United States District Court, D. Arizona
ORDER
DAVID
G. CAMPBELL SENIOR 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 Second Motion for Injunctive
Relief. (Doc. 56.) Defendants Maricopa County, Maricopa
County Sheriff Paul Penzone, and Maricopa County
Sheriff's Office (MCSO) Deputy Don Marchand
(“County Defendants”) oppose the motion. The
motion has been fully briefed (Docs 58, 22), and will be
denied.
I.
Background
A.
Plaintiff's Complaint
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 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.)
B.
Plaintiff's Previous Motion for Injunctive
Relief
Plaintiff
previously filed a motion for injunctive relief in which he
sought a Court order directing County Defendants to permit
Plaintiff's counsel in this action, Mr. Borunda,
reasonable in-person attorney/client visits with Plaintiff at
the Fourth Avenue Jail. (Doc. 20.) According to Plaintiff,
because Mr. Borunda was not counsel of record in
Plaintiff's criminal case, Mr. Borunda was only permitted
to meet with Plaintiff via video conferencing or cell-side
visits, even though Mr. Borunda is hard of hearing and there
is no privacy or confidentiality in these types of visits.
(Id. at 4.)
The
Court denied this motion as moot based on County
Defendants' showing that Plaintiff had already obtained
the relief he sought. (Doc. 26.) County Defendants provided
the affidavit of MCSO Captain Vai that, as a Captain at the
Fourth Avenue Jail, his duties included “making
decisions about visitation requests with inmates.”
(Doc. 21-1 ¶ 2.) With respect to Mr. Borunda's
visits with Plaintiff, Captain Vail testified that he had
directed that “Mr. Borunda and Mr. Bueno shall have
access to the private interview room as long as usual
scheduling protocol is followed, the same as any other
attorney and client” and “[a]bsent some
unexpected emergency or demonstrated security concern, this
access will not be changed without prior approval of the
Court.” (Doc. 21-1 ¶ 10.)
The
Court concluded that Plaintiff's visitation issue had
been resolved and any fears Plaintiff had that he would not
be permitted in-person visits with counsel were merely
speculative and not a sufficient ground to obtain preliminary
injunctive relief. See Caribbean Marine Servs. Co. v.
Baldridge, 844 F.2d 668, 674 (9th 1988) (speculative
injury is not irreparable injury sufficient for a preliminary
injunction); Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008). “A plaintiff must do
more than merely allege imminent harm sufficient to establish
standing; a plaintiff must demonstrate immediate threatened
injury as a prerequisite to preliminary injunctive
relief.” Caribbean, 844 F.2d at 674 (internal
citations omitted). The Court stated that if Plaintiff's
counsel was again denied in-person visits with Plaintiff
absent a demonstrated security concern, it expected that
Plaintiff would renew his request for injunctive relief.
(Doc. 26 at 6.) Plaintiff has now filed a second motion in
which he seeks a preliminary injunction “compelling the
County Defendants to permit counsel to confer face to face
and in person with his client, Plaintiff Ramon Bueno.”
(Doc. 56 at 13.)
II.
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, 555 U.S. at 24 (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).
III.
Second Motion for ...