Free Order on Motion for Preliminary Injunction - District Court of Arizona - Arizona

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TCK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Albert DeLeon, Plaintiff, vs. Dora Schriro, et al.,

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Defendants.
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No. CV 04-446-PHX-PGR (MS) ORDER

Pending before the court is Plaintiff's Emergency Motion For Injunctive Relief (Doc. #129-1); Emergency Issuance of TRO (Doc. #129-2) and Motion For Accelerated Hearing and Accelerated Issuance of TRO (Doc. #129-3), filed on June 20, 2005. I. Background Plaintiff filed a pro se Civil Rights Complaint by a Prisoner (Doc. #1) on March 3, 2004. The Court screened the Complaint and dismissed Counts II and V See Doc.#3. The Court ordered service upon Defendants Schriro, Jones, Macbuhay, Montano, Peterson and Sloan. On October 22, 2004, the Court granted Plaintiff's Motion to file a Second Amended Complaint, adding Defendants Ramon, Avalas, Paradez, Vinluan and Reyna (Doc. #77). Plaintiff filed a Second Amended Complaint (Doc. #78). In his Second Amended Complaint, Plaintiff alleges, inter alia, that he is permanently disabled. Plaintiff contends that Defendants have retaliated against him by
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denying him access to orthopedic shoes and cane, as well as denying him other rehabilitative measures. Plaintiff also contends that he was abused and assaulted. He further alleges that Defendants were deliberately indifferent to his medical needs when they failed to provide rehabilitation following his heart attack and that Defendants have subjected him to cruel and unusual punishment by denying him medical care. Plaintiff further alleges that he sustained an accident in a wheelchair, which caused him injuries and required repairs on the wheelchair. Plaintiff contends that the Defendants refused to properly repair the wheelchair Plaintiff further contends that the wheelchair is not useable in all areas of the Department of Corrrections where he is housed. On June 20, 2005, Plaintiff filed an Emergency Motion For Injunctive Relief (Doc. #129-1); Emergency Issuance of TRO (Doc. #129-2) and Motion For Accelerated Hearing and Accelerated Issuance of TRO (Doc. #129-3), filed on June 20, 2005. On June 23, 2005, Defendants filed a Response (Doc. #130). On June 29, 2005, Plaintiff has filed a Reply (Doc. #133). II. Discussion In his motion, Plaintiff alleges that he is an ADA wheelchair bound inmate who has been placed in Protective Segregation status. Plaintiff alleges that ADOC has notified him that all Protective Segregation Inmates are being moved from the Lewis Complex. Plaintiff contends that he was forced to sign a waiver allowing his security score to be raised from a Level 1 minimum to Level five maximum security unit. Plaintiff alleges that Defendant Velasquez advised him that if he did not sign the waiver, he would be required to forfeit his wheelchair. Plaintiff seeks an order requiring the Court to prevent Defendants from removing his wheelchair and to allow him to remain in a Level one custody unit. See Doc.#129. Defendants argue in their response that Plaintiff has mis-stated the facts and Plaintiff has failed to establish that he is subject to immediate or irreparable harm. A. Standard For Injunctive Relief

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The purpose of a preliminary injunction is to preserve the status quo among the parties pending the outcome of the action. Regents of the University of California v. A.B.C., Inc., 747 F.2d 511, 514 (9th Cir. 1984). "To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the movant's] favor." Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990) (citation omitted). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Id. The movant is required to demonstrate a significant threat of irreparable injury under either formulation. See AGCC v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991). A preliminary injunction is an extraordinary remedy and will not be granted absent a clear showing of likely success in the underlying claim and possible irreparable injury. See Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 1867 (1997) ("It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-30 (2d ed. 1995)). First, this Court does not have jurisdiction over Plaintiff's motion because it relates to matters not alleged in the Complaint. The party seeking an injunction "must necessarily establish a relationship between the injury claimed in the motion and the conduct asserted in the complaint." Devose v. Herrington , 42 F.3d 470, 471 (8th Cir. 1994). In other words, a plaintiff must seek injunctive relief related to the merits of his underlying claim. See id. Plaintiff's current motion seeks injunctive relief preventing ADOC from housing Plaintiff in a particular unit at a particular classification level. Plaintiff's Complaint does not raise this issue. Thus, no action has been commenced that would allow the Court to enter injunctive relief.
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Second, based on the information in the motion and response, the Court finds that Plaintiff has not satisfied the standards for a preliminary injunction. Plaintiff claims that ADOC officials have threatened to make him sign a waiver which will send him to a level five unit or he will be forced him to give up his wheelchair. He presents no evidence,

other than his own speculation. Absent any evidence of such a connection, Plaintiff has not demonstrated a likelihood of success on the merits of his underlying claims. Defendants' evidence shows that Plaintiff's entire unit was moved to another facility in Arizona and the only ADA appropriate facility available to meet Plaintiff's needs is Rast Unit, a level 4 facility (Affidavit of Deputy Warden Edwards at 2). Defendants' evidence also suggests that CO III Velasquez approached Plaintiff, and asked that he waive the classification process solely for the purpose of his anticipated move to Rast Unit, a level 4 ADA facility equipped for wheelchair use. (Affidavit of Velasquez at 2). Plaintiff refused to waive, requiring that the classification process formally proceed. During the classification meeting, Velasquez advised Plaintiff of the lack of ADA housing at other units where inmates from his unit were being transferred and advised Plaintiff that he would need to obtain medical approval if it was his desire to be placed in a non wheelchair facility (Id. at 6). Velasquez then submitted paperwork to have Plaintiff seen by ADOC medical staff to determine if Plaintiff could be housed in a nonwheelchair equipped facility (Id. at 7). Plaintiff saw medical staff on Monday March 13, 2005, and Plaintiff was told that he would be required to be housed in a wheelchair equipped facility (Id. at 8). On June 15, 2005, Plaintiff's reclassification, which would permit that he be placed in the Rast Unit once an appropriate bed space became available, was completed (Id. at 2). Finally, Plaintiff has failed to present evidence demonstrating that he faces a significant threat of irreparable injury. Defendants have presented evidence that they have taken the proper steps to assure that Plaintiff is housed in an environment which is best equipped to meet his medical needs. For the reasons stated herein, Plaintiff's

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Emergency Motion For Injunctive Relief (Doc. #129-1) and Emergency Motion or Issuance of TRO (Doc. #129-2) will be denied. III. Motion to Set a Hearing Plaintiff requests that the Court set a hearing (Doc. #129-3) to allow him to present evidence and testimony in support of his motion. Plaintiff does not explain in the motions what evidence and testimony he would present, nor does he explain why it could not be presented through affidavits submitted with the motion. Plaintiff has not demonstrated that a hearing is necessary to resolve the motion and therefore his request will be denied. IT IS THEREFORE ORDERED: That Plaintiff's Emergency Motion For Injunctive Relief (Doc. #129-1); Emergency Issuance of TRO and Plaintiff's Motion For Accelerated Hearing and Accelerated Issuance of TRO (Doc. #129-3), filed on June 20, 2005 (Doc. #129) (Doc. #129-2) are DENIED. DATED this 6th day of March, 2006.

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