Bueno v. Chang

          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 ...