Opinion
Case No. 2:20-cv-00362-SB
04-16-2020
LANCE CONWAY WOOD, Plaintiff, v. SUE WASHBURN, Superintendent of Eastern Oregon Correctional Institution ("EOCI"), et al., Defendants.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Plaintiff Lance Conway Wood ("Wood"), a Utah state prisoner confined at the Eastern Oregon Correctional Institution ("EOCI"), brings this civil rights action pursuant to 42 U.S.C. § 1983 against EOCI Superintendent Sue Washburn ("Washburn"), Oregon Department of Corrections ("ODOC") Assistant Inspector General Melissa Nofziger ("Nofziger"), ODOC Inspector Jerry Plant ("Plant"), and EOCI Hearings Officer Heather Nevil ("Nevil") (together, "Defendants"). Pl.'s Compl. (ECF No. 1) at 2. Wood alleges that Defendants retaliated against him for exercising his right of access to the courts and deprived him of due process during his disciplinary proceeding. Id. at 2-3, 12. Currently before the Court is Wood's Motion for Temporary Restraining Order ("TRO") and Preliminary Injunctive ("PI") Relief (ECF No. 7). For the reasons set forth below, the district judge should DENY Wood's TRO motion and defer ruling on his PI motion.
BACKGROUND
Wood alleges that on October 21, 2019, a correctional officer required him to provide a urine sample, another inmate collected the urine sample, and Wood's sample was contaminated by the urine of another inmate who was taking the medication Tramadol. Compl. at 4-6, Wood Decl. (ECF No. 8) at 1-2 & Ex. A. On November 6, 2019, Wood's urine sample tested positive for Tramadol. Compl. at 6, Wood Decl. at 3. That same day, Wood was terminated from his legal clerk position at the prison library. Compl. at 3, Wood Decl. at 8.
The following day, Wood received a misconduct report that allegedly misstated the facts and charged him with Contraband I and Disobeying a Direct Order. Compl. at 6, Wood Decl. at 3 & Ex. D. On November 11, 2019, Nevil commenced a disciplinary hearing, but subsequently stayed the proceeding to allow an investigation into the collection of Wood's urine sample. Compl. at 7, Wood Decl. at 5 & Ex. D. Plant conducted the investigation, reviewed video footage of the urine collection, and told Wood that although "there was a problem with another prisoner handling [the] urine sample, he found no foul in the process." Compl. at 7, Wood Decl. at 5-6. On December 3, 2019, Nevil reconvened the disciplinary hearing, denied Wood's request to examine the evidence, and found Wood guilty of Contraband I. Compl. at 8, 12, Wood Decl. at 6. Nevil imposed sanctions of twenty-eight days in segregation, fourteen days loss of privileges, a fine, and the reduction of Wood's "incentive level" from three to one. Compl. at 8, Wood Decl. at 6. Wood contends that the sanction was harsher than those imposed on other prisoners. Compl. at 8, Wood Decl. at 6 & Ex. F. Washburn and Nofziger affirmed his conviction on administrative review. Compl. at 9, Wood Decl. at 7 & Ex. D.
The Oregon Department of Corrections has "tiered access to services and privileges at department facilities" and three incentive levels that govern inmate access to those services and privileges. OR. ADMIN. R. 291-077-0035. "Incentive Level 1 is a restricted level statewide," but the "[r]estrictions imposed may differ between facilities due to the size and configuration of each facility." OR. ADMIN. R. 291-077-0035(1)(e). --------
Wood alleges that Defendants knew that the misconduct report was inaccurate and that his urine sample was collected by an inmate in violation of the Oregon Administrative Rules. Compl. at 9, 12, Wood Decl. at 7-8. He contends that Defendants disregarded the facts in order to justify the termination of his job, to prevent him from assisting prisoners with litigation, chill his intention to file a class action, and cover up the fact that an inmate was collecting urine samples. Compl. at 10-12, Wood Decl. at 9 & Ex. L. Wood alleges that he "continues to suffer hardships in the restriction of events, earned wages, availability to certain jobs, activities, and programming." Compl. at 13.
Wood alleges two claims for relief: (1) retaliation for exercising his right of access to the courts, and (2) the denial of due process at his disciplinary proceeding. Id. at 2-3, 12. Wood moves for a temporary restraining order "pending a hearing to determine whether the District Court should enter a permanent preliminary injunction ordering" Defendants to reinstate him as a legal clerk, compensate him for lost wages, and reinstate his incentive level three. Pl.'s Mot. for TRO at 1-2. Wood argues that in the absence of injunctive relief he will suffer irreparable harm because "Defendants['] retaliatory removal of Plaintiff as legal clerk and reclassification to a level 1 from a level 3, shall have long term consequences." Id. at 11. He argues that Defendants "will continue to have a chilling effect upon [him]" and they "have shown that they will continue to retaliate against [him]." Id. at 11-12. ///
STANDARDS
This Court "may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(1).
A plaintiff seeking a preliminary injunction must establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in his favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015); Ass'n des Eleveurs de Canards et d'oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013). In the Ninth Circuit, a plaintiff may also obtain injunctive relief if there are serious questions going to the merits, the balance of hardships tip sharply toward the plaintiff, and the remaining two Winter factors are satisfied. A Woman's Friend Pregnancy Res. Clinic v. Becerra, No. 15-17517, 2018 WL 4090700, at *1 (9th Cir. 2018). Where, as here, the plaintiff seeks a mandatory injunction which goes beyond maintaining the status quo, he must demonstrate that the facts and law clearly favor an injunction. Garcia, 786 F.3d at 740; see also Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1173 (9th Cir. 2015) (mandatory injunctions are disfavored and will not be entered in doubtful cases).
DISCUSSION
Wood has failed to make the necessary showing for a temporary restraining order. First, he has failed to demonstrate that he will suffer "immediate and irreparable injury, loss, or damage" before Defendants can be heard in opposition. See Fed. R. Civ. P. 65(b)(1)(A). Specifically, Wood has not alleged any irreparable harm that will result if he is not immediately reinstated to his legal clerk job or his prior privilege level, nor has he alleged any facts to support his assertion that Defendants will continue to retaliate against him absent a restraining order.
Second, Wood has also failed to certify "in writing any efforts made to give notice and the reasons why it should not be required." See Fed. R. Civ. P. 65(b)(1)(B). Although Wood's motion includes a certificate of service on Assistant Attorney General Shannon Vincent, the record does not reflect that the Oregon Department of Justice has agreed to represent the individual defendants in this proceeding. Wood has not certified that he made any effort to provide notice of his motion to the individual defendants.
With respect to his request for preliminary injunctive relief, Rule 65 requires that the "court may issue a preliminary injunction only on notice to the adverse party." Fed. R. Civ. P. 65(a)(1). Accordingly, the Court recommends that the district judge defer ruling on Wood's motion with respect to his request for preliminary injunctive relief, and order Defendants to respond to Wood's motion within fourteen days of Defendants' (anticipated) waiver of service. See, e.g., Snail Games USA, Inc. v. Virtual Basement LLC, CV 18-8290-DMG (Ex), 2018 WL 6184777, at *1 (C.D. Cal. Oct. 3, 2018) ("[T]he Court DENIES Plaintiff's Ex Parte Application to the extent it seeks a TRO, DEFERS ruling on the Ex Parte Application insofar as it seeks a preliminary injunction, and sets a briefing schedule thereon.").
CONCLUSION
Based on the foregoing, the district judge should DENY Wood's Motion for a Temporary Restraining Order (ECF No. 7), defer ruling on Wood's request for preliminary injunctive relief, and order Defendants to respond to Wood's request for a preliminary injunction within fourteen days of Defendants' waiver of service.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 16th day of April, 2020.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge