FILED

NOT FOR PUBLICATION

MAR 30 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL GONZALEZ; et al., No. 21-15485

Plaintiffs-Appellants, D.C. No. 3:19-cv-07423-JSC

and

MEMORANDUM*

DANIEL TORRES; et al.,

Plaintiffs,

v.

GREGORY J. AHERN; et al.,

Defendants-Appellees.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 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. 2 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’

3 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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