Ross v. Johnson ( 2023 )

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Jesse Aron Ross, Case No. 2:22-cv-00259-CDS-VCF 5 Plaintiff Order Renewing Preliminary Injunction for 30 days 6 v. 7 Calvin Johnson, et al., 8 Defendants 9 10 Incarcerated plaintiff Jesse Aron Ross brings this civil rights lawsuit based on the 11 defendants’ alleged denial of his outdoor exercise time at High Desert State Prison (HDSP). I 12 previously determined that Ross is entitled to preliminary injunctive relief. See Order Granting 13 Prelim. Inj., ECF No. 44. I have extended the injunction several times after finding a continued 14 need to do so. ECF Nos. 89, 108, 113, 123. I held a hearing on December 21, 2023, to hear 15 additional arguments regarding whether there was a need to further extend the preliminary 16 injunction. Min. of Proceedings, ECF No. 139. At the conclusion of the hearing, I took the matter 17 under advisement and permitted the parties to file supplemental information1 relevant to my 18 determination. Id. Having considered the arguments set forth by the parties, together with the 19 status reports and supplemental information provided to the court, I hereby extend the 20 injunction for another 30 days at which time the injunction will expire. 21 I. Legal Standard 22 I adopt and incorporate as if fully set forth herein the law regarding renewing 23 preliminary injunctions. See ECF No. 90 at 2–5. 24 25 26 1 Both parties filed supplemental reports. See ECF No. 140; ECF No. 141. 1 II. Discussion 2 As noted during the last three status hearings, there appears to be improvement in 3 providing Ross access to time out of his cell, including outdoor (yard), gym, and chapel time. 4 Compare ECF No. 11 (Ross asserting he had not received yard time for almost 60 days between 5 August and September 2022), and Yard Log, Pl.’s Ex. C, ECF No. 12 at 18–28 (Ross’s notes 6 showing long stretches of time without yard or gym time between July, September, and October 7 of 2022), with ECF No. 137 (Ross notating he was allotted between 8 and 24.9 hours of yard time 8 for March to November of 2023), ECF No. 121 (Joint Status Report showing that Ross was 9 offered yard time, tier time, shower & phone, law library time, and/or gym time with regularity 10 between August and October 2023), and ECF No. 130 (defendants’ status report showing that 11 Ross was offered yard time, tier time, shower & phone, law library time, and/or gym time with 12 regularity between October 2023 and December 2023). 13 The record in this case shows that HDSP has made considerable effort to address the 14 deprivation of adequate opportunity for Ross to exercise, and time outside of his cell, as required 15 by the Eight Amendment. The improvements to Ross’s access to yard time and other time 16 outside of his cell have occurred despite the continued staffing shortages and frequent 17 lockdowns. At the same time, I do not disagree with Ross that the prison falls short of 100% 18 compliance and that understaffing and lockdowns remain an issue. In fact, as argued by Ross 19 and not disputed by defendants during the December 21, 2023 status hearing, there has been a 20 recent uptick in lockdowns due to staffing shortages that are exacerbated by the holidays. 21 But, as the parties are aware, a mandatory injunction “orders a responsible party to ‘take 22 action.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) 23 (citation omitted). And because a mandatory injunction goes beyond maintaining the status 24 quo, this court must deny such relief “unless the facts and law clearly favor the moving party.” 25 Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979) (citations omitted) (emphasis added). I 26 issued an injunction in March of this year because, given the long periods of deprivation of outdoor time and facility lockdowns, Ross met his burden showing injunctive relief was warranted. See Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (explaining that Spain v. Procunier’s? approval of an order mandating outdoor exercise was based on “the cumulative effect 4|| of related prison conditions.”). Since then, the facts have shifted: Ross now has greater access to 5}| time outside of his cell, including yard time. Thus, in balancing the information now before the 6} court, I no longer can find that the facts and law favor Ross in continuing the injunction another 7|| 90 days. However, given the agreement that there has been an increase in lockdowns during the 8|| holidays, immediate dissolution of the injunction is not warranted. Rather, the injunction will remain intact for an additional 30 days, at which time it will expire. I find that the 30-day 10]] extension comports with this circuit’s standards for the need, narrowness, and intrusiveness of injunctive relief under the Prison Litigation Reform Act, but also recognizes the material 12|| improvements at HDSP to address the issue for which Ross initially brought the motion for 13} injunctive relief. Accordingly, the preliminary injunction (ECF No. 44) is extended for another 14]| 30 days. TI. Conclusion 16 IT IS THEREFORE ORDERED that the injunctive relief ordered in the March 3, 2023, order [ECF No. 44] is RENEWED and extended for 30 days. □ 18 DATED: December 27, 2023 /, 19 LG, — 20 Cristi a. Silva 51 Unité States District Judge 22 23 24 25 26 2 600 F.2d 189, 199 (9th Cir. 1979).