Valenzuela v. Perkins et al

Filing 104

ORDER: The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Preliminary Injunction 69 and Motion for Court Ordered Examination of Plaintiff 103 , and both Motions are denied. Signed by Judge Michael T Liburdi on 11/19/2020. (REK)

1

WO

SKC

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Melinda Gabriella Valenzuela,

10
11
12

No. CV 19-04335-PHX-MTL (MHB)

Plaintiff,
v.

ORDER

Adam Perkins, et al.,

13

Defendants.

14
15

Plaintiff Melinda Gabriella Valenzuela, who is currently confined in the Arizona

16

State Prison Complex (ASPC)-Florence, has filed a pro se civil rights Complaint pursuant

17

to 42 U.S.C. § 1983. Before the Court are Plaintiff’s Motion for Preliminary Injunction

18

(Doc. 69) and Motion for Court Ordered Examination of Plaintiff (Doc. 103).

19
20

The Court will deny both Motions.
I.

Background

21

On screening of Plaintiff’s 3-count First Amended Complaint under 28 U.S.C.

22

§ 1915A(a), the Court determined that, liberally construed, Plaintiff stated Eighth

23

Amendment medical care claims against Defendant Registered Nurse Christina Andre in

24

Count One based on Andre’s alleged denial of treatment related to Plaintiff’s catheter and

25

against Defendants Director of Nursing Jessica Todd and Nurse Practitioners C. Eze and

26

Andre in Count Two based on their alleged denial of treatment for Plaintiff’s alleged bowel

27

condition. (Doc. 19.) The Court directed Defendants Andre, Todd, and Eze to answer and

28

dismissed the remaining claims and Defendants. (Id.)

1

II.

Injunctive Relief Standard

2

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

3

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

4

Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520

5

U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555

6

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

7

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

8

(1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm without

9

an injunction, (3) the balance of equities tips in her favor, and (4) an injunction is in the

10

public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are

11

‘serious questions going to the merits’—a lesser showing than likelihood of success on the

12

merits—then a preliminary injunction may still issue if the ‘balance of hardships tips

13

sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell

14

Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance

15

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious

16

questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger

17

showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at

18

1072.

19

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

20

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

21

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

22

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

23

clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th

24

Cir. 1986) (citation omitted).

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

-2-

1

the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987,

2

999 (9th Cir. 2000).

3

III.

Motions for Injunctive Relief

4

A.

5

In her Motion for Preliminary Injunction, Plaintiff requests that the Court set a

6

hearing “and have Plaintiff transported to the hospital to receive proper care.” (Doc. 69 at

7

3.) This is the second Motion Plaintiff has filed in this action requesting emergency

8

transport to the hospital. (See also Doc. 38.) The Court denied the previous Motion based

9

on Plaintiff’s failure to show she was likely to succeed on the merits of her underlying

10

claims or that she faced irreparable harm absent preliminary injunctive relief. (See Doc.

11

51 at 3.) Here, as in her previous Motion, Plaintiff claims that she is unable to urinate, but

12

prison medical staff have done nothing to address this issue. (Doc. 69 at 2.) She also

13

claims that her urologist requested she have a urostomy instead of a catheter, but the

14

prison’s contracted healthcare provider Centurion has yet to comply with that request or

15

send her out for a follow-up to a urology consult she had with Dr. Hall. (Id.) In support

16

of her Motion, Plaintiff provides a medical record showing that, on June 3, 2018, she was

17

diagnosed with “neuromuscular dysfunction of the bladder, unspecified” (Doc. 69-1 at 8);

18

a “Consultation Request,” showing that, on August 11, 2020, she was approved for an off-

19

site urology consult (Id. at 17); and numerous Health Needs Requests (HNRs) she filed

20

between March and July 2020, complaining about her inability to urinate. (Id. at 20−34.)

21

Defendants argue in their Response that the Court should summarily deny the

22

Motion because, as in her previous such Motion, Plaintiff again fails to set forth arguments

23

or credible evidence as to any of the Winter factors to show she is entitled to preliminary

24

injunctive relief. (Doc. 73 at 1−2.) They point out that Plaintiff’s exhibits show that, each

25

time Plaintiff submitted HNRs, they were addressed and follow-up appointments with

26

medical providers were scheduled and took place; Plaintiff was additionally scheduled for

27

a urology consult; and there is no evidence any provider ordered she be given a particular

28

type of catheter, as she also claims. (Id. at 2.) Defendants request that if the Court is not

Motion for Preliminary Injunction

-3-

1

inclined to summarily deny Plaintiff’s Motion they be given two weeks from the date of its

2

Order to review Plaintiff’s medical records and substantively address her request to be sent

3

to the hospital. (Id. at 3.)

4

Plaintiff once again fails to set forth sufficient facts and evidence to carry her burden

5

of showing she is entitled to preliminary injunctive relief, including that she faces

6

irreparable harm. As Defendants note, the HNRs Plaintiff provides all contain responses

7

from medical staff, most of them indicating either that they are duplicate requests, that

8

Plaintiff was scheduled to see a provider or was seen on the nurse line, or that there were

9

no unmet medical orders for Plaintiff to receive a particular type of catheter, as Plaintiff

10

had claimed. (See Doc. 69-1 at 20−35.)

11

Plaintiff did not file a Reply to Defendants’ Response, and she does not otherwise

12

dispute that she has consistently been seen by medical staff in response to her urinary

13

complaints.1 Plaintiff also does not claim or provide any evidence to support that Dr. Hall

14

made any adverse findings during Plaintiff’s off-site urology consult or that Dr. Hall

15

ordered any care that Defendants have failed to provide. At most, Plaintiff makes a credible

16

claim that Dr. Hall requested a follow up appointment, which Centurion had not yet

17

provided at the time Plaintiff filed her Motion. But there is no evidence to suggest that

18

Plaintiff required an urgent follow up; nor is there any evidence that her urologist ever

19
20
21
22
23
24
25
26
27
28

1

During the time allotted for a Reply, Plaintiff twice filed affidavits, either repeating
or adding factual claims to those she made in her Motion. (See Docs. 82, 84.) Plaintiff
should be aware that, unless attached to a properly filed Motion or to a response or reply
brief, neither Defendants nor the Court can readily determine the intent of such filings in
order to fashion a proper response; nor will the Court search the entire docket for additional
filings that could potentially support Plaintiff’s Motion. To the extent she intended her
affidavits to serve as her Reply, Plaintiff should also be aware that the purpose of a Reply
is to address the arguments Defendants make in their Response, not to add new facts or
evidence not already provided in a Motion. See Padgett v. Wright, 587 F.3d 983, 985 n.2
(9th Cir. 2009) (per curiam) (the court will not consider arguments raised for the first time
in a reply brief); United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006) (recognizing
the general principle that arguments raised for the first time in a reply brief are waived);
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (arguments raised for first
time in reply brief are not considered).
-4-

1

prescribed a urostomy or that she otherwise requires hospitalization to address her urinary

2

complaints. On this record, Plaintiff has not shown that she faces irreparable harm or that

3

the relief she requests is narrowly drawn to address any particular harm, and the Court will

4

deny without prejudice the Motion for Preliminary Injunction.

5

B.

6

The Court will additionally summarily deny Plaintiff’s Motion for Court Ordered

7

Examination. In this Motion, Plaintiff seeks a Court ordered medical examin to evaluate

8

her bladder condition. (Doc. 103 at 1.) She vaguely claims, without any evidence, that

9

“multiple urologists have made recommendations[,] and Defendants have not done

10

anything.” (Id.) She also claims that she has submitted multiple HNRs about her “extreme

11

hard time using the bathroom,” and Defendants “do nothing.” (Id.) These bare allegations

12

are once again insufficient to carry Plaintiff’s burden of persuasion as to any of the Winter

13

factors. Moreover, as noted above, the evidence does not support that Defendants have

14

done nothing to address Plaintiff’s bladder complaints; rather, the evidence shows that

15

Plaintiff has consistently been seen by medical staff in response to her HNRs and she had

16

an off-site consultation with a urologist to address her bladder complaints. Based on this

17

record, it appears that the relief Plaintiff requests is already being provided, and Plaintiff

18

does not show that she faces irreparable harm absent the “extraordinary remedy” of the

19

Court’s intervention.

Motion for Court Ordered Examination

20

IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to

21

Plaintiff’s Motion for Preliminary Injunction (Doc. 69) and Motion for Court Ordered

22

Examination of Plaintiff (Doc. 103), and both Motions are denied.

23

Dated this 19th day of November, 2020.

24
25
26
27
28

-5-