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Bueno v. Chang

United States District Court, D. Arizona

October 12, 2017

Ramon Luna Bueno, Plaintiff,
v.
J. Chang, et al., Defendants.

          ORDER

          David G. Campbell, United States District Judge.

         Plaintiff Ramon Luna Bueno, who is confined in the Maricopa County Fourth Avenue Jail, has filed, through counsel, a civil rights Complaint pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's Motion for Injunctive Relief. (Doc. 20.) Defendants Maricopa County and Maricopa County Sheriff's Office (MCSO) Deputy Don Marchand oppose the motion. The motion has been fully briefed. (Docs. 21, 22.) The Court will deny the motion.

         I. Background

         On screening of Plaintiff's seven-count First Amended Complaint, the Court found that Plaintiff stated state law tort claims against a number of City of Phoenix Police Department employees (“City Defendants”) in Count Two; Fourth, Fifth, and Fourteenth Amendment excessive use of force claims against City Defendants in Count Four; Fourth, Fifth, and Fourteenth Amendment medical care claims against Maricopa County and a number of Maricopa County employees (“County Defendants”) in Count Five; and Fourth, Fifth, and Fourteenth Amendment right to counsel claims against County Defendants in Count Six and ordered these Defendants to answer the claims against them. (Doc. 25.) The Court dismissed the remaining claims and Defendants. (Id.)

         II. Motion for Injunctive Relief

         In his Motion for Injunctive Relief, Plaintiff seeks “a preliminary injunction directing the County Defendants to permit undersigned counsel reasonable in-person visitation with Plaintiff.” (Doc. 20 at 1-2.)

         Plaintiff alleges that County Defendants have denied him access to counsel on a number of occasions. (Id. at 2.) In particular, on October 10, 14, and 23, 2015, when counsel Jimmy Borunda first began to meet with Plaintiff regarding potential representation in this action, County Defendants did not permit Mr. Borunda to use the attorney/client legal visitation room, but instead allowed him only cell-side visits with Plaintiff because Mr. Borunda was not “counsel of record” in Plaintiff's criminal case. (Id. at 3.) On October 28, 2015, Mr. Borunda received a call from Captain Scott Vail, who explained that, upon orders of Jail Commander Don Marchand, Mr. Borunda could only meet with Plaintiff via video conferencing or cell-side visits, even though Mr. Borunda explained he was hard of hearing in his right ear, he had difficulty hearing Plaintiff, and there was no privacy or confidentiality in these types of visits. (Id. at 4.)

         Over the next several months, Mr. Borunda wrote to both Captain Vail and Commander Marchand about these issues and complained about the difficulty of establishing “an atmosphere of personal trust” with Plaintiff without in-person visits. (Id.) In response, Marchand called Mr. Borunda and accused him of sending duplicative email and phone messages and attempting to trick Marchand into responding in writing. (Id.) He told Mr. Borunda to “take him to court” because his position regarding in-person visits was not going to change. (Id.)

         After Plaintiff filed this action on October 8, 2016, and MCSO came under a new administration, Mr. Borunda again went to the Fourth Avenue Jail to attempt to visit with Plaintiff on August 13, 2017. (Id. at 5.) At that time, Mr. Borunda was escorted to the legal visitation room, but then told by Sergeant Heino that he would only be able to meet with Plaintiff cell-side. (Id.) The visitation slip generated that day sates: “Per Sgt. Brown Attny Mr. Borunda can not [sic] use legal room 4 visits.” (Id., Doc. 20-2 at 2.) As of the time he filed this motion, Mr. Borunda still had not been able to visit with Plaintiff as requested. (Doc. 20 at 5.) Plaintiff seeks injunctive relief and attorneys' fees. (Id. at 10-11.)

         III. Legal Standards

         “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.'” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor, ' and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072.

         Regardless of which standard applies, the movant “has the burden of proof on each element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted “unless the facts and law clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).

         The Prison Litigation Reform Act imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials and requires that any injunctive relief be narrowly drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).

         IV. ...


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