Hernandez v. Kokor et al

Filing 47

FINDINGS and RECOMMENDATIONS to Deny 38 Request for Temporary Restraining Order and Preliminary Injunction signed by Magistrate Judge Michael J. Seng on 09/25/2017. Referred to Judge Drozd; Objections to F&R due by 10/13/2017.(Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARINO ANTONIO HERNANDEZ 11 12 Plaintiff, v. 13 WINFRED M. KOKOR, et al., 14 Defendants. 1:16-cv-00716-DAD-MJS (PC) FINDINGS AND RECOMMENDATION TO DENY REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (ECF No. 38) FOURTEEN DAY OBJECTION DEADLINE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Marino Antonio Hernandez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s Eighth Amendment medical indifference claim against Defendants Dr. Kokor and Nurse Stronach for denying him treatment for chronic left ankle pain. (ECF No. 1) On June 19, 2017, Plaintiff filed a motion for a temporary restraining order and preliminary injunction directing Defendants to provide “medically appropriate” treatment, appropriate pain medication, and a physical examination. (ECF No. 38.) He seeks treatment for pain in his left ankle and also now for more recent groin and leg pain from hernia surgery. Defendants did not file an opposition and the time to do so has passed. The matter is submitted. Local Rule 230(l). 1 1 I. Legal Standard 2 The purpose of a temporary restraining order is to preserve the status quo before 3 a preliminary injunction hearing may be held; its provisional remedial nature is designed 4 merely to prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v. 5 Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil 6 Procedure 65, a temporary restraining order may be granted only if “specific facts in an 7 affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or 8 damage will result to the movant before the adverse party can be heard in opposition.” 9 Fed. R. Civ. P. 65(b)(1)(A). 10 The analysis for a temporary restraining order is substantially identical to that for a 11 preliminary injunction, Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 12 240 F.3d 832, 839 n.7 (9th Cir. 2001), and “[a] preliminary injunction is an extraordinary 13 remedy never awarded as of right,” Winter v. Natural Resources Defense Council, Inc., 14 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a preliminary injunction must 15 establish that he is likely to succeed on the merits, that he is likely to suffer irreparable 16 harm in the absence of preliminary relief, that the balance of equities tips in his favor, 17 and that an injunction is in the public interest.” Id. at 20 (citations omitted). A preliminary 18 injunction may issue where the plaintiff demonstrates the existence of serious questions 19 going to the merits and the hardship balance tips sharply toward the plaintiff, assuming 20 the other two elements of the Winter test are also met. Alliance for the Wild Rockies v. 21 Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under either formulation of the 22 principles, preliminary injunctive relief should be denied if the probability of success on 23 the merits is low. See Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 24 (9th Cir. 1995) (even if the balance of hardships tips decidedly in favor of the moving 25 party, it must be shown as an irreducible minimum that there is a fair chance of success 26 on the merits). 27 An injunction may only be awarded upon a clear showing that the plaintiff is 28 entitled to relief. Id. at 22 (citation omitted) (emphasis added). In addition, in cases 2 1 brought by prisoners involving conditions of confinement, any preliminary injunction must 2 be narrowly drawn, extend no further than necessary to correct the harm the court finds 3 requires preliminary relief, and be the least intrusive means necessary to correct the 4 harm. 18 U.S.C. § 3626(a)(2). 5 II. Discussion 6 Plaintiff’s complaint alleged that Dr. Kokor and Nurse Stronach continued to 7 prescribe Plaintiff Tylenol 3 for ankle pain despite knowing that it did not alleviate his 8 pain but instead caused adverse side effects. The Court found that Plaintiff’s allegations 9 were sufficient to warrant service of the complaint on Defendants. (ECF Nos. 15 & 19.)1 10 In the instant motion, Plaintiff now alleges that in addition to continuing ankle pain, a 11 January 8, 2016 hernia surgery has left him with pain in his groin, leg, and back, and 12 possibly an infection, and he alleges Dr. Kokor has failed to address these new issues. 13 (ECF No. 38 at 5-7.) As noted, Plaintiff here asks the Court order that he be provided 14 “medically appropriate” treatment, appropriate pain medication, and a physical 15 examination 16 Plaintiff argues that he has shown a high likelihood of success on the merits of his 17 claim that Defendants’ conduct constitutes deliberate indifference. He seems to believe 18 that passing through screening reflects a likelihood of success. However, there has been 19 no finding that the care Plaintiff received was constitutionally inadequate. Indeed, the 20 case remains in its early stages, there have been no dispositive motions filed, and 21 Plaintiff still carries the burden of proving that his constitutional rights were in fact 22 violated. The screening order simply reflects the conclusion that if all the facts prove to 23 be as Plaintiff alleges them, they could support a finding of medical indifference. There 24 is no finding with regard to likelihood of success. 25 Plaintiff claims he is threatened with irreparable harm, in that his continued pain 26 has affected the movement and function of his leg, and he fears that he “may never walk 27 1 28 Plaintiff’s remaining Defendants and claims, including his prayer for the reinstatement of his morphine prescription, were dismissed. (ECF No. 19.) 3 1 normally again.” It appears from Plaintiff’s supporting documentation that Plaintiff 2 receives regular medical attention and has been prescribed a plethora of medications. 3 (See, e.g., Primary Care Provider (“PCP”) Progress Note dated Jan. 12, 2016 (ECF No. 4 38 at 18); PCP Progress Note dated Feb. 1, 2016 (id. at 22); RN Encounter Form dated 5 Mar. 18, 2016 (id. at 30-31); PCP Progress Note dated Jun. 21, 2016 (id. at 36); RN 6 Encounter Form dated Jul. 11, 2016 (id. at 39-40); PCP Progress Note dated Oct. 18, 7 2016 (id. at 43); RN Encounter Form dated Nov. 18, 2016 (id. at 45-6); RN Encounter 8 Form dated Dec. 21, 2016 (id. at 48-9); PCP Progress Note dated Jan 5, 2017 (id. at 9 51)). That Plaintiff disagrees with the course of treatment he received, or still suffers pain 10 in spite of that treatment, is not enough to support Court’s intervention into the prison 11 medical staff’s course of treatment. See Jackson v. MacIntosh, 90 F.3d 330, 332 (9th 12 Cir. 1996) (a mere disagreement over treatment plans is insufficient to invoke section 13 1983); see also Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (disapproving the 14 involvement of federal courts in the day-to-day-management of prisons)). Suffice it to 15 say, Plaintiff “has not sufficiently demonstrated that he is currently receiving a level of 16 care that would violate constitutional standards such that he is entitled to preliminary 17 injunctive relief.” McSorley v. N. Nevada Corr. Ctr., 225 F. App'x 448, 449 (9th Cir. 18 2007). In any case, Plaintiff, a layman, is not qualified to diagnose himself, dictate the 19 appropriate treatment plan, or predict his long-term prognosis. 20 Plaintiff next argues the balance of hardships tips in favor, as he suffers pain and, 21 on the other hand, his motion asks only that Defendants provide adequate medical care 22 for that pain. His assessment is incorrect. While the prospect of continued suffering tips 23 the balance toward Plaintiff, his relief, if requested, would require the Court to wrest 24 medical decision-making authority away from those most qualified to dispense it. Plaintiff 25 essentially asks the Court to substitute its untrained judgment for that of medical 26 personnel trained to treat his myriad non-life threatening ailments. This is not an instance 27 where Plaintiff has been deprived of all medical treatment, but rather where he, also an 28 4 1 untrained layman, prefers a different course of treatment. The balance of hardships 2 does not tip far enough in Plaintiff’s favor to demand the Court intervene so radically. 3 Finally, Plaintiff argues the relief sought will serve the public interest because it is 4 always in the public interest for prison officials to obey the law. That assumes the 5 Defendants are disregarding law. There is no basis for such an assumption here. 6 This is not the first time Plaintiff has sought a preliminary injunction requiring the 7 prison to provide him with what he considers appropriate medical care, namely, narcotic 8 medications. Plaintiff does not have a constitutional right to receive narcotics. The Court 9 will not entertain such prayers for relief. 10 In sum, Plaintiff has not shown a likelihood of success on the merits, irreparable 11 harm, that the balance of equities is in his favor, or that an injunction is in the public 12 interest. See Fed. R. Civ. P. 65; Local Rule 231; Winter, 555 U.S. at 24. 13 14 Accordingly, IT IS HEREBY RECOMMENDED THATPlaintiff’s motion for a temporary restraining order and preliminary injunction be DENIED. 15 These Findings and Recommendations will be submitted to the United States 16 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 17 636(b)(l). Within fourteen (14) days after being served with these Findings and 18 Recommendations, the parties may file written objections with the Court. The document 19 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 20 The parties are advised that failure to file objections within the specified time may result 21 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 22 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 25 IT IS SO ORDERED. Dated: September 25, 2017 /s/ 26 UNITED STATES MAGISTRATE JUDGE 27 28 Michael J. Seng 5

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