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Nevada Prisoner Wins Injunction Requiring DOC to Provide Exercise Despite Guard Shortage

by Matt Clarke

On June 6, 2023, Judge Cristina D. Silva of the federal court for the District of Nevada renewed a preliminary injunction she issued on March 3, 2023, ordering state prison officials to provide prisoner Jess Aaron Ross “at least seven hours of access to outdoor exercise per week.”

The state Department of Corrections (DOC) had dragged its feet, leaning on a clause making the injunction “subject to temporary limitations when a genuine emergency arises”—until Judge Silva held a hearing on DOC’s failure to comply. In the order that followed, the judge decided on her own initiative to appoint Ross counsel due to “the complexity and scope of the legal issues” and despite the fact that “Ross has demonstrated a rather impressive ability to articulate his claims pro se.”

Ross, who is incarcerated at High Desert State Prison (HDSP), filed his federal civil rights lawsuit pursuant to 42 U.S.C. § 1983 after being denied outdoor exercise opportunities for years. Undisputed evidence showed that he had no outdoor exercise for up to six months straight and received less than 20 total hours of outdoor exercise over eight months between March 18, 2020, and January 1, 2021. Ross named as defendants current and former DOC officials, including HDSP Warden Brian Williams, Sr., along with members of the state Board of Prison Commissioners.

During the hearing, Warden Williams testified that severe staffing shortages at HDSP “resulted in an ongoing temporary emergency” that made it impossible to provide Ross the court-ordered seven weekly hours of outdoor exercise. In fact, he could not even guarantee two hours weekly, since there were 128 vacant positions at HDSP, including 116 guard positions, resulting in a staffing shortage of 28% and a ratio of one guard per 51 prisoners. But the Court swatted those excuses aside, finding them insufficient in the face of “ongoing constitutional violations at HDSP.”

“[S]taffing limitations, which the defendants cite as justification for their wholesale deprivation of Ross’s Eighth Amendment rights, do not present an adequate basis to obviate the need for injunctive relief,” the Court said, pointing to Shorter v. Baca, 985 F.3d 1176 (9th Cir. 2018). “‘If the injury is the result of … policies or practices pervading the whole system,’ system-wide relief is appropriate even if only a ‘relatively small number of plaintiffs are injured,’” the Court continued, quoting Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010).

That may indicate that the Court anticipates the lawsuit as a potential class action resulting in system-wide relief. The Court also appointed counsel from attorney Patrick J. Reilly with Brownstein Hyatt Farber Schreck, LLP in Las Vegas. It then found that the preliminary injunction satisfied the requirements for need, narrowness and limited intrusiveness of the Prison Litigation Reform Act, 42 U.S.C. § 1997e, and ordered it extended for another 75 days following June 2, 2023. See: Ross v. Johnson, 2023 U.S. Dist. LEXIS 98502 (D. Nev.)

Ross then filed a request for the Court to appoint a Special Master to oversee the injunction, which was denied on August 18, 2023. But that same day Judge Silva also extended the preliminary injunction until the next hearing in the case. See: Ross v. Johnson, 2023 U.S. Dist. LEXIS 145135 (D. Nev.).

Three days after the next hearing, on August 31, 2023, the Court again extended the preliminary injunction to October 28, 2023, finding that “improvement in providing Ross access to outdoor time” had been undermined eight days earlier when “a racially-motivated homicide occurred at HDSP” that left the prison on 24-hour lockdown. Clearly, the Court said, “these staffing shortages which previously caused reduced yard time are simply not temporary,” and now with a homicide investigation “yet again curtailing Ross’s time outside of his cell,” there remained “a clear need for injunctive relief.” See: Ross v. Johnson, 2023 U.S. Dist. LEXIS 155021 (D. Nev.).

The case remains pending at the Court, which again extended the preliminary injunction another 60 days on October 26, 2023, to December 26, 2023. By then Ross, who is still proceeding pro se, and DOC officials should have completed a settlement conference currently scheduled for December 21, 2023. PLN will update developments as they are available. See: Ross v. Johnson, USDC (D. Nev.), Case No. 2:22-cv-00259.  

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Ross v. Johnson

Ross v. Johnson

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Ross v. Johnson