2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 MARK PICOZZI, Case No. 2:22-cv-01011-ART-EJY 5 Plaintiff, ORDER 6 v.
7 STATE OF NEVADA, et al.,
8 Defendants.
10 Pro se Plaintiff Mark Picozzi (“Picozzi”), who is incarcerated in the custody 11 of the Nevada Department of Corrections (“NDOC”), has submitted a civil-rights 12 complaint under 42 U.S.C. § 1983 and three motions for injunctive relief and a 13 temporary restraining order. (ECF Nos. 5; 6; 8.) The Court denies his motions 14 because they are not meritorious. 15 I. Relevant background 16 Picozzi’s First Amended Complaint (“FAC”) contains allegations related to 17 failure to treat bleeding hemorrhoids and a back condition, failure of NDOC staff 18 to process requests to the law library, mishandling of grievance forms, refusal to 19 sell him a television, withholding of periodicals, opening of legal mail outside of 20 his presence, and COVID-19 related lockdowns that prevented Picozzi from 21 consulting with his habeas attorney and Catholic clergy. (ECF No. 10.) 22 After screening, this Court permitted various constitutional claims to 23 proceed against Defendants. (ECF No. 9 at 21-22.) This Court allowed Picozzi’s 24 First Amendment retaliation allegations against Defendants James Scally, Julie 25 Williams, Jennifer Nash, and Ronald Oliver for allegedly losing grievances or 26 documents attached to grievances to survive. This Court allowed Picozzi’s 27 allegations of Eighth Amendment deliberate indifference to his hemorrhoid 28 1 condition survive against Defendants Dante Famy, Gregory Bryan, Gregory 2 Martin, George Pele-Taino, Marie Cervanes, Jaymie Cabrera, Rio Manalang, 3 Tonya Perry, Nick, Arrey, Hennequin, Francis Moka, Livingston, Torres, and J. 4 Barth. This Court allowed Picozzi’s allegations of Eighth Amendment deliberate 5 indifference to his back condition survive against Defendants Famy, Bryan, 6 Martin, Pele-Taino, Cervanes, Cabrera, Manalang, Perry, and Nick. This Court 7 allowed Picozzi’s allegations of Eighth Amendment deliberate indifference to 8 unsanitary conditions survive against Defendants Famy, Bryan, Martin, Pele- 9 Taino, Cervanes, Cabrera, Manalang, Perry, Nick, and Barth. This Court allowed 10 Picozzi’s allegations that Defendants Dean Ontiveros and A. Alvarez violated his 11 Fourteenth Amendment due process rights during his disciplinary hearing to 12 survive. This Court also allowed Picozzi’s allegations that Defendants Graham, 13 Mark, Nash, Danyele Sipes a.k.a. Danyele Madsen, William Kuloloia, Kristi 14 Roberson, Barth, Ontiveros, and Pele-Taino violated his Fourteenth Amendment 15 right to access the courts survive because requests to the law library for legal 16 research, permission to attend the law library and to file documents with the 17 Court were never processed and caused missed deadlines to survive. 18 Before the Court are two motions for preliminary injunctions (ECF Nos. 5; 19 6) and a motion for a temporary restraining Order (ECF No. 8). ECF Nos. 5 and 6 20 are identical. In ECF No. 5, Picozzi requests that the Court order injunctive relief 21 ordering he receive medical access to serious medical needs, surgery on bleeding 22 hemorrhoids, blood pressure checks, blood draws for diabetes, a blood count, 23 and for Defendants to stop retaliation by denying him an opportunity to purchase 24 a T.V. and fan. (ECF No. 5.) Picozzi’s request for a restraining order asks that the 25 Court order that Defendants stop denying him back pain and cardiac medications 26 (presumably for blood pressure and to control his heartbeat) as well as 27 suppositories, schedule surgery, sell Picozzi a fan and allow Picozzi to receive the 28 fan as soon as possible, answer the emergency button, get Picozzi a “booster 1 shot”, and follow surgeons’ orders prior to surgery. (ECF No. 8.) Defendants have 2 opposed the motions (ECF Nos. 22; 23; 24.) Picozzi replied. (ECF No. 55.) 3 Relevant to the pending motions is Picozzi’s pleading regarding imminent 4 harm. (ECF No. 45.) Picozzi explains that he went to St. Dominican Hospital for 5 his hemorrhoid surgery, but it was not done due to cardiac issues. The provider 6 suggested a cardiac catheterization be performed. (Id.) 7 II. Legal Standard 8 Restraining orders and preliminary injunctions are “extraordinary 9 remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 10 U.S. 7, 24 (2008). The legal standard for obtaining a temporary restraining order 11 and the legal standard for obtaining a preliminary injunction are “substantially 12 identical.” See Stuhlbarg Intern. Sales Co. v. John D. Bush and Co., 240 F.3d 832, 13 839 n.7 (9th Cir. 2001), overruled on other grounds by Winter, 555 U.S. at 20. 14 The Supreme Court clarified the standard for these forms of equitable relief in 15 Winter, instructing that the plaintiff “must establish that [he] is likely to succeed 16 on the merits, that [he] is likely to suffer irreparable harm in the absence of 17 preliminary relief, that the balance of equities tips in [his] favor, and that an 18 injunction [or restraining order] is in the public interest.” 555 U.S. at 20. The 19 Ninth Circuit also recognizes an additional standard: “if a plaintiff can only show 20 that there are ‘serious questions going to the merits’—a lesser showing than 21 likelihood of success on the merits—then a preliminary injunction may still issue 22 if the ‘balance of hardships tips sharply in the plaintiff’s favor, and the other two 23 Winter factors are satisfied.’” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 24 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 25 F.3d 1127, 1135 (9th Cir. 2011)). 26 A plaintiff who seeks a mandatory injunction—one that goes beyond simply 27 maintaining the status quo during litigation—bears a “doubly demanding” 28 burden: “[he] must establish that the law and facts clearly favor [his] position, 1 not simply that [he] is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 2 (9th Cir. 2015) (en banc). The Ninth Circuit has cautioned that mandatory 3 injunctions are “particularly disfavored” and “should not issue in doubtful cases.” 4 Id. (internal quotations omitted). The Prison Litigation Reform Act (“PLRA”) 5 similarly instructs that any restraining order or preliminary injunction granted 6 with respect to prison conditions “must be narrowly drawn, extend no further 7 than necessary to correct the harm the court finds requires preliminary relief, 8 and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 9 3626(a)(2). 10 Finally, “there must be a relationship between the injury claimed in the 11 motion for injunctive relief and the conduct asserted in the underlying 12 complaint.” Pac. Radiation Oncology, LLC v. Queen’s Medical Ctr., 810 F.3d 631, 13 636 (9th Cir. 2015) (“Pacific Radiation”). “This requires a sufficient nexus between 14 the claims raised in a motion for injunctive relief and the claims in the underlying 15 complaint itself.” Id. The necessary connection is satisfied “where the preliminary 16 injunction would grant ‘relief of the same character as that which may be granted 17 finally.’” Id. (quoting De Beers Consol. Mines, 325 U.S. 212, 220 (1945)).
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 MARK PICOZZI, Case No. 2:22-cv-01011-ART-EJY 5 Plaintiff, ORDER 6 v.
7 STATE OF NEVADA, et al.,
8 Defendants.
10 Pro se Plaintiff Mark Picozzi (“Picozzi”), who is incarcerated in the custody 11 of the Nevada Department of Corrections (“NDOC”), has submitted a civil-rights 12 complaint under 42 U.S.C. § 1983 and three motions for injunctive relief and a 13 temporary restraining order. (ECF Nos. 5; 6; 8.) The Court denies his motions 14 because they are not meritorious. 15 I. Relevant background 16 Picozzi’s First Amended Complaint (“FAC”) contains allegations related to 17 failure to treat bleeding hemorrhoids and a back condition, failure of NDOC staff 18 to process requests to the law library, mishandling of grievance forms, refusal to 19 sell him a television, withholding of periodicals, opening of legal mail outside of 20 his presence, and COVID-19 related lockdowns that prevented Picozzi from 21 consulting with his habeas attorney and Catholic clergy. (ECF No. 10.) 22 After screening, this Court permitted various constitutional claims to 23 proceed against Defendants. (ECF No. 9 at 21-22.) This Court allowed Picozzi’s 24 First Amendment retaliation allegations against Defendants James Scally, Julie 25 Williams, Jennifer Nash, and Ronald Oliver for allegedly losing grievances or 26 documents attached to grievances to survive. This Court allowed Picozzi’s 27 allegations of Eighth Amendment deliberate indifference to his hemorrhoid 28 1 condition survive against Defendants Dante Famy, Gregory Bryan, Gregory 2 Martin, George Pele-Taino, Marie Cervanes, Jaymie Cabrera, Rio Manalang, 3 Tonya Perry, Nick, Arrey, Hennequin, Francis Moka, Livingston, Torres, and J. 4 Barth. This Court allowed Picozzi’s allegations of Eighth Amendment deliberate 5 indifference to his back condition survive against Defendants Famy, Bryan, 6 Martin, Pele-Taino, Cervanes, Cabrera, Manalang, Perry, and Nick. This Court 7 allowed Picozzi’s allegations of Eighth Amendment deliberate indifference to 8 unsanitary conditions survive against Defendants Famy, Bryan, Martin, Pele- 9 Taino, Cervanes, Cabrera, Manalang, Perry, Nick, and Barth. This Court allowed 10 Picozzi’s allegations that Defendants Dean Ontiveros and A. Alvarez violated his 11 Fourteenth Amendment due process rights during his disciplinary hearing to 12 survive. This Court also allowed Picozzi’s allegations that Defendants Graham, 13 Mark, Nash, Danyele Sipes a.k.a. Danyele Madsen, William Kuloloia, Kristi 14 Roberson, Barth, Ontiveros, and Pele-Taino violated his Fourteenth Amendment 15 right to access the courts survive because requests to the law library for legal 16 research, permission to attend the law library and to file documents with the 17 Court were never processed and caused missed deadlines to survive. 18 Before the Court are two motions for preliminary injunctions (ECF Nos. 5; 19 6) and a motion for a temporary restraining Order (ECF No. 8). ECF Nos. 5 and 6 20 are identical. In ECF No. 5, Picozzi requests that the Court order injunctive relief 21 ordering he receive medical access to serious medical needs, surgery on bleeding 22 hemorrhoids, blood pressure checks, blood draws for diabetes, a blood count, 23 and for Defendants to stop retaliation by denying him an opportunity to purchase 24 a T.V. and fan. (ECF No. 5.) Picozzi’s request for a restraining order asks that the 25 Court order that Defendants stop denying him back pain and cardiac medications 26 (presumably for blood pressure and to control his heartbeat) as well as 27 suppositories, schedule surgery, sell Picozzi a fan and allow Picozzi to receive the 28 fan as soon as possible, answer the emergency button, get Picozzi a “booster 1 shot”, and follow surgeons’ orders prior to surgery. (ECF No. 8.) Defendants have 2 opposed the motions (ECF Nos. 22; 23; 24.) Picozzi replied. (ECF No. 55.) 3 Relevant to the pending motions is Picozzi’s pleading regarding imminent 4 harm. (ECF No. 45.) Picozzi explains that he went to St. Dominican Hospital for 5 his hemorrhoid surgery, but it was not done due to cardiac issues. The provider 6 suggested a cardiac catheterization be performed. (Id.) 7 II. Legal Standard 8 Restraining orders and preliminary injunctions are “extraordinary 9 remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 10 U.S. 7, 24 (2008). The legal standard for obtaining a temporary restraining order 11 and the legal standard for obtaining a preliminary injunction are “substantially 12 identical.” See Stuhlbarg Intern. Sales Co. v. John D. Bush and Co., 240 F.3d 832, 13 839 n.7 (9th Cir. 2001), overruled on other grounds by Winter, 555 U.S. at 20. 14 The Supreme Court clarified the standard for these forms of equitable relief in 15 Winter, instructing that the plaintiff “must establish that [he] is likely to succeed 16 on the merits, that [he] is likely to suffer irreparable harm in the absence of 17 preliminary relief, that the balance of equities tips in [his] favor, and that an 18 injunction [or restraining order] is in the public interest.” 555 U.S. at 20. The 19 Ninth Circuit also recognizes an additional standard: “if a plaintiff can only show 20 that there are ‘serious questions going to the merits’—a lesser showing than 21 likelihood of success on the merits—then a preliminary injunction may still issue 22 if the ‘balance of hardships tips sharply in the plaintiff’s favor, and the other two 23 Winter factors are satisfied.’” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 24 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 25 F.3d 1127, 1135 (9th Cir. 2011)). 26 A plaintiff who seeks a mandatory injunction—one that goes beyond simply 27 maintaining the status quo during litigation—bears a “doubly demanding” 28 burden: “[he] must establish that the law and facts clearly favor [his] position, 1 not simply that [he] is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 2 (9th Cir. 2015) (en banc). The Ninth Circuit has cautioned that mandatory 3 injunctions are “particularly disfavored” and “should not issue in doubtful cases.” 4 Id. (internal quotations omitted). The Prison Litigation Reform Act (“PLRA”) 5 similarly instructs that any restraining order or preliminary injunction granted 6 with respect to prison conditions “must be narrowly drawn, extend no further 7 than necessary to correct the harm the court finds requires preliminary relief, 8 and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 9 3626(a)(2). 10 Finally, “there must be a relationship between the injury claimed in the 11 motion for injunctive relief and the conduct asserted in the underlying 12 complaint.” Pac. Radiation Oncology, LLC v. Queen’s Medical Ctr., 810 F.3d 631, 13 636 (9th Cir. 2015) (“Pacific Radiation”). “This requires a sufficient nexus between 14 the claims raised in a motion for injunctive relief and the claims in the underlying 15 complaint itself.” Id. The necessary connection is satisfied “where the preliminary 16 injunction would grant ‘relief of the same character as that which may be granted 17 finally.’” Id. (quoting De Beers Consol. Mines, 325 U.S. 212, 220 (1945)). “Absent 18 that relationship or nexus, the district court lacks authority to grant the relief 19 requested.” Id. 20 III. Analysis 21 The Court cannot grant injunctive relief with respect to Picozzi’s requests that 22 this Court order that Defendants address serious medical needs, follow surgeons’ 23 orders, and stop retaliating against him because the Court does not have the 24 authority to generally order Defendants to follow the law. (See ECF Nos. 22; 23; 25 24.) Granting such general injunctive relief runs afoul of the PLRA’s instruction 26 that injunctive relief be narrowly tailored to the alleged harm. See 18 U.S.C. § 27 3626(a)(2). 28 The Court cannot order that Defendants provide Picozzi with hemorrhoid 1 surgery and tests related to the surgery because Picozzi’s requests for those 2 procedures are moot and unsupported by the record. “A claim is moot when the 3 issues presented are no longer live or the parties lack a legally cognizable interest 4 in the outcome. The basic question is whether there exists a present controversy 5 as to which effective relief can be granted.” Outdoor Media Group, Inc. v. City of 6 Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) quoting Village of Gambell v. Babbitt, 7 999 F.2d 403, 406 (9th Cir. 1993). When injunctive relief is at issue, mootness is 8 determined based upon the present circumstances. Mitchell v. Dupnik, 75 F.3d 9 517, 528 (9th Cir. 1996). It appears that Picozzi was scheduled for hemorrhoid 10 surgery, but the surgery could not be performed because certain cardiac issues 11 needed to first be resolved. (See ECF No. 24; 45.) Picozzi’s request for blood 12 pressure checks, blood draws for diabetes and blood counts appear to relate to 13 the underlying hemorrhoid surgery request and are thus likewise moot. It is also 14 not clear from the record that these exact tests have been prescribed and are 15 needed to get Picozzi ready for surgery. Thus, Picozzi’s requests are unsupported 16 by the record. He has thus not demonstrated a likelihood of success, let alone 17 that the law and facts clearly favor his position. 18 Picozzi’s requests that Defendants stop denying him medications for heart, 19 back, and hemorrhoid conditions are also unsupported by the record and too 20 vague and generalized for the Court to order relief. It appears Picozzi has been 21 prescribed and was given certain medications. It is not clear what other 22 medications are at issue, when they were prescribed, who prescribed them, and 23 what dosages were prescribed. Thus, Picozzi is unlikely to succeed on the merits 24 and has not demonstrated that the law and facts clearly favor his position. See 25 Garcia, 786 F.3d at 740. 26 With respect to Picozzi’s request that staff respond to emergency call 27 buttons, there is no allegation that this alleged misconduct is ongoing, so Picozzi 28 has not carried his burden of demonstrating a real or immediate threat of 1 || irreparable injury. Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1100 2 || (9th Cir. 2000)(“In the context of injunctive relief, the Plaintiff must demonstrate 3 || a real or immediate threat of an irreparable injury.”). 4 With respect to Picozzi’s request for injunctive relief pertaining to a COVID- 5 || 19 booster, televisions, and fans, these claims did not survive screening. (See 6 || ECF No. 9.) Accordingly, this Court lacks the authority to grant Picozzi’s 7 || requested relief. See Pacific Radiation, 810 F.3d at 636.! 8 I. Conclusion 9 IT IS THEREFORE ORDERED THAT Plaintiffs motions (ECF Nos. 5; 6; 8) 10 || are DENIED. 11 12 DATED THIS 24 day of February 2023. 13 14 Ares jlorect oun 18 ANNER TRAUM 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 _ 1 The Court does not need to reach all of the arguments raised by Defendants to resolve the 28 || pending motions.