Torres v. Ryan et al

Filing 78

ORDER - IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for a Temporary Restraining Order and Motion for Preliminary Injunction and (Doc. 28 ), and it is denied. Signed by Senior Judge James A Teilborg on 3/21/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert P. Torres,
Plaintiff,

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vs.

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Charles Ryan, et al.,
Defendants.

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No. CV 12-0006-PHX-JAT (DKD)

ORDER

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Plaintiff Robert P. Torres, an inmate in the custody of the Arizona Department of

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Corrections (ADC) in Buckeye, Arizona, filed this pro se civil rights action. (Doc. 10.)

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Plaintiff has filed a Motion for a Preliminary Injunction and Temporary Restraining Order,

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which Defendants oppose. (Docs. 28, 45, 70.) The Court will deny the motion.

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I.

Background

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In his Amended Complaint, Plaintiff alleges denial of constitutionally adequate

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medical care for his Hepatitis C. (Doc. 10.) Plaintiff alleges that on May 11, 2009, Facility

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Health Administrator (FHA) Greeley responded to Plaintiff’s letter telling him that he should

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be on a monitoring program of his HCV, but that Plaintiff did not then qualify for treatment

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under prison protocols. Shortly thereafter, Greeley told Plaintiff that he was not on

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monitoring protocols. On December 18, 2009, Health Services Administrator Clausen

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informed him that he met the criteria for monitoring of his HCV and that Clausen told him

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that he would so recommend to the Hep. C Committee. Despite these statements, Plaintiff

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claims that his HCV was not monitored by medical personnel who subsequently reviewed

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his medical records. In addition, Plaintiff alleges that Director Ryan responded to subsequent

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grievances and letters sent to him, telling Plaintiff that he had reviewed Plaintiff’s medical

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records and that he denied relief, despite Greeley’s May 11, 2009 determination that Plaintiff

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should be monitored. Finally, Plaintiff alleges that Clausen’s response to a 2012 medical

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grievance mirrored Ryan’s denial of relief based on Ryan’s review of Plaintiff’s medical

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history. Plaintiff seeks damages and injunctive relief; specifically, Plaintiff seeks “diagnostic

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testing, treatment and review of testing by independent medical specialist(s).” (Id. at 18.).

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The Court required Ryan and Greeley, and the Defendants who reviewed Plaintiff’s

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medical records subsequent to May 11, 2009, i.e., after Greeley informed Plaintiff that he

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should be monitored, to respond to Plaintiff’s claim of deliberate indifference to his serious

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medical needs. (Doc. 17.) Specifically, Defendants Ryan, Greeley, Lewis, King, Echeverria,

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and Clausen were required to respond to the First Amended Complaint. The remaining

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claims and Defendants were dismissed. (Id.) The Court also denied Plaintiff’s first motion

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for injunctive relief. Plaintiff sought an order requiring contact by Defendants with him be

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supervised by the Court or legal representatives. He attributed his treatment on August 17,

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2012,—when he was brought to the Lewis Complex to be seen by Dr. Echeverria for an

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injured shoulder—to a general attempt by Defendants to retaliate or intimidate him for filing

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this suit. Specifically, Plaintiff, a Protective Segregation (PS) inmate, alleged he was put in

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full restraints and taken to an area in which unrestrained General Population (GP) inmates

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were present and described Echeverria’s acerbic and caustic manner during the medical visit.

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(Id.)

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II.

Preliminary Injunction and Temporary Restraining Order

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A.

Legal Standard

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A preliminary injunction is an extraordinary and drastic remedy and “one that should

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A.

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Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)). An
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injunction may be granted only where the movant shows that “he is likely to succeed on the

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merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc.

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v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The movant has the burden of

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proof on each element of the test. Environmental Council of Sacramento v. Slater, 184 F.

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Supp. 2d 1016, 1027 (E.D. Cal. 2000). A Request for a TRO is governed by the same

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general standards that govern the issuance of a preliminary injunction. See New Motor

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Vehicle Bd. V. Orrin W. Fox. Co., 434 U.S. 1345, 1347 n. 2 (1977); Los Angeles Unified

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Sch. Dist. V. U.S. Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1982). In addition, because the

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function of a preliminary injunction is to preserve the status quo pending a determination on

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the merits, Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988), there is heightened

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scrutiny where the movant seeks to alter rather than maintain the status quo. Dahl v. HEM

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Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (holding that mandatory, as opposed to

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prohibitory, injunctions are “subject to a heightened scrutiny and should not be issued unless

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the facts and law clearly favor the moving party”).

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Under the “serious questions” version of the sliding-scale test, a preliminary

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injunction is appropriate when a plaintiff demonstrates that “serious questions going to the

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merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.” Alliance

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for the Wild Rockies v. Cottrell, 632 F. 3d 1127, 1134-35 (9th Cir. 2011), citing Lands

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Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc). This approach requires that

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the elements of the preliminary injunction test be balanced, so that a stronger showing of one

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element may offset a weaker showing of another. “‘[S]erious questions going to the merits’

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and a balance of hardships that tips sharply towards the plaintiff can support issuance of a

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preliminary injunction, so long as the plaintiff also shows that there is a likelihood of

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irreparable injury and that the injunction is in the public interest.” Id. at 1135

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The Prison Litigation Reform Act (PLRA) also imposes requirements on prisoner

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litigants who seek preliminary injunctive relief against prison officials. “Preliminary
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injunctive relief must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means necessary

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to correct that harm.” 18 U.S.C. § 3626(a)(2). Thus, § 3626(a)(2) limits the court’s power

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to grant preliminary injunctive relief to inmates; “no longer may courts grant or approve

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relief that binds prison administrators to do more than the constitutional minimum.” Gilmore

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v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).

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Generally, an injunction should not issue if it “is not of the same character, and deals

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with a matter lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, Fla., 122

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F.3d 41, 43 (11th Cir. 1997)).

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B.

Parties’ Contentions
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Plaintiff

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Plaintiff asks the Court to enter an order directing Defendants, their agents, employees

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and others to (1) cease all acts of intimidation, harassment and retaliation; (2) return Plaintiff

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to his original state of confinement/employment; (3) provide for Plaintiff’s existing and

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future medical needs under the supervision of impartial medical specialists not associated

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with Plaintiff’s claim or under the supervision of Echeverria; (4) and direct that Echeverria

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have no further contact with, oversight of, or involvement in Plaintiff’s medical testing,

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treatment or monitoring protocols. (Doc. 28 at 3.) In support of his request, he submits his

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affidavit. (Doc. 29.)

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Plaintiff attests that on October 30, 2012, he was seen by Nurse Reese who advised

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that Plaintiff was to be transported to the Lewis Complex medical unit to see a doctor and

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that Plaintiff might be losing his job as a barber and moved to L-11. (Id. ¶ 2.) On October

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31, he was transported to the Lewis Medical complex and advised by Health Care Provider

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(HCP) Ende that he would be placed in isolation, meaning confined to a single cell without

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property. (Id. ¶ 3.) When Plaintiff stated that he was going to be punished for asking for

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medical care, Ende encouraged Plaintiff to sign a form refusing medical services. Plaintiff

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claims that it was clear that he would be able to keep his job and housing assignment only

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if he signed the refusal. Plaintiff attests that he believes this was an effort to get him to give
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up past, present, and future claims of medical care. (Id.) On November 6, Plaintiff was seen

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by Nurse Reese who advised that he might be losing his job and moved; he was asked to sign

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a blank limited-duty/activity form for Echeverria to fill out later. (Id. ¶ 4.)

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According to Plaintiff, on November 7, he was given notice that he would be removed

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from his WIPP position as a barber without cause and in violation of Arizona law and ADC

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procedures. (Id. 5.) Reese said that she was following Echeverria’s orders. (Id. ¶ 6.) The

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WIPP Coordinator also said that he was told to remove Plaintiff from his job per doctor’s

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orders. (Id. ¶ 7.) Plaintiff told the Coordinator that this is retaliation. (Id.)

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Plaintiff asserts that this is retaliation by Echevarria for naming him as a Defendant.

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He asks the court to investigate and to order ADC to do the same. (Id. ¶ 8.) Plaintiff claims

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there is a conflict of interest with Echevarria having oversight of Plaintiff health needs. (Id.)

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2.

Defendants

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Defendants assert that Plaintiff’s version of events is misleading. (Doc. 45 at 5.) In

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late 2012, Plaintiff told Reese that he thought he was suffering from dementia. (Id., Ex. A,

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Echeverria Decl. ¶ 8.) Reese consulted with Dr. Echeverria, who informed Reese that if

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Plaintiff has dementia, and if it placed other inmates in danger, they would have to consider

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moving him to L-11, a nursing ward at ASPC-Lewis, to provide treatment, and that if

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Plaintiff was a danger to other inmates, Plaintiff would not be allowed to continue working

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as an inmate barber due to the safety issues. (Id.)

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Echeverria attests that he did not instruct Reese to relocate Plaintiff, to place him in

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isolation, to remove him from his job, or to have him sign a blank SNO regarding limited

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activity or duty. (Id. ¶¶ 10-12.) Defendants assert that it appears that ADC medical staff

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attempted to relocate Plaintiff to L-11 for observation with respect to his mental health and

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that Plaintiff refused. Staff asked that he sign a formal waiver refusing treatment to avoid

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observation in L-11. (Doc. 45 at 5.)

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Echeverria further attests that based on a review of Plaintiff’s subsequent medical

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records, it appears that he does not have dementia. (Id. ¶ 9.) Therefore, there is currently no

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need to move him to L-11 for treatment or remove him from his job assignment as an inmate
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barber. (Id.) Plaintiff does not have a Special Needs Order (SNO) precluding him from

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performing his job and is currently employed as an inmate barber. (Id. ¶ 12.) And “as a

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precautionary measure,” Dr. Echeverria is no longer Plaintiff’s primary physician. (Id. ¶

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15.) Nurse Practitioner Ende is providing him any necessary medical care. (Id.)

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Defendants argue that Plaintiff is not entitled to a preliminary injunction because the

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claims and requested relief are unrelated to those in the First Amended Complaint. (Doc. 45

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at 2.) In addition, Plaintiff is not seeking to maintain the status quo. (Id. at 3.) They contend

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that Plaintiff has submitted no evidence that he is likely to prevail on the underlying claims

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of refusal to provide treatment for his Hepatitis C. (Id. at 5.) Furthermore, even if Plaintiff

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were moved from his present housing assignment or removed from his job, there would be

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no constitutional violation because he has no right to a specific housing assignment or

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security classification. (Id. at 6.) Nor does he have a right to a specific medical provider.

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(Id. at 7.) As to an injunction for treatment, Defendants argue that Plaintiff fails to specify

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what treatment he seeks. (Id.) Plaintiff fails to demonstrate irreparable harm. (Id. at 8.)

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3.

Reply

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Plaintiff asserts that Echeverria has again “orchestrated a scenario of upset”

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threatening to disrupt Plaintiff’s work assignment in order to harass and retaliate against him

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for this lawsuit. (Doc. 53 at 2.) Plaintiff contends that he did, in fact, lose his job and

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submits a letter from the WIPP Counselor stating that Plaintiff was removed from his job

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because the Counselor was informed by Nurse Reese that Plaintiff was not cleared to work,

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that the Counselor was told it was a directive from the doctor handling the case and that the

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job would not be restored without authorization from medical. (Id., Ex. A.) Plaintiff asserts

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that this calls into doubt the accuracy of Echeverria’s declaration. (Id. at 3.) He claims the

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inmate record dated December 7, 2012 was “censored” to list his work assignment to

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November 13, 2012 in order to confuse and that he was retaliated against and his claims are

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not based on speculation.

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Plaintiff argues that he is attempting to preserve the status quo and that his motion is

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related to the claims in his First Amended Complaint. (Id. at 4.) The state and ADC prohibit
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intimidation and retaliation. (Id. at 4.) Defendants tried to circumvent the judicial process

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by trying to pressure and confuse a patient. (Id. at 5.)

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Plaintiff argues that he is not seeking review of the elements and merits of his claim

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but he is confident that he will convince a jury. (Id.) He further argues it is clear that

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Defendants were attempting to force Plaintiff to waive medical care by threats and that

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Echeverria admits to having discussed moving Plaintiff to L-11 and removing him from his

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job. (Id. at 6.) When Plaintiff refused to sign the blank form, Reese acted upon her threat

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and Reese and Ende acted at the direction of Echeverria who continues to exercise his

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authority over others. (Id. at 6-7.)
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Supplemental Response

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Defendant Ryan files a supplemental response acknowledging that Plaintiff has been

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removed from his position as an inmate barber due to concerns regarding his mental health.

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(Doc. 70 at 2.) Dr. Richard Rowe attests that even though Echeverria did not believe that

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Plaintiff has dementia, due to concerns regarding Plaintiff’s mental health, medical staff

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believed it would be dangerous for Plaintiff to continue working with sharp objects, so he

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was removed from his position as a barber. (Id., Rowe Decl. ¶¶ 6, 8.) Rowe attests that

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Plaintiff is housed at Lewis and receiving medical and mental health treatment. (Id. ¶ 7.)

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C.

Analysis

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The Court will deny Plaintiff’s request for injunctive relief in all regards. Plaintiff’s

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claim of retaliation is not of the same nature as the claims in the First Amended Complaint.

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A party seeking preliminary injunctive relief “must necessarily establish a relationship

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between the injury claimed in the party’s motion and the conduct asserted in the complaint.”

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Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (Eighth Amendment claim cannot

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provide basis for preliminary injunction against alleged acts in retaliation for filing claim);

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see also Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997).

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In addition, the Court is not persuaded that Plaintiff has been retaliated against. Even

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though Plaintiff has been removed from his position as barber, that does not establish

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retaliation; through the declaration of Rowe, Defendants submit evidence of a legitimate
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penological justification for removal of Plaintiff from his job. See Rhodes v. Robinson, 408

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F.3d 559, 567-58 (9th Cir. 2005) (a claim of First Amendment retaliation contains five basic

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elements, including that the action did not reasonably advance a legitimate correctional goal.)

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Notably, Plaintiff does not deny that he reported having dementia. The Court will not direct

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Defendants to restore Plaintiff to his job as a barber.

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Plaintiff’s speculation about intimidation and harassment are insufficient to

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demonstrate irreparable harm, and his allegations are conclusory that staff acted at the

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direction of Echeverria to retaliate.

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irreparable harm sufficient to warrant granting a preliminary injunction.” Caribbean Marine

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Services Co., Inc. v. Baldrige, 844 F. 2d 668, 674-675 (9th Cir. 1988) (emphasis added). To

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meet the “irreparable harm” requirement, a plaintiff must do more than merely allege

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imminent harm; he must demonstrate it. Id. at 674.

Mere “[s]peculative injury does not constitute

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As for the remaining requests for injunctive relief—to provide for Plaintiff’s existing

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and future medical needs under the supervision of impartial medical specialists not associated

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with Plaintiff’s claim or under the supervision of Echeverria; and to direct that Echeverria

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have no further contact with, oversight of, or involvement in Plaintiff’s medical testing,

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treatment or monitoring protocols—Plaintiff has not established the need for the relief sought

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or how any of it relates to his claim regarding treatment for Hepatitis C. As with the claimed

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retaliation, Plaintiff has failed to establish the elements of a preliminary injunction; in

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particular, he fails to establish irreparable harm or that he will succeed on the merits of his

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underlying claim. Moreover, a court may not issue an injunction against individuals who are

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not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100, 110 (1969). In addition, Defendants represent that Echeverria will no longer be

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Plaintiff’s primary care giver, and Plaintiff offers nothing but speculation that Ende acted at

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the direction of Echeverria to retaliate. Finally, the requested relief is far too broad to meet

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the requirements of the PLRA that the relief be narrowly drawn.

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Plaintiff’s motion will be denied.

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IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to
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Plaintiff’s Motion for a Temporary Restraining Order and Motion for Preliminary Injunction

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and (Doc. 28), and it is denied.

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DATED this 21st day of March, 2013.

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