1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 JAMES ANTHONY DAVIS, Case No. 2:22-cv-01796-RFB-DJA

8 Plaintiff, ORDER

9 v.

10 MICHAEL MINEV, et al.,

11 Defendants.

12 13 Before the Court is Plaintiff James Anthony Davis’ Motion for a Temporary Restraining 14 Order (“TRO”) (ECF No. 66) and Motion for a Preliminary Injunction (ECF No. 67). For the 15 following reasons, the Court grants the Motion for a TRO and defers ruling on the Motion for a 16 Preliminary Injunction. 17 18 I. FACTUAL BACKGROUND 19 Mr. Davis filed this U.S.C. 42 § 1983 action against Nevada Department of Corrections 20 (“NDOC”) prison officials and medical providers for deliberate indifference to serious medical 21 needs. He has two serious medical issues dating back to at least 2019. 22 First, Mr. Davis has a prostate condition which necessitated a series of surgeries that were 23 done while he was in custody in May through July of 2021. The surgeries left him with a 24 colostomy. Mr. Davis alleges Defendants have been deliberately indifferent to his aftercare by 25 failing to schedule a surgery to reverse the colostomy, leaving him with a stoma that is 26 repeatedly infected, requiring him to continue to use a colostomy bag, and causing pain. 27 Second, Mr. Davis has a painful, potentially cancerous breast lump for which multiple 28 providers have recommended or requested biopsies, MRIs and/or CT scans, which have been 1 denied by NDOC’s utilization review committee. 2 After this lawsuit was filed, screened, and stayed for Early Inmate Mediation, Mr. Davis 3 was released on parole on December 6, 2023. In June 2024, Mr. Davis was arrested for an 4 alleged offense and parole violation. His matter was resolved in state court around September 25, 5 2024 and he received credit for time served. Around that time he was brought back into NDOC 6 custody at High Desert State Prison (HDSP) for a parole violation hearing. On November 19, 7 2024, his parole was revoked, and he does not have another hearing until November of 2025. 8 Since reincarceration, his medical issues have become more severe: he is suffering pain 9 and bleeding relating to his prostate and stoma and chest pains related to his breast lump. After 10 he relayed these conditions, Plaintiff’s counsel met and conferred with the Attorney General, 11 who represents the Defendants in this matter. The AG promptly notified medical personnel at 12 HDSP. On November 4, 2024, he was transported to the hospital, admitted for two days, and 13 discharged. His medical records indicate the medical providers found a gynecomastia 14 (enlargement of breast tissue). They recommended a have a follow-up appointment within two 15 weeks and a mammogram. No follow up appointment has occurred. 16 On December 18, 2024, Mr. Davis was brought to the emergency room by ambulance, 17 while suffering from abdominal pain, nausea, and vomiting. Testing revealed "prominent 18 enlargement" of Mr. Davis' prostate gland. 19 In January of 2025, Mr. Davis was transferred to Northern Nevada Correctional Center 20 (“NNCC”) where he is currently housed. Since there, he has not been provided sufficient 21 colostomy bags. He suffers from severe diarrhea and abdominal symptoms which require his bag 22 be changed more often. His NDOC medical records state he is supposed to receive ten bags per 23 month according to "standard protocol." Mr. Davis indicates he has only been receiving a few 24 bags per month. His medical records from NNCC do not state he has any "Keep on Person" bags 25 and indicate he has only received a few bags in instances of suffering bleeding and severe 26 diarrhea. 27 On February 21, 2025 the AG represented to Mr. Davis' counsel that he "received 28 supplies and is scheduled to pick up more." However, Mr. Davis reports that between February 1 7, 2025 and March 19, 2025, he has only received a few bags, and has been forced to borrow 2 colostomy bags from other inmates. 3 On March 17, 2025, Davis reports he was seen by a doctor at Carson Tahoe Urology, 4 who expressed concern over his enlarged prostate and recommended a follow up appointment 5 within four weeks. 6 Davis finally received an allotment of eight bags on March 20-21, 2025, following 7 counsel's discussion with the AG regarding the lack of bags. Davis reports that the rings on these 8 new bags, which are supposed to fit his stoma, are cut too large, causing cause his waste to leak. 9 10 I. RELEVANT PROCEDURAL HISTORY 11 On October 26, 2022, Plaintiff Davis commenced this action by filing a Motion to 12 Proceed in forma pauperis with an attached complaint. (ECF No. 1). On December 1, 2024, 13 Plaintiff filed a Motion for Preliminary Injunction. (ECF No. 5). On January 4, 2023, Plaintiff 14 filed a Motion for Appointment of counsel. On January 12, 2023, Mr. Davis’ Motion for 15 Appointment of Counsel was granted, and his Motion for Preliminary Injunction was denied 16 without prejudice. (ECF No. 7). On January 26, 2024, counsel for Mr. Davis appeared on his 17 behalf. (ECF No. 8). On June 2, 2023, Mr. Davis filed his First Amended Complaint. (ECF No. 18 14). On July 3, 2023, his complaint was screened and allowed to proceed. (ECF No. 15). On 19 February 5, 2024, Mr. Davis was granted leave to proceed in forma pauperis. (ECF No. 28). On 20 February 26, 2024, the AG’s office filed a Notice of Acceptance of service on the Defendants 21 behalf. (ECF No. 29). On April 6, 2024, Defendants filed their answer to Plaintiff’s First 22 Amended Complaint. (ECF No. 32). 23 On March 24, 2025, Mr. Davis filed the instant Motions for a Temporary Restraining 24 Order and for a Preliminary Injunction. (ECF Nos. 66-67). 25 26 II. LEGAL STANDARD 27 A party seeking injunctive relief must show the following: (1) that he is likely to succeed 28 on the merits; (2) that he is likely to suffer irreparable harm without the injunction; (3) that the 1 balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. 2 National Resources Defense Council, Inc.,

(2008). The legal standards applicable 3 to a temporary restraining order is substantially identical.” Stuhlbarg Int'l Sales Co., Inc. v. John 4 D. Brush & Co., Inc.,

, 839 n.7 (9th Cir. 2001). The Ninth Circuit recognizes a 5 “sliding scale” variant of the Winter standard where a strong showing of one factor can offset a 6 weaker showing of another factor. Alliance for Wild Rockies v. Cottrell,

, 1131 7 (9th Cir. 2011). 8 Accordingly, in the Ninth Circuit, a preliminary injunction may still be granted if the 9 plaintiff can show: (1) that there are “serious questions going to the merits”; (2) the balance of 10 hardships tips sharply toward the plaintiff; and (3) the last two Winter factors are met. Fraihat v. 11 U.S. Immigration & Customs Enforcement,

(9th Cir. 2021). A “serious 12 question” is one on which the movant “has a fair chance of success on the merits.” Sierra On- 13 Line, Inc. v. Phoenix Software, Inc.,

(9th Cir. 1984). 14 Rule 65 provides that the Court may issue a temporary restraining order where the moving 15 party provides a sworn statement clearly showing “that immediate and irreparable injury, loss, or 16 damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. 17 Civ. Proc. 65(b)(1). A temporary restraining order must expire within fourteen days, and the 18 Court must set a motion for preliminary injunction hearing at the earliest possible time.

19 Ordinarily, a party seeking injunctive relief must post security in the amount required to 20 pay damages sustained by a wrongfully enjoined party; however, the court may, in its discretion, 21 waive this requirement. Fed. R. Civ. Proc 65(c). See also, Johnson v. Couturier,

, 22 1086 (9th Cir. 2009). 23 24 III. DISCUSSION 25 The Court finds that the requirements for issuing a TRO without an opportunity for 26 Defendants to be heard are satisfied, as Mr. Davis currently has not been provided adequate 27 colostomy bags and as a result waste is leaking from the bag, creating a serious risk of infection 28 and related severe health complications. The Court finds that immediate and irreparable injury 1 could result if Mr. Davis is not immediately provided adequate colostomy bags. 2 Additionally, Mr. Davis’ counsel has provided an affidavit detailing his efforts to 3 communicate the issue of the colostomy bag with the Attorney General. The AG has responded 4 promptly and made an effort to notify NDOC of the issue, however, Mr. Davis reports that the 5 colostomy bags provided are not cut correctly and therefore lead to waste leaking. Accordingly 6 the Corut finds Mr. Davis has established why Defendants should not be provided an opportunity 7 to be heard before the Court grants preliminary relief as to the colostomy bag. 8 The Court further waives the requirement that Mr. Davis post security, because there is no 9 risk that NDOC will be harmed by providing medically appropriate colostomy bags to him, and 10 Mr. Davis has been found indigent in this case and cannot afford to post a bond. 11 The Court does not find, however, that Mr. Davis has established a TRO should be granted 12 without hearing as to his follow-up appointments regarding his prostate condition and enlarged 13 breast tissue. The record indicates follow up appointments are recommended within several 14 weeks. Therefore, Mr. Davis has not established immediate and irreparable injury regarding that 15 medical treatment sufficient to warrant a TRO without a preliminary injunction hearing. The 16 Court therefore defers ruling on Mr. Davis’ other requested relief and sets this matter for hearing 17 at the earliest possible time on April 8, 2025. 18 The Court also finds that Mr. Davis has established the four Winter factors with respect to 19 the provision of colostomy bags. Mr. Davis has established a likelihood of success on the merits 20 of his deliberate medical indifference claim. To prevail on a claim for deliberate medical 21 indifference, a prisoner must first show a “serious medical need” by demonstrating that failure to 22 treat the injury or condition could result in further significant injury or the “unnecessary and 23 wanton infliction of pain. McGuckin v. Smith,

(9th Cir. 1991), overruled on 24 other grounds by WMX Techs., Inc. v. Miller,

(9th Cir. 1997) (en banc). Second, 25 he must show that the defendant’s response to the medical need was deliberately indifferent. Id. 26 at 1060. The second prong is satisfied by showing that the prison official knowingly disregarded 27 an excessive risk to a prisoner’s health. Peralta v. Dillard,

(9th Cir. 2014) 28 (en banc). Specifically, a plaintiff must show that the course of treatment the defendant(s) chose 1 was medically unacceptable under the circumstances and that the defendant(s) chose this course 2 in conscious disregard for an excessive risk to a plaintiff’s health. Hamby v. Hammond,

1085, 1092 (9th Cir. 2016) (citation and internal quotation marks omitted). 4 Mr. Davis has serious medical needs arising from his prostate, stoma, and colostomy bag 5 which have necessitated multiple trips to the hospital and emergency room since November 6 2023. As a result, the alleged delay in care provided by NDOC, Mr. Davis still requires a 7 colostomy bag, which needs to be regularly changed due to his stoma, to avoid infection. NDOC 8 has recognized he should be provided at least 10 bags per month. The Court further finds that 9 Defendants conduct could amount to deliberate indifference. Mr. Davis has not received the ten 10 bags, and the bags he has received have been cut incorrectly so that waste leaks from them, 11 risking serious infection and related severe medical complications. 12 For the reasons described above the Court finds Mr. Davis will suffer immediate and 13 irreparable harm in the absence of preliminary relief. Finally, the court holds that the balance of 14 hardships weighs heavily in favor of plaintiff, as NDOC will not be harmed by being ordered to 15 provide constitutionally mandated care for Mr. Davis. Moreover, the public interest weighs in 16 favor of prompt and constitutionally adequate medical care. 17 18 IV. CONCLUSION 19 The Court, having considered Plaintiff Davis’ Motion for a Temporary Restraining Order 20 and the documents in support thereof, including the declaration of Plaintiff’s counsel Ryan 21 Norwood, holds as follows: 22 IT IS ORDERED that Plaintiff’s Motion for a Preliminary Injunction (ECF No. 67) is 23 DEFERRED. 24 IT IS FURTHER ORDERED that Plaintiff’s Motion for a Temporary Restraining Order 25 (ECF No. 66) is GRANTED in part. IT IS ORDERED that Defendants provide Mr. Davis with 26 at least ten colostomy bags for the current month which are cut adequately to fit Mr. Davis’ 27 stoma and prevent any leaking. This Order will expire on April 8, 2025. 28 IT IS FURTHER ORDERED that Defendants shall file a response to the instant Motion for Preliminary Injunction by April 1, 2025. Plaintiff shall file a reply by April 5, 2025. 2 IT IS FURTHER ORDERED that the parties shall appear on April 8, 2025, at 8:00 a.m. in courtroom 7C before the Honorable Richard F. Boulware, II for a hearing to show cause why 4; an order should not be issued pursuant to Rule 65(a) of the Federal Rules of Procedure 5 | preliminarily enjoining Defendants, for the pendency of this action, as requested in □□□□□□□□□□□ 6 | Motion for a Preliminary Injunction. 7 8 | DATED: March 25, 2025. 9 10 Se RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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