Johnson v. Garofalo

• Court: District Court, D. Nevada
• Decided: February 14, 2023
• Docket: 3:21-cv-00239
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 LAUSTEVEION JOHSON, Case No. 3:21-cv-00239-MMD-CLB

7 Plaintiff, ORDER v. 8 MICAELA GAROFALO, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Lausteveion Johnson, currently incarcerated in the custody of the 13 Nevada Department of Corrections, filed a complaint under 42 U.S.C. § 1983. (ECF No. 14 12-1.) Before the Court is a Report and Recommendation of United States Magistrate 15 Judge Carla L. Baldwin (ECF No. 50 (“R&R”)), recommending that the Court deny 16 Plaintiff’s emergency motion for a preliminary injunction (ECF No. 35 (“Motion”).) Plaintiff 17 has not filed an objection to the R&R. Because the Court agrees with Judge Baldwin, and 18 as further explained below, the Court adopts the R&R in full. Accordingly, the Court denies 19 Plaintiff’s Motion. 20 II. BACKGROUND 21 The Court incorporates by reference Judge Baldwin’s description of the case’s 22 factual background and procedural history provided in the R&R, which the Court adopts. 23 (ECF No. 50 at 1-3.) 24 III. DISCUSSION 25 Judge Baldwin determines that Plaintiff seeks a “mandatory, as opposed to 26 prohibitory, injunction that the Court mandate a change to how his [good-time] credits 27 were awarded” for his parole eligibility date (“P.E.D.”) (ECF No. 50 at 5.) In other words, 28 Plaintiff requests a mandatory preliminary injunction because he does not simply ask the 2 force Defendants to take action as to his credits. (Id.) See also Marlyn Nutraceuticals, Inc. 3 v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (recognizing that a 4 mandatory injunction is “particularly disfavored” because it “orders a responsible party to 5 take action”) (citation and quotations omitted); Anderson v. United States, 612 F.2d 1112, 6 1114-15 (9th Cir. 1979) (citations omitted). 7 Judge Baldwin finds that Plaintiff not only fails to satisfy the four-factor Winter test, 8 but also fails to meet his heightened burden under the Prisoner Litigation Reform Act and 9 otherwise establish that “the facts and law clearly favor the moving party,” and that 10 “extreme or very serious damage will result” in the absence of injunctive relief. Garcia v. 11 Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citation and quotations omitted); see also 12 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary 13 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 14 irreparable harm in the absence of preliminary relief, that the balance of equities tips in 15 his favor, and that an injunction is in the public interest.”); Martin v. Int’l Olympic Comm., 16 740 F.2d 670, 675 (9th Cir. 1984) (warning that courts should be “extremely cautious” 17 when issuing a mandatory preliminary injunction); 18 U.S.C. § 3626(a)(2) (heightening 18 the standard for prisoner litigants seeking preliminary injunctive relief). 19 After holding an evidentiary hearing on the Motion (ECF No. 49), Judge Baldwin 20 concludes that Defendants did in fact properly apply Plaintiff’s good-time credits to his 21 P.E.D. (ECF No. 50 at 7.) Moreover, Judge Baldwin finds that, regardless of whether 22 Plaintiff’s credits were properly calculated, Plaintiff has offered no evidence showing (1) 23 that Defendants LaFleur or Ferro were responsible for calculating or applying Plaintiff’s 24 credits, or (2) that the alleged misapplication of credits was because of, or in retaliation 25 for, Plaintiff’s filing of grievances. (Id.) “Because the facts here do not clearly show that 26 [Plaintiff] was retaliated against,” Judge Balwin finds that no adverse action occurred and 27 that “the Court cannot issue a mandatory preliminary injunction.” (Id. at 7-8.) 28 Additionally, Judge Baldwin finds that Plaintiff has failed to show he would face 1 || irreparable harm or “extreme or very serious damage” in the absence of preliminary 2 || injunctive relief. (/d. at 8-10.) See also Anderson, 612 F.2d at 1114-15. Judge Baldwin 3 || explains that because applying good-time credits toward Plaintiffs P.E.D. would not 4 || automatically speed up Plaintiffs release date, and because Plaintiff has already been 5 || scheduled for the earliest parole hearing possible, Plaintiff “cannot show that extreme or 6 || very serious harm will occur if a preliminary injunction is not imposed.” (/d. at 9-10.) 7 For these reasons, Judge Baldwin recommends that the Court deny Plaintiff's 8 || Motion. (/d.) See also Marlyn, 571 F.3d at 879; Anderson, 612 F.2d at 1114-15. 9 Because Plaintiff has not objected to the R&R, the Court need not review Judge 10 || Baldwin's recommendations de novo; the Court “need only satisfy itself that there is no 11 || clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. 12 || P. 72(b), advisory committee note to 1983 amendments; see a/so 28 U.S.C. § 636(b)(1); 13 || Thomas v. Arn, 474 U.S. 140, 149 (1985) (holding that when a party fails to object to a 14 || magistrate’s recommendation, the Court need not conduct “any review at all. . . of any 15 || issue that is not the subject of an objection”); United States v. Reyna-Tapia, 328 F.3d 16 |} 1114, 1116 (9th Cir. 2003) (“[DJe novo review of the magistrate judges’ findings and 17 || recommendations is required if, but only if, one or both parties file objections to the 18 || findings and recommendations.”). As the Court finds no clear error on the face of the 19 || record before it, the Court will accept and adopt the R&R in full. 20 || IV. CONCLUSION 21 It is therefore ordered that Judge Baldwin’s Report and Recommendation (ECF 22 || No. 50) is accepted and adopted in full. 23 It is further ordered that Plaintiff's emergency motion for a preliminary injunction 24 || (ECF No. 35) is denied. 25 DATED THIS 14" Day of February 2023.

27 □□ MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE