United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
Joseph Brummer, who is currently confined in the Arizona
State Prison Complex (ASPC)-Eyman, Browning Unit, has filed a
pro se civil rights Complaint pursuant to 42 U.S.C. §
1983. Before the Court is Plaintiff's Motion for
Preliminary Relief and Order (Doc. 9), which the Court
construes as a motion for injunctive relief. The Court will
deny the motion.
sued Defendants Arizona Department of Corrections (ADC)
Director Charles L. Ryan; Special Services Unit (SSU)
Correctional Officer Figueroa; ASPC-Tucson Deputy Wardens A.
Jacobs, D. Stemple, and J. Mattos; and ADC Security
Operations Administrator Ron Towles for violating his due
process rights. Plaintiff alleges the following facts:
Plaintiff was validated as a member of the Aryan Brotherhood
in 2009 and confined in Security Threat Group (STG) maximum
custody. Plaintiff subsequently completed the STG step down
program (SDP) and was placed in a close custody unit, with a
lower custody level. In September 2017, Defendant Figueroa
informed Plaintiff that his close custody status was being
revoked, but refused to give Plaintiff the required form. A
hearing was held before Defendants Jacobs, Stemple, and
Mattos on October 5, 2017, and Plaintiffs' close custody
status was revoked. Plaintiff was not given a copy of the
hearing notification, informed of the evidence against him,
or provided with a written result of the hearing. Plaintiff
appealed the revocation to Defendants Towles and Ryan, and
they denied his appeals. As a result, Plaintiff was returned
to maximum custody. On screening pursuant to 28 U.S.C.
1915A(a), the Court determined that Plaintiff stated a due
process claim against Defendants and ordered them to answer.
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. It requires that any injunctive
relief be narrowly drawn and the least intrusive means
necessary to correct the harm be imposed. 18 U.S.C. §
3626(a)(2); see Gilmore v. People of the State of
Cal., 220 F.3d 987, 999 (9th Cir. 2000).
the Fourteenth Amendment's Due Process Clause, a prisoner
is entitled to certain due process protections when he is
charged with a disciplinary violation.” Serrano v.
Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (citing
Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974)).
“Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply.”
Wolff, 418 U.S. at 555-56. To determine whether a
procedural due process violation has occurred, a court
engages in a two-step analysis. First, a court looks to
whether the person possesses a constitutionally-cognizable
liberty interest with which the state has interfered.
Sandin v. Conner, 515 U.S. 472, 485-87 (1995).
Second, if the state has interfered with a liberty interest,
a court looks to whether this interference was accompanied by
sufficient procedural and evidentiary safeguards. Ky.
Dep't of Corr. v. Thompson, 490 U.S. 454, 460
well-settled that placement in maximum security segregation
units implicates a liberty interest requiring due process
protections. Wilkinson v. Austin, 545 U.S. 209, 224
(2005). A prisoner may be deprived of his liberty interest as
long as he is accorded the proper procedural protections. For
the initial decision to place a prisoner in maximum custody,
due process is generally satisfied if the prisoner is given
notice of the factual basis for the placement and an
opportunity to be heard. Id. at 225-27; Hewitt
v. Helms, 459 U.S. 460, 476 (1983).
Motion for Preliminary Injunction