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ORDER - (1) The reference to the Magistrate Judge with withdrawn as to Jones' Motion for Preliminary Injunction (Doc. 15 ) and Defendants' Motion to Dismiss (Doc. 25 ).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)

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-