Opinion
2:20-cv-01338-SB
02-22-2022
JAMES ARTHUR ROSS, Plaintiff, v. TYLER BLEWETT et al., Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge
Plaintiff James Arthur Ross (“Ross”) is a self-represented litigant in the custody of the Oregon Department of Corrections (“ODOC”), currently housed at Two Rivers Correctional Institution (“TRCI”). This matter comes before the Court on Ross's third motion for a preliminary injunction. (ECF No. 38.) In his motion, Ross requests that the Court order ODOC to lift its COVID-19 mask mandate for himself and all other adults in custody (“AIC”) at TRCI who are fully vaccinated. For the reasons that follow, the Court recommends that the district judge deny Ross's preliminary injunction motion.
BACKGROUND
On August 10, 2020, Ross filed this action against TRCI Superintendent Tyler Blewett, Oregon Governor Kate Brown, ODOC Director Colette Peters, and several other ODOC officials and employees (together, “Defendants”), alleging constitutional violations relating to the COVID-19 pandemic.
On February 12, 2021, the Court granted Defendants' motion to stay this case pending resolution of class certification in a related putative class action, Maney et al. v. Brown et al., 6:20-cv-00570-SB (“Maney”). (ECF No. 23; ECF No. 34.) On December 2, 2021, Ross filed the present motion for a preliminary injunction requesting that the Court order Defendants to lift the mask mandate for fully vaccinated AICs at TRCI. (ECF No. 38.) On December 9, 2021, the Court lifted the stay for the limited purpose of resolving Ross's motion. (ECF No. 39.)
Ross alleges in his motion that ODOC's enforcement of the mask mandate on vaccinated AICs is unnecessary, and is in retaliation against Ross and other AICs who filed lawsuits seeking to force correctional officials to wear masks and take other measures in response to the COVID-19 pandemic. (See ECF No. 38.)
DISCUSSION
I. LEGAL STANDARDS
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008) (citations omitted). The elements of the 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) (“For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.”). “When the government is a party, [the] last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
A “mandatory injunction orders a responsible party to take action” and “is particularly disfavored.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (simplified). The “already high standard for granting a TRO or preliminary injunction is further heightened when the type of injunction sought is a ‘mandatory injunction.'” Innovation Law Lab v. Nielsen, 310 F.Supp.3d 1150, at 1156 (D. Or. 2018) (citing Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)).
The Prison Litigation Reform Act imposes additional restrictions on a court's ability to grant injunctive relief. Any such “[1] relief must be narrowly drawn, [2] extend no further than necessary to correct the harm the court finds requires preliminary relief, and [3] be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). The PLRA requires that courts “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity[.]” Id.
The PLRA also requires exhaustion of administrative remedies, but Defendants have not asserted an exhaustion defense in response to Ross's current motion. (See Defs.' Resp. at 4 n.2.)
II. ANALYSIS
Ross moves the Court to order Defendants “to immediately stop forcing all AICs who[] are fully vaccinated to wear a face covering” while in their housing units and to hold Defendants in contempt of court and charge them with a crime, including strangulation, if they continue to require vaccinated AICs to wear face coverings. (Pl.'s Mot. at 1-5, 11.) Ross argues that Defendants' enforcement of the mask mandate for AICs is “a form of punishment and retaliation for forcing prison officials to wear masks while they come into [AICs'] homes (prisons) via the lawsuits filed by Maney v. Brown, the plaintiff and others.” (Pl.'s Mot. at 2.)
Defendants respond that current state masking regulations and policies require masking indoors regardless of vaccination status, and that Ross has not provided any evidence of medical harm resulting from wearing a mask. (Defs.' Resp. at 9-10.)
The Court must evaluate the four Winter factors to determine if Ross has established the requirements for preliminary injunctive relief: (1) likelihood of success on the merits, (2) irreparable harm in the absence of preliminary relief, (3) the balance of equities, and (4) the public interest. SeeWinter, 555 U.S. at 20. The Court finds that Ross has not satisfied any of the requirements for injunctive relief here.
The Ninth Circuit also provides an alternative preliminary injunctive relief test-the “serious questions” test-but the Court finds that Ross also does not meet the requirements of the “serious questions” test here. SeeAlliance for the Wild Rockies, 632 F.3d at 1131-32 (holding that “‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met”).
First, Ross's retaliation claim is not properly before the Court because he did not include it in his amended complaint, but the Court considers the merits of the claim because this action has been stayed and Ross has not had an opportunity to amend his complaint to allege a retaliation claim. The Court finds that Ross is unlikely to succeed on the merits of a retaliation claim. He alleges that Defendants' enforcement of the state's mask mandate to AICs is retaliatory because he and other AICs filed cases related to ODOC's handling of the COVID-19 pandemic. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (“Of fundamental import to prisoners are their First Amendment right to file prison grievances and to pursue civil litigation in the courts” and “because purely retaliatory actions taken against a prisoner for having exercised those rights necessarily undermine those protections, such actions violate the Constitution[.]”) (simplified). On the contrary, Defendants require AICs to wear masks because state regulations and policy currently so require, and because masking in a congregate living environment during a pandemic reasonably advances legitimate correctional goals. (Defs.' Resp. at 7, 9.) Accordingly, Ross has not established a likelihood of success on the merits of his claims. See Winter, 555 U.S. at 20.
Indeed, Ross's amended complaint challenges Defendants' alleged failure to enforce the mask mandate at TRCI. (See Am. Compl. at 10.) Ross also previously filed two unsuccessful motions for a preliminary injunction asking the Court to, inter alia, enforce the masking requirement at TRCI. (See Mot. for Prelim. Inj., ECF Nos. 3, 20.)
Second, Ross has failed to demonstrate that irreparable injury is likely in the absence of an injunction. Ross alleges that he does not like wearing a mask all day, and that wearing a mask affects his ability to breathe and is “extremely hazardous” to his health. (Pl.'s Mot. at 2, 4-5, 7, 9, 13.) However, Ross has presented no medical or other evidence in support of his allegations. On the contrary, the Oregon Health Authority has concluded that wearing a mask for prolonged periods of time is safe. (Defs.' Resp. at 9.) On this record, Ross has not demonstrated that wearing a mask is causing him any serious negative health consequences, and therefore he has not demonstrated that irreparable injury will result from Defendants' continued enforcement of the mask mandate.
Ross asserts that he had to sit in medical without wearing a mask to raise his blood oxygen level because it was “dangerously low due to impedation [sic] of being forced to constantly wear a mask.” (Pl.'s Mot. at 13.) Ross does not, however, allege that he was informed by medical staff that wearing a mask was the cause of his alleged symptoms, nor has he submitted any medical records in support of these allegations.
Finally, Ross has not demonstrated that the balance of the equities and public interest favor an exemption for AICs at TRCI from state indoor masking regulations and policies. On the contrary, it is well-settled that wearing a mask in a congregate living environment helps to prevent the spread of COVID-19.
Weighing the Winter factors, the Court concludes that preliminary injunctive relief is not warranted here. See Winter, 555 U.S. at 20 (explaining that a party seeking preliminary injunctive relief must establish all four factors).
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Ross's Motion for Preliminary Injunction (ECF No. 38).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.