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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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v.

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ROUCH,

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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.

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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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I.

PROCEDURAL HISTORY

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Plaintiff Roberto Herrera is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The
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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

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need in violation of the Eighth Amendment.
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On September 20, 2013 and October 17, 2013 Plaintiff filed motions seeking a
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preliminary injunction. (ECF Nos. 21 and 25.) Plaintiff claims he suffers from chronic
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pain and has been denied effective medication and thermal underwear needed for pain
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relief. He requests a court order directing the Defendant to resolve Plaintiff‟s medical

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issues. (Id.)
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Defendant filed a response on November 13, 2013. (ECF No. 26.) According to

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Defendant, Plaintiff‟s request for additional medication was reviewed on October 18,

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2013 by a committee of medical professionals. The committee determined Plaintiff‟s

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current medication was appropriate. Defendant also notes that Corcoran State Prison

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(Corcoran) does not issue medical chronos for thermal underwear because they are not

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considered medical items. Plaintiff is, however, free to purchase thermal underwear,

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receive them from others, or submit a non-medical appeal to prison staff if he has no

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other means of obtaining them. Moreover, Defendant notes, “A review of Plaintiff‟s

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property inventory dated July 8, 2013, indicated that, as of that date, Plaintiff was in

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possession of a thermal top and two thermal bottoms.” (Id. at 2.)

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Plaintiff filed a reply on December 2, 2013. (ECF No. 27.) In it he concedes that

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he has thermal underwear, but notes that they are four years old and in need of

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replacement. Plaintiff disputes Defendant‟s characterization of thermal underwear as a

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non-medical item..

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underwear he currently possesses were authorized via medical chrono.

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Plaintiff reiterates that the current prescribed medication is not effectively treating his

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chronic pain.

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II.

Documents attached to Plaintiff‟s reply indicate that the thermal
(Id. at 19.)

SUMMARY OF CLAIMS

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Plaintiff has a medical condition that required having metal devices implanted into

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one of his legs. The condition and implants cause chronic pain that worsens in cold

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weather. On February 15, 2013, Plaintiff approached health care staff member Rouch

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and requested a chrono for thermal underwear.

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medication was not effective. Defendant Rouch refused to do anything for Plaintiff‟s

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pain, stating “„there is nothing I can do for you.‟” Rouch then left Plaintiff in “severe pain

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and suffering.” Plaintiff has yet to receive treatment. (Am. Compl. at 3.)

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He also mentioned that his pain

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III.

LEGAL STANDARD FOR INJUNCTIVE RELIEF
Injunctive relief, whether temporary or permanent, is an “extraordinary remedy

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never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 24

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(2008). The standards for a temporary restraining order are essentially the same as that

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for a preliminary injunction. “A plaintiff seeking a preliminary injunction must establish

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that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

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absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559

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F.3d 1046, 1052 (9th Cir. 2009), quoting Winter, 555 U.S. at 20. An injunction may only

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be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 U.S.

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at 22.

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Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of

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the Prison Litigation Reform Act (“PLRA”), which requires that the Court find the “relief

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[sought] is narrowly drawn, extends no further than necessary to correct the violation of

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the Federal right, and is the least intrusive means necessary to correct the violation of

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the Federal right.”
Injunctive relief is to be granted “sparingly, and only in [ ] clear and plain case[s].”

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Rizzo v. Goode, 423 U.S. 362, 378 (1976).

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IV.

ANALYSIS

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As mentioned above, the Court has determined that Plaintiff‟s Second Amended

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Complaint states a cognizable Eighth Amendment claim against the Defendant. There is

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some likelihood of success on the merits.

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However, the Court is not persuaded that Plaintiff is likely to suffer irreparable

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harm in the absence of an injunction. Plaintiff “must establish that irreparable harm is

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likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citing Winter, 555 U.S. at 22).

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Defendant asserts that a non-medical appeal is the proper method for requesting
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thermal underwear and that Plaintiff has not filed such a request. Plaintiff replies that a

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medical appeal was acceptable the last time he sought thermal underwear. Plaintiff

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does not deny that he has not filed a non-medical request for thermal underwear. It

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appears that Plaintiff need only file a non-medical appeal for thermal underwear and it

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will be considered. Under the circumstances, injunctive relief is not “the least intrusive

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means necessary to correct the violation of the Federal right.”

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3626(a)(1)(A). Plaintiff, through the inmate appeal process, has a means to remedy the

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thermal underwear issue on his own.

18 U.S.C. §

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Plaintiff has also failed to demonstrate that, absent an injunction, his current

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medication will cause irreparable harm. Plaintiff‟s medication was reviewed October 18,

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2013 and found by medical professionals to be sufficient. Plaintiff simply disagrees with

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the professional opinion.

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Plaintiff does not address the balance of equities or the public interest

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components. His disagreement with the treatment decisions of the Defendant, without

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more, is not sufficient to establish these elements.

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Injunctive relief is “an extraordinary remedy that may only be awarded upon a

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clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. Plaintiff

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has not clearly shown that he is entitled to injunctive relief.

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V.

CONCLUSION AND ORDER

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Plaintiff fails to provide facts which would enable the Court to find that he is in

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need of, and entitled to, injunctive relief. Accordingly, for the reasons stated above the

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Court RECOMMENDS that Plaintiff's motions for a preliminary injunction (ECF Nos. 21

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and 25) be DENIED without prejudice.

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This Findings and Recommendation is submitted to the assigned United States

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District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-

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304 of the Local Rules of Practice for the United States District Court, Eastern District of

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California. Within fourteen (14) days after being served with a copy, any party may file

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written objections with the court and serve a copy on all parties. Such a document
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should be captioned “Objections to Magistrate Judge's Findings and Recommendation.”

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The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. §

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636(b)(1)(C). The parties are advised that failure to file objections within the specified

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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.
Dated:

December 13, 2013

/s/

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UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

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