Daniel Gonzalez; v. Gregory J. Ahern;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL GONZALEZ; et al.,
Plaintiffs-Appellants,
and
DANIEL TORRES; et al.,
Plaintiffs,
v.
GREGORY J. AHERN; et al.,
Defendants-Appellees.
No. 21-15485
D.C. No. 3:19-cv-07423-JSC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted March 16, 2022
San Francisco, California
FILED
MAR 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,** District
Judge.
Plaintiffs are former and current pretrial detainees and incarcerated
individuals at Santa Rita Jail in Alameda County, California. They appeal the
district court’s order denying their motion for a preliminary injunction. We have
jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm the district court’s
ruling. Because the parties are familiar with the facts, we do not recite them here.
We review a district court’s decision to grant or deny a preliminary
injunction, and its decision not to hold an evidentiary hearing, for abuse of
discretion. See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918
(9th Cir. 2003) (en banc) (per curiam); Int’l Molders’ & Allied Workers’ Loc.
Union No. 164 v. Nelson, 799 F.2d 547, 554–55 (9th Cir. 1986). “Our review is
limited and deferential.” Sw. Voter Registration Educ. Project, 344 F.3d at 918.
Plaintiffs’ complaint involves numerous allegations concerning the health
and safety of pretrial detainees and incarcerated individuals at Santa Rita Jail.
Their preliminary injunction motion focused on allegations that: (1) the jail’s
kitchen is contaminated with birds, rodents, and insects because the door
separating the kitchen from the outdoors consists only of plastic sheets; (2)
** The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
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defendants serve food on soiled and inadequately cleaned plastic trays; and (3)
defendants serve food that is contaminated and inedible. The district court
appropriately assessed the likelihood of plaintiffs’ success on the merits, see
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), according to the
deliberate indifference standard for a Fourteenth Amendment due process claim,
see Gordon v. County of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018).
The district court did not abuse its discretion by deciding that plaintiffs
failed to demonstrate a likelihood of success on their claim that defendants
demonstrated deliberate indifference with respect to the kitchen door. Plaintiffs
did not meet their burden of demonstrating a constitutional violation in light of
defendants’ evidence that they have taken “reasonable available measures” to abate
the risk of rodents, birds, and vermin in the kitchen. Gordon, 888 F.3d at 1125.
As for plaintiffs’ claims regarding the plastic food trays and food
contamination, the district court did not abuse its discretion in determining that
plaintiffs failed to carry their burden of persuasion because “resolution of the
issues raised by the [plaintiffs’] motion will require resolution of disputes of fact”
and those “disputes cannot be adequately resolved without the benefit of discovery
and testing of each party’s evidence.” In particular, the parties submitted
conflicting affidavits as to the efficacy of, and compliance with, defendants’
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policies for tray cleanliness and food contamination. Plaintiffs ask us to remand
for an evidentiary hearing, but they waited to request an evidentiary hearing until
after the hearing on their preliminary injunction motion, despite bearing the burden
of persuasion, see Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). Given
this procedural history, we cannot conclude that the district court abused its
discretion by denying plaintiffs’ request for a preliminary injunction without an
evidentiary hearing.
After the hearing on plaintiffs’ motion, the district court indicated that the
parties could begin written discovery on plaintiffs’ food-related claims. It is
concerning that at oral argument before our court, the parties expressed starkly
different views regarding their progress on foundational aspects of the necessary
discovery for this case, including production of the relevant cleaning protocols. As
noted, serious health and safety allegations are at issue. We leave it to the parties
to pursue the necessary discovery and/or related motions practice in the district
court.
AFFIRMED.
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