Beitman v. Correct Clear Solutions et al

Filing 215

ORDER that Plaintiff's Motion for Injunctive Relief (Doc. 208 ) is denied. See the attached order for additional information. Signed by Senior Judge James A. Teilborg on 1/4/2022. (RMW)

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JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT

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OF ARIZONA

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Lee Michael Beitman,

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No. CV 17-08229-PCT-JAT

Plaintiff,
vs.

ORDER

Correct Care Solutions, et al.,

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Defendants.

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Plaintiff Lee Michael Beitman, who is confined in the Arizona State Prison

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Complex (ASPC)-Florence, South Unit, brought this pro se civil rights action under 42

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U.S.C. § 1983 asserting Eighth Amendment medical care claims against multiple

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Defendants. (Doc. 35.) On September 16, 2021, the Court issued an Order granting in

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part and denying in part three summary judgment motions and dismissing six Defendants.

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(Doc. 198.) Following that Order, the remaining Defendants are Nurse Practitioners

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(NPs) Stephanie Herrick and Betty Hahn. (Id.) A settlement conference is set for

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January 11, 2022, and trial is set for April 18, 2022. (Docs. 201, 209.) Before the Court

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is Beitman’s Motion for Injunctive Relief, which NP Hahn opposes. (Docs. 208, 211.)

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The Court will deny Beitman’s Motion.

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I.

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Background
In Count One of his Third Amended Complaint, Beitman alleged that in February

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2016, while he was housed at the GEO private prison in Kingman Arizona, he was

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assaulted by another prisoner and punched in the side of the face, which caused him to

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suffer a displaced jaw, a pushed-in cheek bone, and severe pain. (Doc. 35 at 4.) Beitman

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alleged that NP Herrick failed to provide adequate treatment for his injuries and was

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deliberately indifferent to his serious medical needs. (Id. at 7–8.)

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In Count Two, Beitman alleged that for years he was denied proper medication

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and proper medication dosages to treat his low testosterone levels despite lab tests and

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prior medical records confirming his low testosterone levels. (Doc. 35 at 9–11.) Beitman

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alleged that NP Hahn failed to properly treat his hormone condition, and, consequently,

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Beitman suffered secondary problems including pain, cramping, and spine deterioration.

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(Id. at 10–11.)

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In his Motion for Injunctive Relief, Beitman states that, currently, his testosterone

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and DHEA hormone levels are normal, and his testicular atrophy has ceased. (Doc. 208

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at 2.) Beitman now seeks HCG (human chorionic gonadotropin) hormone treatment to

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repair the testicular atrophy suffered during the time he was denied proper treatment.

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(Id.) According to Beitman, when he suffered testicular atrophy 34 years ago, HCG was

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successful in repairing the damage. (Id. at 2–3.) Beitman alleges that he made his

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request for HCG to NP Weigel, but she was told by the Medical Director that HCG

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would not help Beitman, and the Medical Director also refused Humatropin and

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Sermorelin treatment for Beitman’s muscles. (Id. at 3.) Beitman requests an injunction

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to receive the HCG treatment and treatment for muscle mass loss from his private

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physician, Dr. Paul Stallone. (Id. at 4; Doc. 213 at 4.)

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NP Hahn filed an opposition to Beitman’s Motion. (Doc. 211.) NP Hahn asserts

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that that she no longer treats Beitman, the only remaining claim is a damages claim

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against her, no ripe injunctive relief request remains in the lawsuit, and Beitman failed to

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demonstrate the required Winter factors. (Id.)

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II.

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Preliminary Injunctive Standard
A plaintiff seeking a preliminary injunction must show that (1) he is likely to
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succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction,

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(3) the balance of equities tips in his favor, and (4) an injunction is in the public interest.

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “But if a plaintiff can

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only 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” version of the sliding-scale test, the elements

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of the preliminary injunction test are balanced, so that a stronger showing of one element

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may offset a weaker showing of another. See Alliance for the Wild Rockies, 632 F.3d at

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1135. 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).

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Where a plaintiff seeks a mandatory injunction, rather than a prohibitory

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injunction, injunctive relief is “subject to a higher standard” and is “permissible when

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‘extreme or very serious damage will result’ that is not ‘capable of compensation in

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damages,’ and the merits of the case are not ‘doubtful.’” Hernandez v. Sessions, 872

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F.3d 976, 999 (9th Cir. 2017) (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). Further, under the Prison Litigation

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Reform Act, injunctive relief must be narrowly drawn and the least intrusive means

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necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State

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

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III.

Discussion

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In its Summary Judgment Order, the Court found that Beitman demonstrated that

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his low testosterone condition constituted a serious medical need and that there was a

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question of fact as to whether NP Hahn was deliberately indifferent to his serious medical

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need in violation of the Eighth Amendment. (Doc. 198 at 26, 38.). See Jett v. Penner,
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439 F.3d 1091, 1096 (9th Cir. 2006) (to support a medical care claim under the Eighth

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Amendment, a prisoner must demonstrate “deliberate indifference to serious medical

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needs”) (citation omitted). Therefore, for the purposes of the pending Motion, the Court

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will assume that Beitman has, at the least, demonstrated serious questions going to the

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merits of his claim in Count Two, thereby satisfying the first Winter factor.

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The second Winter factor requires Beitman to demonstrate that, absent an

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injunction, he will be exposed to irreparable harm. Caribbean Marine Servs. Co., Inc. v.

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Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); see Winter, 555 U.S. at 22. “[T]here must

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be a presently existing threat of harm, although injury need not be certain to occur.”

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Villaneuva v. Sisto, CIV S-06-2706 LKK EFB P, 2008 WL 4467512, at *3 (E.D. Cal.

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Oct. 3, 2008) (citing FDIC v. Garner, 125 F.3d 1272, 1279–80 (9th Cir. 1997)).

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Speculative injury is not irreparable injury sufficient for a preliminary injunction.

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Caribbean Marine, 844 F.2d at 674. To support a mandatory preliminary injunction for

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specific medical treatment, a plaintiff must demonstrate ongoing harm or the present

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threat of irreparable injury, not a past injury. See Conn. v. Mass., 282 U.S. 660, 674

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(1931) (an injunction is only appropriate “to prevent existing or presently threatened

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injuries”); Caribbean Marine, 844 F.2d at 674.

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Delays in necessary treatment and pain can constitute irreparable harm.

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Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004) (irreparable harm includes delayed

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and/or complete lack of necessary treatment, and increased pain). In addition to physical

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harm, serious psychological harm may constitute irreparable injury. See, e.g., Thomas v.

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Cnty. of Los Angeles, 978 F.2d 504, 512 (9th Cir. 1992) (“[p]laintiffs have also

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established irreparable harm, based on this Court’s finding that the deputies’ actions have

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resulted in irreparable physical and emotional injuries to plaintiffs and the violation of

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plaintiffs’ civil rights”); Chalk v. U.S. Dist. Ct. Cent. Dist. of California, 840 F.2d 701,

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709 (9th Cir. 1988) (the plaintiff’s “emotional stress, depression and reduced sense of

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well-being” constituted irreparable harm).

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See

Beitman argues that treatment with Humatropin and Sermorelin is needed to
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reverse damage from muscle mass loss. (Doc. 213 at 4.) He further argues that he

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“believes that there is a great possibility of becoming sterile from not reversing the

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testicular atrophy and that being refused treatment would cause irreparable harm and

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permanent damage[.]” (Id.)

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Beitman’s desire to rebuild lost muscle mass does not satisfy the irreparable harm

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element. He refers only to a past injury and fails to identify any present or existing injury

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connected to lost muscle mass. Beitman’s belief that there is a “great possibility” of

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becoming sterile absent HCG hormone treatment also fails to satisfy the irreparable harm

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element.

Beitman alleges only speculative injury based on his belief, not medical

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evidence.

He presents no allegations of current symptoms or pain that constitute

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irreparable harm necessary for an injunction. Because Beitman fails to meet his burden

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on the second Winter factor, his Motion for Injunctive Relief will be denied.

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IT IS ORDERED that Plaintiff’s Motion for Injunctive Relief (Doc. 208) is
denied.
Dated this 4th day of January, 2022.

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