Herrera v. Rouch

Filing 29

FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 21 25 Motions for a Preliminary Injunction be Denied; Objections Due within Fourteen Days signed by Magistrate Judge Michael J. Seng on 12/13/2013. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/2/2014. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO HERRERA, 12 Plaintiff, 13 v. 14 ROUCH, 15 CASE No. 1:13-cv-00289-LJO-MJS FINDINGS AND RECOMMENDATION THAT PLAINTIFF‟S MOTIONS FOR A PRELIMINARY INJUNCTION BE DENIED (ECF Nos. 21 and 25) Defendant. 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17 I. PROCEDURAL HISTORY 18 Plaintiff Roberto Herrera is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The 20 21 operative pleading is Plaintiff‟s Second Amended Complaint, filed August 28, 2013 (ECF No. 17), against Defendant Rouch for deliberate indifference to Plaintiff‟s serious medical 22 need in violation of the Eighth Amendment. 23 On September 20, 2013 and October 17, 2013 Plaintiff filed motions seeking a 24 preliminary injunction. (ECF Nos. 21 and 25.) Plaintiff claims he suffers from chronic 25 pain and has been denied effective medication and thermal underwear needed for pain 26 relief. He requests a court order directing the Defendant to resolve Plaintiff‟s medical 27 issues. (Id.) 28 1 1 2 Defendant filed a response on November 13, 2013. (ECF No. 26.) According to 3 Defendant, Plaintiff‟s request for additional medication was reviewed on October 18, 4 2013 by a committee of medical professionals. The committee determined Plaintiff‟s 5 current medication was appropriate. Defendant also notes that Corcoran State Prison 6 (Corcoran) does not issue medical chronos for thermal underwear because they are not 7 considered medical items. Plaintiff is, however, free to purchase thermal underwear, 8 receive them from others, or submit a non-medical appeal to prison staff if he has no 9 other means of obtaining them. Moreover, Defendant notes, “A review of Plaintiff‟s 10 property inventory dated July 8, 2013, indicated that, as of that date, Plaintiff was in 11 possession of a thermal top and two thermal bottoms.” (Id. at 2.) 12 Plaintiff filed a reply on December 2, 2013. (ECF No. 27.) In it he concedes that 13 he has thermal underwear, but notes that they are four years old and in need of 14 replacement. Plaintiff disputes Defendant‟s characterization of thermal underwear as a 15 non-medical item.. 16 underwear he currently possesses were authorized via medical chrono. 17 Plaintiff reiterates that the current prescribed medication is not effectively treating his 18 chronic pain. 19 II. Documents attached to Plaintiff‟s reply indicate that the thermal (Id. at 19.) SUMMARY OF CLAIMS 20 Plaintiff has a medical condition that required having metal devices implanted into 21 one of his legs. The condition and implants cause chronic pain that worsens in cold 22 weather. On February 15, 2013, Plaintiff approached health care staff member Rouch 23 and requested a chrono for thermal underwear. 24 medication was not effective. Defendant Rouch refused to do anything for Plaintiff‟s 25 pain, stating “„there is nothing I can do for you.‟” Rouch then left Plaintiff in “severe pain 26 and suffering.” Plaintiff has yet to receive treatment. (Am. Compl. at 3.) 27 28 2 He also mentioned that his pain 1 III. LEGAL STANDARD FOR INJUNCTIVE RELIEF Injunctive relief, whether temporary or permanent, is an “extraordinary remedy 2 3 4 never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 5 (2008). The standards for a temporary restraining order are essentially the same as that 6 for a preliminary injunction. “A plaintiff seeking a preliminary injunction must establish 7 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 8 absence of preliminary relief, that the balance of equities tips in his favor, and that an 9 injunction is in the public interest.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 10 F.3d 1046, 1052 (9th Cir. 2009), quoting Winter, 555 U.S. at 20. An injunction may only 11 be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 U.S. 12 at 22. 13 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of 14 the Prison Litigation Reform Act (“PLRA”), which requires that the Court find the “relief 15 [sought] is narrowly drawn, extends no further than necessary to correct the violation of 16 the Federal right, and is the least intrusive means necessary to correct the violation of 17 the Federal right.” Injunctive relief is to be granted “sparingly, and only in [ ] clear and plain case[s].” 18 19 Rizzo v. Goode, 423 U.S. 362, 378 (1976). 20 IV. ANALYSIS 21 As mentioned above, the Court has determined that Plaintiff‟s Second Amended 22 Complaint states a cognizable Eighth Amendment claim against the Defendant. There is 23 some likelihood of success on the merits. 24 However, the Court is not persuaded that Plaintiff is likely to suffer irreparable 25 harm in the absence of an injunction. Plaintiff “must establish that irreparable harm is 26 likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild 27 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citing Winter, 555 U.S. at 22). 28 Defendant asserts that a non-medical appeal is the proper method for requesting 3 1 thermal underwear and that Plaintiff has not filed such a request. Plaintiff replies that a 2 medical appeal was acceptable the last time he sought thermal underwear. Plaintiff 3 does not deny that he has not filed a non-medical request for thermal underwear. It 4 appears that Plaintiff need only file a non-medical appeal for thermal underwear and it 5 will be considered. Under the circumstances, injunctive relief is not “the least intrusive 6 means necessary to correct the violation of the Federal right.” 7 3626(a)(1)(A). Plaintiff, through the inmate appeal process, has a means to remedy the 8 thermal underwear issue on his own. 18 U.S.C. § 9 Plaintiff has also failed to demonstrate that, absent an injunction, his current 10 medication will cause irreparable harm. Plaintiff‟s medication was reviewed October 18, 11 2013 and found by medical professionals to be sufficient. Plaintiff simply disagrees with 12 the professional opinion. 13 Plaintiff does not address the balance of equities or the public interest 14 components. His disagreement with the treatment decisions of the Defendant, without 15 more, is not sufficient to establish these elements. 16 Injunctive relief is “an extraordinary remedy that may only be awarded upon a 17 clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. Plaintiff 18 has not clearly shown that he is entitled to injunctive relief. 19 V. CONCLUSION AND ORDER 20 Plaintiff fails to provide facts which would enable the Court to find that he is in 21 need of, and entitled to, injunctive relief. Accordingly, for the reasons stated above the 22 Court RECOMMENDS that Plaintiff's motions for a preliminary injunction (ECF Nos. 21 23 and 25) be DENIED without prejudice. 24 This Findings and Recommendation is submitted to the assigned United States 25 District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72- 26 304 of the Local Rules of Practice for the United States District Court, Eastern District of 27 California. Within fourteen (14) days after being served with a copy, any party may file 28 written objections with the court and serve a copy on all parties. Such a document 4 1 should be captioned “Objections to Magistrate Judge's Findings and Recommendation.” 2 The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 3 636(b)(1)(C). The parties are advised that failure to file objections within the specified 4 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 5 1153 (9th Cir. 1991). 6 7 8 IT IS SO ORDERED. Dated: December 13, 2013 /s/ 9 UNITED STATES MAGISTRATE JUDGE DEAC _Signature- END: 10 Michael J. Seng ci4d6 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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