Opinion
2:19-cv-00722-JAD-NJK
08-02-2021
DAVID BURNS, Plaintiff, v. M.D. HANF, et al., Defendants.
REPORT AND RECOMMENDATION [DOCKET NO. 27]
Nancy J. Koppe United States Magistrate Judge
Pending before the Court is Plaintiff's motion for a preliminary injunction. Docket No. 27. The Court has considered Plaintiff's motion, Defendants' response, and Plaintiff's reply. Docket Nos. 27, 29, 30. The motion is properly resolved without a hearing. See LR 78-1.
On October 28, 2020, the Court issued a screening order permitting Plaintiff to proceed with an Eighth Amendment claim against Defendants Dr. Wolf, Pillsbury, Martin, and Dr. Hanf. Docket No. 9 at 6. The Court found that Plaintiff stated a colorable claim for deliberate indifference to serious medical needs based on his allegations that Defendants knew he had a fractured finger and failed to treat his fractured finger. Id. Plaintiff now seeks a preliminary injunction in the form of a Court order directing Defendants to provide him with surgery on his fractured finger. Docket No. 27 at 1.
“When moving for a preliminary injunction . . . the plaintiff must make several showings: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; (3) the equities balance in his favor; and (4) an injunction is in the public interest.” Thomas v. Cox, 2018 WL 5904499, at *1 (D. Nev. Oct. 24, 2018) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). In the Ninth Circuit, courts apply a “sliding scale approach, ” where “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Further, “a more stringent standard applies where a party seeks affirmative relief.” Odoms v. Aranas, 2017 WL 3317416, at *2 (D. Nev. Aug. 3, 2017). “[M]andatory preliminary relief is only warranted where both the facts and the law clearly favor the moving party and ‘extreme or very serious damage will result.'” Thomas, 2018 WL 5904499, at *1 (quoting Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979)).
In the instant motion, Plaintiff dedicates much of his argument to discussing the elements of an Eighth Amendment claim. See Docket No. 27 at 1-2. In so doing, Plaintiff submits that a likelihood that his constitutional rights are violated is sufficient to establish the irreparable harm element for a preliminary injunction. Id. at 2. Plaintiffs motion, however, fails to discuss the remaining elements for a preliminary injunction. Further, Plaintiffs motion fails to establish whether a preliminary injunction is appropriate in light of the more stringent standard that applies when seeking affirmative injunctive relief. Courts only address well-developed legal arguments. See, e.g., Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013).
In reply, Plaintiff, for the first time, raises arguments regarding the remaining elements for a preliminary injunction. See Docket No. 30 at 2-3. It is improper to raise arguments for the first time in a reply brief because the timing of the argument deprives the opposing party of the opportunity to respond. See, e.g., Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996).
Accordingly, IT IS RECOMMENDED that Plaintiffs motion for a preliminary injunction, Docket No. 27, be DENIED without prejudice.
NOTICE
This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation must file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).