Ortiz v. Reynolds et al

Filing 72

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/14/13 recommending that plaintiff's 04/29/13 motion for injunction 71 be denied. MOTION for injunction 71 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE B. ORTIZ,
Plaintiff,

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vs.

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No. 2:10-cv-1380 MCE EFB P

J. REYNOLDS, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Plaintiff filed on April 29, 2013 a document captioned “Addendum to Plaintiff’s

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Summary Judgment/Injunctive Relief.” Dckt. No. 71. He requests in that document that he be

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granted interim injunctive relief in the form of an order prohibiting prison doctors from

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discontinuing or altering her pain medication. For the reasons that follow, the undersigned

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recommends that the motion be denied.

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I.

Background
This action proceeds on the amended complaint filed on May 16, 2011. Dckt. No. 21. In

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the amended complaint, plaintiff asserts that defendant Miranda denied him adequate medical

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care in a variety of ways while plaintiff was housed at High Desert State Prison (“HDSP”). Id. at

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3-11.
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II.

Motion for Injunction
Plaintiff states in his filing that he is “having problems with Dr. W. Ulit,” who has

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refused to refill a necessary morphine prescription since April 21, 2013. Dckt. No. 71 at 1-2.

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Plaintiff complains that it is a “common approach” for prison medical staff to discontinue

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medications of inmates upon transfer to a new institution. Id. at 2. Plaintiff was transferred to

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California State Prison, Corcoran (“CSP-Corcoran”) earlier this year. Dckt. No. 65. Although

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plaintiff’s motion is not clear on this point, Dr. Ulit is apparently a medical care provider at CSP-

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Corcoran. Plaintiff asks the court to issue an order prohibiting prison doctors from discontinuing

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or overlooking his medication or refusing to refill it. Dckt. No. 71 at 2.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter,

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Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a

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party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

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and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127

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(9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 172

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L. Ed. 2d 249 (2008)). The Ninth Circuit has also held that the “sliding scale” approach it

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applies to preliminary injunctions—that is, balancing the elements of the preliminary injunction

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test, so that a stronger showing of one element may offset a weaker showing of

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another—survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622

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F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions going to the merits,’ and a

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hardship balance that tips sharply toward the plaintiff can support issuance of an injunction,

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assuming the other two elements of the Winter test are also met.” Id. In cases brought by
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prisoners involving conditions of confinement, any preliminary injunction “must be narrowly

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drawn, extend no further than necessary to correct the harm the court finds requires preliminary

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relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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Here, the injunction must be denied for the simple fact that it challenges conduct that is

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not a subject of this action and took place long after this action was filed. Plaintiff’s motion for

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preliminary injunction does not show serious questions going to the merits of this action because

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it relates solely to entirely different events. Dr. Ulit is not a party to the instant action, which

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was initiated in 2010, prior to plaintiff’s transfer to his current prison and consequent treatment

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by Dr. Ulit. Thus, the allegations contained in the motion for preliminary injunction are properly

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the subject of another lawsuit and cannot be cannot be adjudicated in this action, where they

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cannot be properly exhausted through the administrative appeals process and where the parties

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whom plaintiff seeks to enjoin are not before the court. See McKinney v. Carey, 311 F.3d 1198,

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1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th

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Cir. 2010) (together holding that claims must be exhausted prior to the filing of the original or

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supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist.

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LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011). To challenge the actions raised in the

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motion for injunction, plaintiff must follow the proper prison administrative channels and, if he

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does not obtain relief there, file a separate civil rights action. Accordingly, plaintiff's motion for

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preliminary injunctive relief must be denied.

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III.

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Recommendation
For all of the above reasons, it is RECOMMENDED that plaintiff’s April 29, 2013

motion for injunction (Dckt. No. 71) be denied.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 14, 2013.

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