R. Civ. P. 5(d)(1)(B); LR IC 4-1(b); LR 5-1. However, if Plaintiff mails the document to the Court, Plaintiff shall include with the original document submitted for filing a 4|| certificate stating the date that a true and correct copy of the document was mailed to the 2|| defendants or counsel for the defendants. If counsel has entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, 4|| at the physical or electronic address stated therein. The Court may disregard any 5|| document received by a district judge or magistrate judge which has not been filed with 6|| the Clerk, and any document received by a district judge, magistrate judge, or the Clerk || which fails to include a certificate showing proper service when required. 8 10. ‘This case is no longer stayed. 9 11. Plaintiff's motion for preliminary injunction (ECF No. 11) is denied without 10|| prejudice. 11 DATED THIS 15" Day of March 2023.

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