1 WO 2 JDN 3 4 5 8 9 Jeremy Pinson, No. CV 20-00169-TUC-RM 10 Plaintiff, 11 vs. ORDER 12 Othon, et al., 13 Defendants. 14 15 16 Plaintiff Jeremy Pinson,1 who is currently confined in the Special Housing Unit 17 (“SHU”) at the United States Penitentiary in Tucson, Arizona (“USP-Tucson”), brought 18 this pro se civil rights action under 28 U.S.C. § 1331 and Bivens v. Six Unknown Named 19 Agents of Federal Bureau of Narcotics, 403 U.S 388 (1971), against multiple officials at 20 USP-Tucson. (Doc. 54.)2 Pinson asserted Eighth Amendment conditions-of-confinement 21 claims based on Defendants’ alleged failure to take measures to help protect her against 22 the risk of contracting COVID-19. (Id.) Before the Court is Pinson’s Motion for 23 Temporary Restraining Order (“TRO”) seeking an Order directing Defendants to provide 24
25 1 Plaintiff is transgender and uses feminine pronouns. (See Doc. 11, Ex. 1.) 26 2 Defendants are (1) Warden Barbara von Blanckensee; Associate Wardens 27 (2) Michael Segal and (3) D. Gonzalez; (4) Bureau of Prisons (“BOP”) Chief John O’Brien; SHU Lieutenants (5) Jeremy Ulrich and (6) Garrett Merrell; (7) Western 28 Regional Director Gene Beasley; (8) Complex Captain Darrin McWhorter; and SHU Officers (9) Othon, (10) D. Blondeaux, (11) J. Dukett, (12) Estrella, (13) Martinez, (14) Kurtz, and (15) T. Schneider. (Doc. 54.) 1 all prisoners in USP-Tucson with N95 respirator masks in response to the COVID-19 2 pandemic. (Doc. 62.) Defendants oppose the Motion. (Doc. 73.) The Motion for TRO 3 will be denied. 4 I. Standard for Injunctive Relief 5 The standards for issuing a temporary restraining order and a preliminary 6 injunction are the same. White v. Lindermen, No. CV 11-8152-PCT-RCB, 2012 WL 7 5040850, at *1 (D. Ariz. 2012). “A preliminary injunction is an extraordinary and drastic 8 remedy, one that should not be granted unless the movant, by a clear showing, carries the 9 burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (internal 10 citation and quotation omitted); see also Winter v. Natural Res. Def. Council, Inc., 555 11 U.S. 7, 24 (2008) (“a preliminary injunction is an extraordinary remedy never awarded as 12 of right.”). 13 A plaintiff seeking injunctive relief must show (1) she is likely to succeed on the 14 merits, (2) she is likely to suffer irreparable harm without an injunction, (3) the balance 15 of equities tips in her favor, and (4) the requested injunction is in the public interest. 16 Winter, 555 U.S. at 20. The movant has the burden of proof on each element of the test. 17 Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Calif. 2000). 18 “Speculative injury does not constitute irreparable injury to warrant granting a 19 preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 20 (9th Cir. 1988) (internal citation omitted). “A plaintiff must do more than merely allege 21 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate 22 threatened injury as a prerequisite to preliminary injunctive relief.” Id. 23 Where a plaintiff seeks a mandatory injunction, which orders a party to take a 24 specific action, as opposed to a prohibitory injunction, which prohibits a party from 25 acting and thus preserves the status quo, the plaintiff faces “heightened scrutiny.” Dahl 26 v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993); see also Comm. of Cent. Am. 27 Refugees, v. INS, 795 F.2d 1434, 1441 (9th Cir.), amended, 807 F.2d 769 (9th Cir. 1986) 28 1 (courts should be “extremely cautious” about issuing a mandatory injunction and one 2 should not issue “unless the facts and law clearly favor the plaintiff”). 3 The Prison Litigation Reform Act imposes additional requirements on prisoner 4 litigants who seek preliminary injunctive relief against prison officials and requires that 5 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 6 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 7 987, 999 (9th Cir. 2000). 8 II. Pinson’s Motion for TRO 9 Pinson moves the Court to enjoin Defendants “from refusing to supply N95 masks 10 to all inmates in an equal fashion as the staff at USP Tucson.” (Doc. 62.) Although 11 written in prohibitory terms, Pinson effectively seeks a mandatory injunction, requiring 12 that Defendants begin providing N95 masks to prisoners. Pinson states that on October 13 21, 2020, a COVID-19 outbreak was declared at USP-Tucson, and since then she has 14 observed USP-Tucson staff wearing N95 masks. (Id. at 1 & Attach., Pinson Decl. ¶ 1.) 15 She further states that she is “locked in a prison where she shares (along with 1300 16 others) a ventilation system with no filtration to prevent COVID-19 from spreading,” and 17 the fact that prison staff have recently upgraded their masks indicates “a sudden and 18 serious change in the risk of COVID-19.” (Doc. 62 at 1.) Pinson argues that it is 19 “morally reprehensible” to provide upgraded masks to staff but not to prisoners. (Id. at 20 2.) 21 Defendants oppose the Motion and argue that Pinson has not met her burden to 22 show that a TRO should issue. (Doc. 73.) Defendants argue that Pinson has failed to 23 carry her burden with respect to the second factor for injunctive relief because she has not 24 shown that the lack of an N95 respirator will cause her irreparable injury. (Id. at 4.) 25 Defendants assert that “the provision of N95 respirators to inmates is not medically 26 indicated, [is] impractical, and poses a significant security risk to the institution.” (Id.) 27 Defendants rely on the declaration of Thomas Dixon, R.N., who is the Bureau of 28 Prisons’ BOP Quality Improvement/Infection Prevention and Control Consultant for the 1 Western Region Health Services Medical Asset Support Team. (Id., Ex. A, Dixon Decl. 2 ¶ 1.) Dixon states that Pinson was placed in COVID-19 quarantine within the SHU on 3 September 30, 2020, and has remained in the same quarantine cell since, which has 4 minimized her exposure to COVID-19. (Id. ¶ 4.) Dixon further states that, since October 5 1, 2020, Pinson has been tested for COVID-19 four times and all test results have been 6 negative. (Id.) 7 Dixon opines that the provision of N95 respirators to prisoners is not medically 8 indicated and is “problematic and inappropriate.” (Id. ¶ 6.) Dixon outlines the mask 9 requirements for USP-Tucson staff and how the requirements have evolved over the 10 course of the pandemic. (Id. ¶¶ 8–10.) Dixon states that staff who work in “isolation 11 units,” which hold all suspected and confirmed COVID-19 positive prisoners, are 12 required to wear N95 respirators as part of their personal protective equipment. (Id. ¶ 8.) 13 Some of these staff choose to wear the N95 throughout the day. (Id.) Although N95 14 masks are only required for staff working in isolation units, they are recommended for all 15 staff who “move from cell to cell, range to range, and sometimes from unit to unit” 16 throughout the day. (Id. ¶ 9.) The risk of exposure for staff members is higher than for 17 prisoners due to the nature of their jobs and their exposure to hundreds of prisoners each 18 day.
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1 WO 2 JDN 3 4 5 8 9 Jeremy Pinson, No. CV 20-00169-TUC-RM 10 Plaintiff, 11 vs. ORDER 12 Othon, et al., 13 Defendants. 14 15 16 Plaintiff Jeremy Pinson,1 who is currently confined in the Special Housing Unit 17 (“SHU”) at the United States Penitentiary in Tucson, Arizona (“USP-Tucson”), brought 18 this pro se civil rights action under 28 U.S.C. § 1331 and Bivens v. Six Unknown Named 19 Agents of Federal Bureau of Narcotics, 403 U.S 388 (1971), against multiple officials at 20 USP-Tucson. (Doc. 54.)2 Pinson asserted Eighth Amendment conditions-of-confinement 21 claims based on Defendants’ alleged failure to take measures to help protect her against 22 the risk of contracting COVID-19. (Id.) Before the Court is Pinson’s Motion for 23 Temporary Restraining Order (“TRO”) seeking an Order directing Defendants to provide 24
25 1 Plaintiff is transgender and uses feminine pronouns. (See Doc. 11, Ex. 1.) 26 2 Defendants are (1) Warden Barbara von Blanckensee; Associate Wardens 27 (2) Michael Segal and (3) D. Gonzalez; (4) Bureau of Prisons (“BOP”) Chief John O’Brien; SHU Lieutenants (5) Jeremy Ulrich and (6) Garrett Merrell; (7) Western 28 Regional Director Gene Beasley; (8) Complex Captain Darrin McWhorter; and SHU Officers (9) Othon, (10) D. Blondeaux, (11) J. Dukett, (12) Estrella, (13) Martinez, (14) Kurtz, and (15) T. Schneider. (Doc. 54.) 1 all prisoners in USP-Tucson with N95 respirator masks in response to the COVID-19 2 pandemic. (Doc. 62.) Defendants oppose the Motion. (Doc. 73.) The Motion for TRO 3 will be denied. 4 I. Standard for Injunctive Relief 5 The standards for issuing a temporary restraining order and a preliminary 6 injunction are the same. White v. Lindermen, No. CV 11-8152-PCT-RCB, 2012 WL 7 5040850, at *1 (D. Ariz. 2012). “A preliminary injunction is an extraordinary and drastic 8 remedy, one that should not be granted unless the movant, by a clear showing, carries the 9 burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (internal 10 citation and quotation omitted); see also Winter v. Natural Res. Def. Council, Inc., 555 11 U.S. 7, 24 (2008) (“a preliminary injunction is an extraordinary remedy never awarded as 12 of right.”). 13 A plaintiff seeking injunctive relief must show (1) she is likely to succeed on the 14 merits, (2) she is likely to suffer irreparable harm without an injunction, (3) the balance 15 of equities tips in her favor, and (4) the requested injunction is in the public interest. 16 Winter, 555 U.S. at 20. The movant has the burden of proof on each element of the test. 17 Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Calif. 2000). 18 “Speculative injury does not constitute irreparable injury to warrant granting a 19 preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 20 (9th Cir. 1988) (internal citation omitted). “A plaintiff must do more than merely allege 21 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate 22 threatened injury as a prerequisite to preliminary injunctive relief.” Id. 23 Where a plaintiff seeks a mandatory injunction, which orders a party to take a 24 specific action, as opposed to a prohibitory injunction, which prohibits a party from 25 acting and thus preserves the status quo, the plaintiff faces “heightened scrutiny.” Dahl 26 v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993); see also Comm. of Cent. Am. 27 Refugees, v. INS, 795 F.2d 1434, 1441 (9th Cir.), amended, 807 F.2d 769 (9th Cir. 1986) 28 1 (courts should be “extremely cautious” about issuing a mandatory injunction and one 2 should not issue “unless the facts and law clearly favor the plaintiff”). 3 The Prison Litigation Reform Act imposes additional requirements on prisoner 4 litigants who seek preliminary injunctive relief against prison officials and requires that 5 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 6 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 7 987, 999 (9th Cir. 2000). 8 II. Pinson’s Motion for TRO 9 Pinson moves the Court to enjoin Defendants “from refusing to supply N95 masks 10 to all inmates in an equal fashion as the staff at USP Tucson.” (Doc. 62.) Although 11 written in prohibitory terms, Pinson effectively seeks a mandatory injunction, requiring 12 that Defendants begin providing N95 masks to prisoners. Pinson states that on October 13 21, 2020, a COVID-19 outbreak was declared at USP-Tucson, and since then she has 14 observed USP-Tucson staff wearing N95 masks. (Id. at 1 & Attach., Pinson Decl. ¶ 1.) 15 She further states that she is “locked in a prison where she shares (along with 1300 16 others) a ventilation system with no filtration to prevent COVID-19 from spreading,” and 17 the fact that prison staff have recently upgraded their masks indicates “a sudden and 18 serious change in the risk of COVID-19.” (Doc. 62 at 1.) Pinson argues that it is 19 “morally reprehensible” to provide upgraded masks to staff but not to prisoners. (Id. at 20 2.) 21 Defendants oppose the Motion and argue that Pinson has not met her burden to 22 show that a TRO should issue. (Doc. 73.) Defendants argue that Pinson has failed to 23 carry her burden with respect to the second factor for injunctive relief because she has not 24 shown that the lack of an N95 respirator will cause her irreparable injury. (Id. at 4.) 25 Defendants assert that “the provision of N95 respirators to inmates is not medically 26 indicated, [is] impractical, and poses a significant security risk to the institution.” (Id.) 27 Defendants rely on the declaration of Thomas Dixon, R.N., who is the Bureau of 28 Prisons’ BOP Quality Improvement/Infection Prevention and Control Consultant for the 1 Western Region Health Services Medical Asset Support Team. (Id., Ex. A, Dixon Decl. 2 ¶ 1.) Dixon states that Pinson was placed in COVID-19 quarantine within the SHU on 3 September 30, 2020, and has remained in the same quarantine cell since, which has 4 minimized her exposure to COVID-19. (Id. ¶ 4.) Dixon further states that, since October 5 1, 2020, Pinson has been tested for COVID-19 four times and all test results have been 6 negative. (Id.) 7 Dixon opines that the provision of N95 respirators to prisoners is not medically 8 indicated and is “problematic and inappropriate.” (Id. ¶ 6.) Dixon outlines the mask 9 requirements for USP-Tucson staff and how the requirements have evolved over the 10 course of the pandemic. (Id. ¶¶ 8–10.) Dixon states that staff who work in “isolation 11 units,” which hold all suspected and confirmed COVID-19 positive prisoners, are 12 required to wear N95 respirators as part of their personal protective equipment. (Id. ¶ 8.) 13 Some of these staff choose to wear the N95 throughout the day. (Id.) Although N95 14 masks are only required for staff working in isolation units, they are recommended for all 15 staff who “move from cell to cell, range to range, and sometimes from unit to unit” 16 throughout the day. (Id. ¶ 9.) The risk of exposure for staff members is higher than for 17 prisoners due to the nature of their jobs and their exposure to hundreds of prisoners each 18 day. (Id.) 19 Defendants also rely on guidance published by the Centers for Disease Control 20 and Prevention (“CDC”), which has recommended cloth or non-surgical disposable 21 masks for the general public. (Id. ¶ 11 & Attach. 3.) Defendants submit a copy of the 22 CDC guidance on masks, which states: 23 The Centers for Disease Control and Prevention (CDC) does not 24 recommend that the general public wear N95 respirators to protect themselves from respiratory diseases, including coronavirus (COVID-19). 25 Those are critical supplies that must continue to be reserved for health care 26 workers and other medical first responders, as recommended by current DC guidance. 27 . . . 28 The CDC recommends that members of the public use simple cloth face 1 coverings when in a public setting to slow the spread of the virus . . . . 2 (Doc. 73-1 at 11.) 3 Dixon explains that to be effective, N95 respirator wearers must be fit-tested for a 4 specific make, model, and size of respirator; they must comply with respirator facial hair 5 grooming standards; and they must undergo medical screening to ensure they can tolerate 6 the additional restrictions the device places on the respiratory system. (Doc. 73, Ex. A, 7 Dixon Decl. ¶ 12.) Dixon submits that attempting to medically screen and properly fit all 8 prisoners for N95 respirators would require resources currently unavailable. (Id.) He 9 states that USP-Tucson’s limited supply of N95 respirators is barely sufficient to cover 10 those staff members required to wear them. (Id. ¶ 14.) 11 III. Discussion 12 Pinson’s request for injunctive relief is specific—that Defendants be ordered to 13 provide her and other prisoners N95 respirators. (Doc. 62.) The CDC guidance 14 recommends, however, that the general public wear cloth masks and specifically advises 15 that the public not wear N95 respirators. Pinson does not present any facts to support that 16 she and other prisoners are in a position similar to medical care workers or first 17 responders, who the CDC advises wear N95 respirators. Defendants’ evidence also 18 establishes that the USP-Tucson’s supply of N95 respirators is limited; thus, pursuant to 19 the CDC guidelines, the N95 respirators must be reserved for health care workers and 20 medical first responders. 21 Based on this evidence, Pinson cannot show that, absent an injunction for an N95 22 respirator, she will be exposed to irreparable harm. See Caribbean Marine Servs., 844 23 F.2d at 674; Fed. R. Civ. P. 65(b)(1)(A) (a temporary restraining order may issue only if 24 “specific facts in an affidavit or a verified complaint clearly show that immediate and 25 irreparable injury, loss, or damage will result . . . ”). Whether Pinson is provided 26 adequate face coverings is an issue raised in Pinson’s previously filed Motion for 27 Preliminary Injunction, which the Court addresses separately. (See Doc. 11.) The 28 pending Motion for TRO will be denied. See Center for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (th Cir. 2011) (because the plaintiffs failed to show they are likely to suffer irreparable harm in the absence of preliminary relief, the court need not address the | remaining elements of the preliminary injunction standard). 4 IT IS ORDERED that Plaintiff's Motion for Temporary Restraining Order (Doc. 5 | 62) is denied. 6 Dated this 30th day of November, 2020. 7 8 ff 9 tt fo) 10 MALE Honorable Rostsiary □□□□□□□ 11 United States District □□□□□□ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-