Foster v. Enenmoh et al

Filing 62

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's Motion for a Preliminary Injunction be Denied 47 , signed by Magistrate Judge Sheila K. Oberto on 4/13/12. Referred to Judge O'Neill. Thirty Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL LOUIS FOSTER,

CASE NO. 1:08-cv-01849-LJO-SKO PC

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S MOTION
FOR A PRELIMINARY INJUNCTION BE
DENIED

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v.
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A. ENENMOH,
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(Doc. 47)
Defendant.

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THIRTY-DAY OBJECTION PERIOD
/

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Findings and Recommendations Recommending Denial of Motion
I.

Introduction

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Plaintiff Michael Louis Foster, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on December 3, 2008. This action is proceeding

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on Plaintiff’s second amended complaint, filed on September 17, 2009, against Defendant Enenmoh

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for violation of the Eighth Amendment of the United States Constitution. During the events in

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question, Defendant was a staff physician and then Chief Medical Officer at California Substance

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Abuse Treatment Facility and State Prison in Corcoran, California. Plaintiff’s claim arises out of

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Defendant’s alleged failure to provide him with Metamucil for constipation, which had been

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effective and which without he suffers deteriorating health and severe pain.

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On December 29, 2011, Plaintiff filed a motion seeking a preliminary injunction mandating

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that Warden Kathleen Allison and Defendant provide him with Metamucil and dietary

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supplementation consisting of one apple and one bag of almond slices in the morning and in the

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evening. Defendant filed an opposition on January 26, 2012.
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II.

Legal Standard

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365 (2008) (citations omitted).

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 555 U.S.

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at 24 (citation omitted). Rather, it “may only be awarded upon a clear showing that the plaintiff is

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entitled to such relief.” Id. at 22 (citation omitted).

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III.

Discussion

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Plaintiff alleges that he has chronic constipation and he was using Metamucil with success.

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(Doc. 21, 2nd Amend. Comp.) However, in 2006, Plaintiff was given fiber tablets rather than

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Metamucil. (Id.) Plaintiff complained to Defendant that the fiber tablets did not work and his

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condition had worsened, but Defendant informed Plaintiff that he could no longer receive Metamucil

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because it was non-formulary. (Id.) Plaintiff continued to complain about constipation and to

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request Metamucil. (Id.) Plaintiff’s medical condition continued to worsen, but Defendant still

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refused to provide Metamucil. (Id.) Plaintiff now seeks a preliminary injunction mandating the

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provision of Metamucil, apples, and almonds. (Doc. 47, Motion.)

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At the pleading stage, Plaintiff’s factual allegations must be accepted as true and construed

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in the light most favorable to him, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009);

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Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), but to prevail on a motion for preliminary

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injunctive relief, Plaintiff is required to submit admissible evidence supporting his contention that

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he is entitled to the relief he seeks, Winter, 555 U.S. at 20-22. For the reasons set forth below, the

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Court finds that Plaintiff has not demonstrated he is likely to succeed on the merits and without the

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issuance of the injunction, he is likely to suffer irreparable harm. In light of those findings, the Court

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does not reach whether the balance of equities tips in his favor or whether the injunction is in the

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public interest.

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To maintain an Eighth Amendment claim based on medical care in prison, Plaintiff must

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show deliberate indifference to his serious medical needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th
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Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)) (quotation marks

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omitted). The two-part test for deliberate indifference requires Plaintiff to show (1) a serious

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medical need by demonstrating that failure to treat his condition could result in further significant

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injury or the unnecessary and wanton infliction of pain, and (2) Defendant’s response to the need was

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deliberately indifferent. Jett, 439 F.3d at 1096 (quotation marks and citation omitted). Deliberate

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indifference is shown by a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need, and harm caused by the indifference. Id. (citation and quotation marks omitted).

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Neither a difference of opinion between medical personnel regarding treatment, Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989), nor a difference of opinion between Plaintiff and Defendant

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regarding treatment will support a claim, Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Rather, Plaintiff must show that the course of treatment chosen was medically unacceptable under

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the circumstances and that it was chosen in conscious disregard of an excessive risk to his health.

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986).

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While Plaintiff alleges chronic constipation and a medical need for Metamucil over all other

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medications provided, Plaintiff has not submitted any admissible evidence that he has a serious

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medical need for which only Metamucil will suffice and that in providing medications other than

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Metamucil, Defendant is choosing a medically unacceptable course of treatment in conscious

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disregard of Plaintiff’s health. The medical records submitted by Plaintiff indicate that several

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doctors have requested or recommended that Plaintiff be provided with Metamucil because the fiber

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tablets were reportedly ineffective, Fed. R. Evid. 803(4), 901(b)(4), but that evidence falls well short

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of the demonstrating more than a difference of opinion between Plaintiff and Defendant or between

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physicians, and Plaintiff’s lay opinion on these matters is inadmissable, Fed. R. Evid. 701, 702.

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(Exs. D, E, F, I, K, N.)

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In his opposition, Defendant states that Metamucil became non-formulary in 2007, which

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means that it cannot be prescribed unless approved by a chief medical officer. (Doc. 50, Opp.,

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Enenmoh Dec., ¶2.) Non-formulary drugs are approved if there is a medical indication for them and

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the alternatives have been proven not to work, a situation in which Defendant regularly prescribes

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non-formulary drugs. (Id.) However, it is the opinion of both Defendant and Dr. Barnett, licensed
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physicians, that based on the constancy of Plaintiff’s weight and the normalcy of his physical

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examinations and test results, there is no medical indication that Plaintiff’s constipation is a serious

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medical need and there is no basis in fact for Plaintiff’s claim that Metamucil uniquely works.

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(Barnett Dec., ¶¶3, 4, 9-11; Enenmoh Dec., ¶¶3-7.) Rather, Plaintiff has been provided with other

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medications, some of which adequately addressed his condition, and it is the medical opinion of both

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Defendant and Dr. Barnett that if Plaintiff would cooperate, the therapies provided to him would

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likely be effective. (Barnett Dec., ¶12; Enenmoh Dec., ¶6.) Further, both opine that the diet offered

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by the prison provides sufficient fiber. (Barnett Dec., ¶13; Enenmoh Dec., ¶7.)

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In sum, there is evidence in the record demonstrating that Plaintiff’s medical needs are not

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being ignored. As Plaintiff has not met his burden of demonstrating the likelihood of success on the

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merits and the likelihood of irreparable harm in the absence of relief, his motion must be denied.

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IV.

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Recommendation
Based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s motion for a

preliminary injunction, filed on December 29, 2011, be DENIED.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

April 13, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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