Garcia v. Joaquin et al

Filing 38

ORDER Adopting 28 Findings and Recommendations 28 and Denying Motions for Temporary Restraining Order 4 , 12 , signed by Chief Judge Anthony W. Ishii on 9/11/11. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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VICENTE GARCIA,

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CASE NO. 1:10-cv-730-AWI-MJS (PC)
Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
MOTIONS FOR TEMPORARY
RESTRAINING ORDER

v.
A. JOAQUIN, et al.,

(ECF Nos. 4, 12 & 28)
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Defendants.
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Plaintiff Vincente Garcia, a state prisoner proceeding pro se and in forma pauperis, has filed

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this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 27, 2010 and June 24, 2010, Plaintiff filed motions for a Temporary Restraining

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Order. On February 18, 2011, the Magistrate Judge filed a Findings and Recommendation

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recommending that Plaintiff’s motions for a Temporary Restraining Order be denied. (ECF No. 28.)

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Plaintiff filed lengthy objections to the Findings and Recommendation, with detailed information

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about the care he is receiving for his diabetes. On July 15, 2011, Plaintiff filed a Motion to Shorten

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Time for the court to rule on Plaintiff’s motions for Temporary Restraining Order.

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Plaintiff contends that he is likely to succeed on his claims and that his problem with the care

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he is being provided amounts to more than a mere disagreement and amounts to deliberate

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indifference. However, the additional documentation supplied by Plaintiff in support of his

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objections shows that he is receiving substantial medical care and institutional support for his

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diabetes management. It is apparent that the staff is struggling to effectively manage Plaintiff’s

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diabetes; but such difficulty does not necessarily amount to deliberate indifference to the condition.
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See Wilson v. Woodford, 2009 WL 839921, *13 (E.D. Cal. March 30, 2009) (disagreement with

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diabetes care is not deliberate indifference). Nor is it deliberate indifference because his treating

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physicians disagree about the appropriate course of treatment. See Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). In order to succeed on his Eighth Amendment claim, Plaintiff must

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show that his treating physicians are choosing a course of treatment “in conscious disregard of an

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excessive risk to [his] health.” Id. at 1058. At this stage in the litigation, the Court cannot find that

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Plaintiff is likely to succeed on this front.

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Plaintiff’s condition is life threatening and not currently stabilized, Plaintiff is not entitled to a

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temporary restraining order. There remains no evidence that the treatment changes Plaintiff seeks

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Even if the court were to accept as evidence that

would stabilize Plaintiff’s condition.

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The cases Plaintiff cites that granted relief to diabetic prisoners do not change the result.

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Gaddis v. Campbell, 301 F.Supp.2d 1310 (M.D.Ala. 2004) concerned whether a class action

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settlement agreement was fair, adequate, and reasonable. Id. at 1316. And, in Johnson v. Harris,

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479 F.Supp. 333 (D.C.N.Y. 1979), the evidence was undisputed that the plaintiff needed to be given

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an appropriate diet to control his diabetics. Id. at 335. Accordingly, injunctive relief is not

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warranted.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 305, this Court

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has conducted a de novo review of this case. In sum, having carefully reviewed the entire file, the

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Court finds the Findings and Recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendation, filed February 18, 2011, is adopted in full;

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2.

Plaintiff’s Motions for Temporary Restraining Order are DENIED without prejudice;

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and
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Plaintiff’s Motion to Shorten Time is DENIED as moot.

IT IS SO ORDERED.

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Dated:
0m8i78

September 11, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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