United States District Court, D. Arizona
G. Campbell, United States District Judge.
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.
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.
Motion for Injunctive Relief
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.)
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.)
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.
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
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.
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)
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).