Jones v. Alvarez et al

Filing 35

ORDER - (1) The reference to the Magistrate Judge with withdrawn as to Jones' Motion for Preliminary Injunction (Doc. 15 ) and Defendants' Motion to Dismiss (Doc. 25 ). (2) Jones' Motion for Preliminary Injunction (Doc. 15 ) is denied. (3) Defendants Motion to Dismiss (Doc. 25 ) is denied. (4) Defendants must file a responsive pleading within 14 days from the date ofthis order. (See document for further details). Signed by Judge David G Campbell on 2/18/14. (LAD)

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1 2 JDN WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Craig Murray Jones, 10 11 12 No. CV 13-0099-PHX-DGC (LOA) Plaintiff, vs. ORDER Jeff Alvarez, et al., 13 Defendants. 14 15 Plaintiff Craig Murray Jones brought this civil rights complaint under 42 U.S.C. 16 § 1983 against three Maricopa County Jail medical providers: Physician’s Assistants 17 (PAs) Matt Barker and Barry Johnson and Dr. Monica Gaskins (Doc. 1). Before the 18 Court are Jones’ Motion for Preliminary Injunction and Defendants’ Motion to Dismiss 19 (Docs. 15, 25). The Court will deny both motions. 20 I. Background 21 A detailed factual background is set forth in the Court’s Screening Order (Doc. 12 22 at 3-12). In summary, before his confinement, Jones was involved in a car accident that 23 resulted, among other injuries, in cervical and lumbar sprains, disc displacement, 24 neuralgia, and intervertebral disc disorder. He received physical therapy and narcotic 25 pain relievers, which substantially alleviated pain caused by his injuries. 26 Shortly after he arrived at the Fourth Avenue Jail in June 2011, Jones repeatedly 27 informed staff of his back injuries and his severe and worsening pain. On October 3, 28 2011, he finally saw a doctor, who referred Jones to an outside orthopedic specialist. On 1 October 12, 2011, Jones saw the specialist, who ordered Ultram, a non-narcotic analgesic 2 for moderate to moderately severe pain; Flexeril, a muscle relaxant; Baclofen, which acts 3 on the spinal cord and relieves pain; and epidural injections. 4 Jones alleges that in February 2012, PA Barker discontinued Ultram and Baclofen 5 and denied renewal of another prescribed pain reliever, Soma, which had been very 6 effective, without providing or addressing alternative medications or treatment for Jones’ 7 pain. Murray alleges that Dr. Gaskins denied him medically appropriate treatment for his 8 pain by failing to prescribe effective medications. Jones alleges that PA Johnson rejected 9 Jones’ request for Vicodin, even though it had been suggested by Dr. Gaskins, and PA 10 Johnson suggested that Jones purchase over-the-counter pain relievers at the commissary. 11 The Court determined that Jones’ allegations were sufficient to state claims that 12 these Defendants acted with deliberate indifference to his serious medical need (id. at 13 20). In August 2013, Jones filed a Motion for Preliminary Injunction, in which he seeks 14 an order directing Defendants to renew the Soma prescription and to issue him a thermal 15 undershirt (Doc. 15). In September 2013, Defendants filed their Motion to Dismiss under 16 Rule 12(b)(6), arguing that Jones fails to state a claim (Doc. 25). 17 II. Motion to Dismiss 18 A. 19 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims alleged Legal Standard 20 in the complaint. 21 Dismissal of the complaint, or any claim within it, may be based on either a “‘lack of a 22 cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable 23 legal theory.’” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th 24 Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 25 1990)). In determining whether a complaint states a claim under this standard, the 26 allegations in the complaint are taken as true and the pleadings are construed in the light 27 most favorable to the nonmovant. Outdoor Media Group, Inc. v. City of Beaumont, 506 28 F.3d 895, 900 (9th Cir. 2007). Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). -2- 1 A complaint must contain “enough facts to state a claim to relief that is plausible 2 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. 3 Iqbal, 556 U.S. 662, 677-78 (2009). A pleading must contain “a short and plain 4 statement that 5 Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the statement need only 6 give the defendant fair notice of what . . . the claim is and the grounds upon which it 7 rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted). of the claim showing the pleader is entitled to relief.” 8 B. 9 A Rule 12(b)(6) motion to dismiss is almost never an appropriate response when 10 the Court has already screened a prisoner complaint pursuant to 28 U.S.C. § 1915A(b) 11 and directed the defendants to respond. The standard for dismissal under Rule 12(b)(6) is 12 identical to the standard under 28 U.S.C. § 1915A(b) (“fail[ure] to state a claim upon 13 which relief may be granted”). 14 pursuant to § 1915A(b), a Rule 12(b)(6) motion to dismiss should be granted only if the 15 defendants can convince the Court that reconsideration is appropriate. Reconsideration is 16 appropriate only if the district court “(1) is presented with newly discovered evidence, 17 (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an 18 intervening change in controlling law.” 19 ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Discussion After the Court has screened a prisoner complaint School Dist. No. 1J, Multnomah Cnty. v. 20 In their motion, Defendants argue that Jones did not allege any actions by them 21 that demonstrate they were deliberately indifferent to his serious medical need (Doc. 25 22 at 4). Defendants assert that in his pleading, Jones concedes that alternative medications 23 were offered to him and that he was seen numerous times by medical providers and 24 outside specialists (id. at 5). They submit that, at best, Jones alleges a difference of 25 opinion regarding how his pain should be treated (id. at 4). According to Defendants, 26 such allegations fail to state a claim for deliberate indifference (id. at 5-6). Jones opposes 27 the motion and argues that his allegations are more than sufficient to establish a claim for 28 deliberate indifference by Defendants (Doc. 33). -3- 1 The Court already screened Jones’ Complaint under a standard identical to that 2 found in Rule 12(b)(6) and determined that his allegations sufficiently state a plausible 3 claim for relief (Doc. 12). To the extent that Defendants seek reconsideration of the 4 Screening Order, their motion is untimely. 5 reconsideration must be filed no later than 14 days from date of the Order that is subject 6 of the motion). Moreover, Defendants present nothing that warrants reconsideration of 7 the Screening Order. See School Dist. No. 1J, 5 F.3d at 1263. Defendants’ Motion to 8 Dismiss will therefore be denied. 9 III. See LRCiv 7.2(g)(2) (motion for Preliminary Injunction 10 A. 11 A preliminary injunction is an “extraordinary remedy” that may be granted only 12 where the movant shows that “he is likely to succeed on the merits, that he is likely to 13 suffer irreparable harm in the absence of preliminary relief, that the balance of equities 14 tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. 15 Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc. v. City of L.A., 559 16 F.3d 1046, 1052 (9th Cir. 2009). The movant has the burden of proof on each element of 17 the test. Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 18 2000). Under the “serious questions” version of the sliding-scale test, the elements of the 19 preliminary injunction test are balanced, so that a stronger showing of one element may 20 offset a weaker showing of another. See Alliance of the Wild Rockies v. Cottrell, 632 21 F.3d 1127, 1135 (9th Cir. 2011). 22 heightened burden where a plaintiff seeks a mandatory preliminary injunction, which 23 should not be granted “unless the facts and law clearly favor the plaintiff.” Comm. of 24 Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted). Legal Standard Regardless of which test is applied, there is a 25 The Prison Litigation Reform Act imposes additional requirements on prisoner 26 litigants who seek preliminary injunctive relief against prison officials and requires that 27 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 28 -4- 1 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 2 987, 999 (9th Cir. 2000). 3 With respect to the likelihood-of-success element, a prisoner can establish an 4 Eighth Amendment violation arising from deficient medical care if he can show that 5 prison officials were deliberately indifferent to a serious medical need. 6 Gamble, 429 U.S. 97, 104 (1976). 7 need” and (2) that the defendant’s response to that need was deliberately indifferent. Jett 8 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations omitted). To show deliberate 9 indifference, the prisoner “must show that the course of treatment the doctors chose was 10 medically unacceptable under the circumstances” and that the defendant “chose this 11 course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. 12 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citations omitted). Estelle v. This requires two showings: (1) a “serious medical 13 B. 14 Jones relies on the allegations in his Complaint to support his request for an order 15 directing Defendants to prescribe Soma and issue a thermal undershirt, and he asks that 16 the Court “consider his pain and suffering” (Doc. 15 at 1-2). Discussion 17 The Court finds that Jones cannot satisfy the necessary elements for injunctive 18 relief. At the least, Jones must demonstrate that absent an injunction, he will be exposed 19 to irreparable harm. Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th 20 1988). “Speculative injury does not constitute irreparable injury sufficient to warrant 21 granting preliminary relief. A plaintiff must do more than merely allege imminent harm 22 sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury 23 as a prerequisite to preliminary injunctive relief.” Id. (internal citations omitted). In his 24 motion, Jones does not provide any specific allegations or facts regarding his current 25 medical situation, such as the medications he is taking and his present condition and pain 26 levels. To the extent the Court relies on the allegations in Jones’ Complaint, it was filed 27 in January 2013—more than one year ago—and thus does not serve to demonstrate what, 28 if any, harm Jones may presently be facing. In short, there is no evidence of an emergent -5- 1 need or immediate risk of harm, and Jones has not established a likelihood of irreparable 2 harm. 3 Jones fails to address any of the other Winter factors. Therefore, even absent any 4 opposition from Defendants, Jones’ Motion for Preliminary Injunction must be denied. 5 IT IS ORDERED: 6 7 (1) The reference to the Magistrate Judge with withdrawn as to Jones’ Motion for Preliminary Injunction (Doc. 15) and Defendants’ Motion to Dismiss (Doc. 25). 8 (2) Jones’ Motion for Preliminary Injunction (Doc. 15) is denied. 9 (3) Defendants’ Motion to Dismiss (Doc. 25) is denied. 10 (4) Defendants must file a responsive pleading within 14 days from the date of 11 this order. 12 . Dated this 18th day of February, 2014. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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