Benge v. Ryan et al

Filing 56

ORDER The reference to the Magistrate Judge is withdrawn as to Plaintiff'sMotions "Requesting Preliminary Injunction and a Temporary Restraining Order" (Docs. 12 and 16 ) and Plaintiff's "Motion Requesting Appointment of E xpert Witness to Assist/Preliminary Injunction and Temporary Restraining Order Hearing" (Doc. 39 ). Plaintiff's Motions "Requesting Preliminary Injunction and a Temporary Restraining Order" (Docs. 12 and 16) are denied. Plaintiff's Motion Requesting Appointment of Expert Witness to Assist/Preliminary Injunction and Temporary Restraining Order Hearing (Doc. 39) is denied. Signed by Judge David G Campbell on 2/23/2015.(KMG)

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MD

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Joseph Benge,

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No. CV 14-0402-PHX-DGC (BSB)

Plaintiff,
v.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Robert Joseph Benge, who is incarcerated in the Arizona State Prison

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Complex-Lewis (“ASPC-Lewis”), brought this civil rights case pursuant to 42 U.S.C.

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§ 1983. (Doc. 1). Thereafter, Plaintiff filed a “Motion Requesting Preliminary

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Injunction and a Temporary Restraining Order.” (Doc. 12.) Seven days later, Plaintiff

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filed his Motion again, adding four pages that were apparently missing from the original

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motion, and exhibits. (Doc. 16.) Defendants Corizon and Tucker filed a Response to

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Plaintiff’s Motions (Doc. 25) and Defendants Pratt and Ryan filed a separate Response

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(Doc. 31). Plaintiff filed a Reply in support of the Motions. (Doc. 36.) Plaintiff has also

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filed a “Motion Requesting Appointment of Expert Witness to Assist/Preliminary

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Injunction and Temporary Restraining Order Hearing.” (Doc. 39.)

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I.

Background

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A.

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Plaintiff filed a Complaint seeking damages and asserting two Counts of the denial

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Complaint

of constitutionally adequate medical care. (Doc. 1.) In Count I, Plaintiff alleged that his

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Eighth Amendment rights were violated when he was denied immediate treatment for a

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fractured tibia in May 2012. Plaintiff did not receive an MRI until July 3, 2012, which

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showed “an incomplete transverse fracture through the medial tibial,” and Plaintiff did

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not receive the results of the MRI until a visit with an orthopedic surgeon on

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November 15, 2012. (Doc. 1 at 9-10.) As a result of the lack of immediate treatment,

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Plaintiff avers that he has suffered permanent injury and continuing pain.

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In Count II, Plaintiff alleged that his Eighth Amendment rights were violated

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when, on multiple occasions, he did not receive prescribed pain medication. Plaintiff

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alleged that on June 18, 2013, his prescription medications Gabapentin and Propranolol

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were abruptly discontinued for three months because Defendant Mahler failed to renew

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those prescriptions and failed to give Plaintiff’s chart to the healthcare provider. Plaintiff

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also claimed that Mahler refused to arrange for Plaintiff to see a healthcare provider for

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pain management issues. Plaintiff alleged that on September 18, 2013 Defendant Tucker

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abruptly discontinued Plaintiff’s Baclofen 60 mg daily and reduced his Gabapentin from

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3200 mg daily to 600 mg, even though both were prescribed for “neurovascular

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compromise, muscle spasms for the fracture[d] tibia that was never treated.” (Doc. 1 at

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18.) Plaintiff’s Tramadol 50 mg twice daily for pain management related to an eye

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condition was stopped on November 5, 2013 and his Gabapentin 600 mg daily was

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stopped “cold turkey” on January 16, 2014 and has not been renewed. (Id.) Plaintiff saw

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an outside eye specialist on January 14, 2014, who wrote a prescription for Tramadol 300

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mg twice daily for pain management, but Defendant Tucker refused to prescribe this

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medication for Plaintiff.

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The Court determined that Plaintiff’s allegations sufficiently stated a claim and

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ordered Defendants Ryan, Pratt, Wexford, Merchant, and Mahler to answer the

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allegations in Count I and Defendants Ryan, Pratt, Corizon and Tucker to answer the

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allegations in Count II. (Doc. 6.) The Court dismissed the remaining Defendants without

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prejudice.1

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B.

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In his two Motions, Plaintiff alleges that he has been deprived of the following:

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(1) “adequate pain management medication(s)” (“Baclofen 60 mg daily, Tramadol 300

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mg daily, and Gabapentin 3200 mg daily”), which were “suddenly discontinued without

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explanation”; (2) physical therapy for his fractured tibia; (3) four consultations that were

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denied by Corizon in the past fifteen months; (4) supportive walking shoes with custom

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orthotics; and (5) an evaluation by a neurosurgeon in order to have an electromyography

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and nerve conduction test (“EMG/NCV”) for “nerve damage from [Plaintiff’s] untreated

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fracture[d] tibia.” (Doc. 16 at 2-3.)

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Motions for Preliminary Injunction and Temporary Restraining Order

Plaintiff seeks an order from the Court compelling Defendants Ryan, Pratt and

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Corizon to provide Plaintiff with the following: (1) pain management medications

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(Tramadol 300 mg daily, Gabapentin 3200 mg daily, and Baclofen 60 mg daily); (2) a

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support cane; (3) physical therapy twice a week for 120 days; (4) medical ice as needed;

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(5) supportive walking shoe(s) and custom orthotics; (6) an appointment to see a

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podiatrist; (7) an appointment to see a neurosurgeon to have an EMG/NCV test

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performed, as well as a CT scan or MRI; (8) and a knee brace. (Doc. 16 at 19-21.)

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Plaintiff also seeks an order requiring Librarian R. Padilla and Paralegal Uliberry, who

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are not named as Defendants in this case, “to stop den[y]ing Plaintiff meaningful access

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to this Court with their interference with regards to legal photocopies.” (Id. at 20.)

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II.

Legal Standard

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“A preliminary injunction is ‘an extraordinary and drastic remedy, 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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Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong,

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The Court also found that Plaintiff had stated a claim against Defendant Nurse
Doe but did not order service on the unidentified Defendant. In a subsequent Order, the
Court ordered that Josh Santos be substituted for Defendant Nurse Doe in Count I of the
Complaint and that Santos answer Count I. (Doc. 51.)
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520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc.,

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555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary

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remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must

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show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable

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harm without an injunction, (3) the balance of equities tips in his favor, and (4) an

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injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only

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show that there are ‘serious questions going to the merits’—a lesser showing than

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likelihood of success on the merits—then a preliminary injunction may still issue if the

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‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter

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factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th

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Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

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Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . .

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must be balanced, so that a stronger showing of one element may offset a weaker

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showing of another.” Lopez, 680 F.3d at 1072.

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Regardless of which standard applies, the movant “has the burden of proof on each

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element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

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1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a

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mandatory preliminary injunction, which should not be granted “unless the facts and law

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clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1441

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(9th Cir. 1986) (citation omitted).

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The Prison Litigation Reform Act (“PLRA”) imposes additional requirements on

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prisoner litigants who seek preliminary injunctive relief against prison officials and

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requires that any injunctive relief be narrowly drawn and the least intrusive means

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necessary to correct the harm. 18 U.S.C. § 3626(a)(2).

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III.

Analysis

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A.

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Plaintiff seeks injunctive relief against Librarian R. Padilla and Paralegal Uliberry

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in the form an order that they “make legal photocopies without hindering/delay as long as

Photocopies

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[P]laintiff’s signature is submitted on a[n] ‘Inmate Request for Withdrawal’ form.” (Doc.

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16 at 5.) Padilla and Uliberry are not parties to this action. Ordinarily, the Court cannot

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issue an injunction dealing with individuals and matters outside of the claim at issue. See

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Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969).

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An exception to that rule arises where the injunctive relief sought is related to

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access to the courts. See Prince v. Schriro, et al., CV 08-1299-PHX-SRB, 2009 WL

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1456648, at *4 (D. Ariz. May 22, 2009) (“a nexus between the preliminary relief and the

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ultimate relief sought is not required”) (citing Diamontiney v. Borg, 918 F.2d 793, 796

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(9th Cir. 1990)). Plaintiff’s allegations concerning interference with his access to the

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court may therefore be addressed.

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The constitutional right of access to the courts is only a right to bring petitions or

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complaints to the federal court and not a right to discover such claims or even to litigate

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them effectively once filed with a court. See Lewis v. Casey, 518 U.S. 343, 354 (1996);

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see also Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). To maintain an access-to-

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the-courts claim, an inmate must submit evidence showing an “actual injury” resulting

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from the defendant’s actions. See Lewis, 518 U.S. at 349. With respect to an existing

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case, the actual injury must be “actual prejudice . . . such as the inability to meet a filing

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deadline or to present a claim.” Id. at 348-49.

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Plaintiff alleges that he has been “frustrated or kept from pursuing a nonfrivolous

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First Amended Complaint” and that Uliberry’s statement to him about being a “jail-house

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lawyer” has “discouraged” him from taking more aggressive steps to receive copies of

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any First Amended Complaint.” (Doc. 16 at 4-5.) These allegations do not evidence any

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actual injury. Indeed, the docket reflects that Plaintiff has filed several motions and

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notices since filing his Motion for a Preliminary Injunction, including a Motion to File a

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First Amended Complaint. (See Docs. 34, 36, 37, 39, 42, 46, 47, 49.) Accordingly,

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Plaintiff’s request for an order that Librarian R. Padilla and Paralegal Uliberry “stop

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den[y]ing Plaintiff meaningful access to this Court with their interference with regards to

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legal photocopies” is denied.

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B.

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The Court finds that injunctive relief regarding Plaintiff’s medical care is

Medical Care

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inappropriate at this time because Plaintiff fails to establish that he is likely to succeed on

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the merits of his claim or that he faces imminent irreparable injury absent an injunction.

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To prevail on an Eighth Amendment medical care claim, a prisoner must

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demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are

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two prongs to the deliberate-indifference analysis. First, a prisoner must show a “serious

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medical need.” Jett, 439 F.3d at 1096 (citations omitted). A “‘serious’ medical need

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exists if the failure to treat a prisoner’s condition could result in further significant injury

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or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d

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1133, 1136 (9th Cir. 1997) (en banc) (internal citation omitted).

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Second, a prisoner must show that the defendant’s response to that need was

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deliberately indifferent. Jett, 439 F.3d at 1096. This second prong is met if the prisoner

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demonstrates (1) a purposeful act or failure to respond to a prisoner’s medical need and

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(2) harm caused by the indifference. Id. However, “a mere ‘difference of medical

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opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.’”

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Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citations omitted).

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Plaintiff alleges that in September 2013, Defendant Tucker abruptly discontinued

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his Baclofen prescription and “drastically altered” his Gabapentin prescription from 3200

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mg to 600 mg daily. (Doc. 1 at 18.) He further alleges that in November 2013 his

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Tramadol prescription was “stopped cold turkey,” that his Gabapentin was not renewed

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after January 2014, and that his Tegretol prescription was “stopped cold turkey” for six

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days in November 2013 and again for six days in December 2013. (Id.)

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In response, Defendants present evidence that while Plaintiff was prescribed

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Baclofen, a muscle relaxant, for a period of time, it is not approved for use in treating

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musculoskeletal pain such as Plaintiff’s and common practice in the medical community

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is to not prescribe narcotic muscle relaxants such as Baclofen to treat long-term chronic

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pain because they are highly addictive and lose their effectiveness over time. (Doc. 25,

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Ex. A ¶ 26.) As for Plaintiff’s Gabapentin allegations, Defendants assert that Defendant

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Tucker tried several different combinations of medications to treat Plaintiff’s pain and re-

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started Plaintiff on Gabapentin at 600 mg in September 2013, at Plaintiff’s request,

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because Plaintiff reported that the Tramadol gave no relief, but that Gabapentin gave him

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some relief. (Doc. 25 at 8; Ex. A ¶ 25.) Defendants further assert that between October

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and December 2013, Plaintiff was taking Tegretol, Pamelor, Tramadol (until Nov. 6,

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2013), and Gabapentin. (Doc. 25, Ex. A ¶ 27.) In January 2014, however, Plaintiff’s

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Gabapentin was discontinued because Plaintiff reported that he no longer received relief

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from Gabapentin, and Tucker then planned to start Plaintiff on Naprosyn to attempt to

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relieve his pain. (Id. ¶ 28.)

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As to Plaintiff’s allegations regarding Tramadol, Defendants present evidence that

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in January 2014, Dr. Heller recommended Tramadol for Plaintiff’s degenerative eye

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disease, keratoconus, a condition not normally associated with pain. (Id. ¶¶ 30-31.)

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Plaintiff had subsequent visits to Dr. Heller in February and April 2014, but Plaintiff did

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not complain of eye pain during those visits and Heller did not repeat the Tramadol

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recommendation on either of those visits. (Id. ¶ 30.) Further, Plaintiff did not complain

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to Tucker about eye symptoms following Dr. Heller’s Tramadol recommendation, and

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Tucker did not prescribe Tramadol because it presents problems in a prison setting, is

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addictive, and because, in January 2014, Plaintiff was already taking Gabapentin (until

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January 10, 2014), Tegretol, and Pamelor for pain. (Id. ¶ 31.) Later, in May 2014,

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Plaintiff reported no relief with Naprosyn and requested Gabapentin and Tramadol, and

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so Tucker discontinued the Naprosyn and Pamelor and “submitted a non-formulary drug

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request for Gabapentin and Tramadol for pain.” (Id. ¶ 34.)

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As to Plaintiff’s other requests, Plaintiff received a knee brace in April 2013 and

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Defendant Tucker submitted a consult for medical shoes in May 2014. (Id. ¶¶ 5, 16, 34.)

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Tucker noted during the May 2014 visit that Plaintiff’s symptoms “alluded to plantar

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fasciitis/bursitis,” and that Plaintiff “was amenable to attempting medical shoes first

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rather than orthotics.” (Id. ¶ 34.) Plaintiff was also provided information on exercises for

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plantar fasciitis. (Id.) Tucker contends that a podiatric consultation is not necessary at

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this time while they “exhaust[] conservative measures[.]” (Id.) Plaintiff did submit a

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health care request for a cane in May 2013, but Tucker “has always noted” Plaintiff “to

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have normal gait and no distress with ambulation” and so a cane “would not be necessary

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for his current health status.” (Id. at 32.)

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In addition, Defendants present evidence that Plaintiff’s fractured tibia has

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“completely healed” and that his pain is likely due to pes bursitis caused by tightness in

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the hamstrings. (Id. ¶¶ 13, 28.) On July 24, 2014, Plaintiff met with Dr. John

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Vanderhoof, an outside orthopedist, who noted that Plaintiff’s pain complaints were

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consistent with pes bursitis and that x-rays revealed mild degenerative joint disease of the

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left knee and that his left foot x-ray was negative. (Id. ¶ 36.) Dr. Vanderhoof

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recommended “aggressive physical therapy and some anti-inflammatories.” (Id. ¶ 36.)

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Plaintiff had his first physical therapy appointment on July 29, 2014, and the physical

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therapist recommended 6-8 follow-up visits. (Id. ¶ 37.) On July 31, 2014, Tucker “made

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a consultation request for 6-8 more” physical therapy visits, and on August 5, 2014,

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Tucker prescribed a trial of Indocin for Plaintiff’s chronic pain. (Id. ¶¶ 37-38.)

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Finally, Defendants present evidence that Plaintiff has not “presented any motor or

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sensation defects on examination,” making a consultation with a neurosurgeon

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unnecessary. (Id. ¶ 35.)

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The Court finds that on this record, Plaintiff cannot establish a likelihood that he

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will succeed on his deliberate indifference claim. The record at this juncture establishes,

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at most, a disagreement about how to treat Plaintiff’s symptoms, and that is insufficient to

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establish a constitutional violation. Toguchi, 391 F.3d at 1058.

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Accordingly Plaintiff’s Motions Requesting a Preliminary Injunction and a

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Temporary Restraining Order are denied.

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IV.

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Motion to Appoint Expert
In his Motion, Plaintiff asserts that appointment of an orthopedic surgeon as an

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expert is warranted because of the “botched” diagnosis of his leg injury and because of

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the subsequent “indifference to his serious pain and illness.” (Doc. 39 at 2-3.) In civil

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cases, the Court has the discretion to appoint expert witnesses, with the expert’s fees to

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be allocated pursuant to court order as provided by Rule 706(c). Under Rule 706, experts

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are properly appointed in the court’s discretion to assist the trier of fact in evaluating

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contradictory or complex evidence. Walker v. Am. Home Shield Long Term Disability

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Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (independent expert appointed to assist court

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in evaluating conflicting evidence of elusive disease of unknown origin); McKinney v.

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Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991) (noting court’s discretion to appoint

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expert in case involving complex scientific issues concerning effects of secondary

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cigarette smoke), vacated on other grounds, Helling v. McKinney, 502 U.S. 903 (1991).

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But appointment is not appropriate for the purpose of assisting a litigating party for his

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own benefit. See Carranza v. Fraas, 763 F. Supp. 2d 113, 119-20 (D.D.C. 2011);

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Pedraza v. Jones, 71 F.3d 194, 198 n.5 (5th Cir. 1995).

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Plaintiff has not shown issues of requisite complexity requiring appointment of an

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expert witness. Plaintiff appears to make this request for his own assistance, which is

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outside the scope of Rule 706. Moreover, Rule 706 contemplates that an expert will be

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paid by the parties, but Defendants would be required to bear the entire cost because

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Plaintiff is proceeding in forma pauperis. It is not appropriate or equitable to require

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Defendants to bear the burden of paying an expert witness to present Plaintiff’s point of

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view. Finally, the Court does not find the medical issues presented to be sufficiently

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complex, thereby necessitating an expert. See Ledford v. Sullivan, 105 F.3d 354, 359 (7th

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Cir. 1997) (deliberate indifference toward prisoner’s medical needs “did not demand that

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the jury consider probing, complex questions concerning medical diagnoses”).

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Accordingly, Plaintiff’s Motion Requesting Appointment of an Expert is denied.

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IT IS ORDERED:
(1)

The reference to the Magistrate Judge is withdrawn as to Plaintiff’s

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Motions “Requesting Preliminary Injunction and a Temporary Restraining Order” (Docs.

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12 and 16) and Plaintiff’s “Motion Requesting Appointment of Expert Witness to

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Assist/Preliminary Injunction and Temporary Restraining Order Hearing” (Doc. 39).

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(2)

Plaintiff’s Motions “Requesting Preliminary Injunction and a Temporary

Restraining Order” (Docs. 12 and 16) are denied.
(3)

Plaintiff’s “Motion Requesting Appointment of Expert Witness to

Assist/Preliminary Injunction and Temporary Restraining Order Hearing” (Doc. 39) is
denied.
Dated this 23rd day of February, 2015.

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