Jones v. Sahota et al
Filing
53
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/30/11 ORDERING plaintiff's motion to amend his complaint is denied without prejudice. The clerk of the court shall mail plaintiff 1 USM-285 form and a cop y of the 02/09/11 pleading to be completed and returned within 30 days. The clerk of the court is directed to terminate docket entries 48 and 49 . Also, RECOMMENDING that plaintiff's motion for injunctive relief be denied, and the Clerk be directed to terminate docket entries 28 and 38 . MOTIONS 28 and 38 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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HENRY A. JONES,
Plaintiff,
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vs.
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No. CIV S-10-3206 MCE EFB P
SAHOTA, et al.,
Defendants.
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ORDER AND
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. This action currently proceeds on plaintiff’s first amended complaint, filed
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February 9, 2011. He has filed a second amended complaint which the court construes as a
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motion for leave to amend. He has also filed motions for injunctive relief, see Dckt. Nos. 45, 28,
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and 38, and has responded to the court’s August 12, 2011 order directing him to provide
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additional instructions for service on defendant Suharto. Additionally, plaintiff has filed a
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motion for appointment of counsel, which is addressed in a separate order. See Dckt. No. 37.
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Finally, plaintiff has filed a motion “resigning” as a pro se litigant and a motion seeking to
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amend his allegations against defendant Vasquez. Dckt. Nos. 48, 49.
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I.
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Motion “Resigning” as a Pro Se Litigant
On October 25, 2011, plaintiff filed a document styled “Motion Resigning as Pro Se
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Litigation for Medical Reasons.” Dckt. No. 48. Plaintiff writes that he is unable to litigate this
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case. Id. at 1. Plaintiff discusses mental and physical illnesses, his reading disability, and his
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lack of understanding of court papers and procedures. Id. However, it does not appear from this
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filing that plaintiff seeks to voluntarily dismiss this case. (If plaintiff does wish to dismiss his
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case, he may do so under Fed. R. Civ. P. 41(a).)
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Rather, plaintiff’s filing appears to be argument is support of a motion for the
appointment of counsel, which the court addresses in a separate order.
II.
Motion to Amend the Complaint
On October 4, 2011, plaintiff filed a document titled “amended complaint and motion re:
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injunctive relief,”1 containing new factual allegations against defendants Vasquez and
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Thompson, who have been dismissed from this action. See Dckt. Nos. 45, 40. The document
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does not contain all of the claims in plaintiff’s first amended complaint against defendants
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Sahota, Jaffe, Venderstyme, Suharto, and Jaffe. See Dckt. No. 45. Plaintiff writes, “I ask the
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court to grant my amended complaint and amend Vasquez to the suit.” Id. at 4. Additionally, on
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October 25, 2011, plaintiff filed a motion further amending his allegations against defendant
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Vasquez. Dckt. No. 49. The court construes plaintiff’s filings as motions to amend his
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complaint.
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Defendants oppose plaintiff’s motion to amend, arguing that any amendment would be
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futile because defendants Vasquez and Thompson have already been dismissed from this action.
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See Dckt. Nos. 47, 40.
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After a responsive pleading is filed, a party may amend its pleading only with the
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opposing party’s written consent or the court’s leave, which should be freely given “when justice
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The “injunctive relief” portions of plaintiff’s filing are addressed in the “Preliminary
Injunction” section of this order.
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so requires.” Fed. R. Civ. P. 15(a); Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d
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946, 951 (9th Cir. 2006) (“Rule 15(a) is very liberal and leave to amend ‘shall be freely given
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when justice so requires.’”). However, courts “need not grant leave to amend where the
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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
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delay in the litigation; or (4) is futile.” Id. Here, defendants had filed their responsive pleading
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before plaintiff filed his motion to amend. See Dckt. No. 42.
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As noted above, plaintiff’s proposed amended complaint does not contain all of the
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allegations in the operative complaint, but does contain new factual allegations against Vasquez
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and Thompson. Plaintiff’s filing gives no indication that he seeks to voluntarily dismiss the
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claims in the operative complaint. Rather, it appears that he wishes to supplement rather than
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amend the operative complaint.
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Plaintiff has not complied with Local Rule 220 (changed pleadings), which provides that
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“every pleading to which an amendment or supplement is permitted as a matter of right or has
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been allowed by court order shall be retyped and filed so that it is complete in itself without
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reference to the prior or superseded pleading.” Local Rule 220; see Loux v. Thay, 375 F.2d 55,
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57 (9th Cir. 1967). Any amendments to the complaint must comply with this rule. Accordingly,
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plaintiff’s motion to amend his complaint is denied without prejudice.
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III.
Service Information for Defendant Suharto
On August 12, 2011, after the United States Marshal was unable to obtain a waiver of
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service for defendant Suharto because “Sac does not have an employee or contractor by that
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name” and the defendant’s name was not listed in the CDC locator, the court directed plaintiff to
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provide additional instructions for serving defendant Suharto within 60 days. See Dckt. Nos. 29,
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32.
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On September 24, 2011, plaintiff submitted a completed USM-285 form for defendant
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“Sahota” instead of “Suharto” and attached a document which explains “Sahota” works at the
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California State Prison-Sacramento and advises that Linda Young, the litigation coordinator, can
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assist in locating and serving “Sahota.” Dckt. No. 34. Plaintiff again listed “Warden Viga” as
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the person to serve at California State Prison-Sacramento (“CSP-Sac”) with the summons and
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complaint for defendant “Sahota.” This is the same person plaintiff previously listed for
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defendant Suharto. On October 4, 2011, plaintiff filed a document stating that he had sent back a
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summons form for “Suharto.” See Dckt. No. 46.
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Plaintiff has failed to provide additional instructions to serve defendant Suharto.
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However, it appears that there may be some confusion due to the similarity of defendants
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Suharto and Sahota’s name. Defendant Sahota has been served; Suharto has not. See Dckt. No.
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41. The court grants plaintiff one more chance to submit sufficient information to effect service
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on defendant Suharto.2
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IV.
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Motions for a Preliminary Injunction
Plaintiff has filed motions for injunctive relief requesting the court to order defendants to
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treat plaintiff’s insomnia with insomnia medication. See Dckt. Nos. 21, 28, 45. On August 21,
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2011, the court ordered defendants to respond to plaintiff’s requests. Dckt. No. 31. Defendants
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filed a response on August 23, 2011 objecting to plaintiff’s requests. Dckt. No. 33. On October
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4, 2011, plaintiff filed a document entitled “objections to declaration of C. Paizis and motion for
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injunctive relief,” which the court construes as a reply. Dckt. No. 38.
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In support of his motions, plaintiff alleges he took sleep aid medication in federal prison
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and “on the streets,” but when he was transferred to CDC in March 2005, he was told CDC does
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not treat insomnia. Dckt. No. 28 at 1; Dckt. No. 38 at 9. Plaintiff asserts he routinely files 602
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appeals to request sleep aid medication but his requests have not been granted. Dckt. No. 21 at
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1-2. Plaintiff argues that in retaliation for filing this lawsuit, his psychiatrist, Dr. Grubbs, has not
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treated his insomnia. Dckt. No. 45, Ex. B. at 3.
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Suharto’s name may have been misspelled in plaintiff’s summons. See Dckt. No. 29
(unexecuted summons stating “unable to id Suarto”). Plaintiff may wish to try using the spelling
“Suharto.”
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Plaintiff challenges CSP-Sac’s current course of treatment, stating that he wants
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medication, not cognitive behavior therapy. Dckt. No. 28 at 3. Plaintiff argues that cognitive
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behavior therapy is not adequate treatment because he is incarcerated and under stressful
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conditions and that “just talking to a psychiatrist would not help . . . [his] conditions.” Id. at 2.
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Plaintiff alleges people have died from sleep deprivation. Id. at 2. Plaintiff attaches an August
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18, 2010 letter from Prison Health Care Services showing that he is currently being prescribed
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citalopram and mirtazepine, which are not sleep aid medications. Id. at 4, 7, 8.
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Plaintiff alleges that he experiences pain, headache, anxiety, suicidal thoughts, and
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hopelessness. Dckt. No. 38 at 5. He alleges that he was transferred to the Department of Mental
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Health at Salinas Valley State Prison and while in custody there, the prison doctors conducted a
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sleep study of plaintiff and administered him Ativan. Id. at 6. Plaintiff also alleges that U.C.
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Davis Medical Center has recommended to CSP-Sac that plaintiff needs a “neurology-sleep
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clinic referral,” and that CSP-Sac has ignored the recommendation and has “scratched it out” in
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his medical records. Id. at 2. Plaintiff requests that CDC to be sanctioned $1,000 a day until
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they comply with plaintiff’s request for adequate sleep aid medication. Id. at 2.
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Plaintiff attaches a sleep consultation and recommendation completed by Deepak
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Shrivastava, M.D., at San Joaquin Hospital, who saw plaintiff on August 18, 2010.3 Dckt. No.
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28 at 1; see also Dckt. 28, Attach. 1. Plaintiff alleges that the defendants have not followed up
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on Dr. Shrivastava’s recommendations and states that medication has not been administered, that
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plaintiff has not received therapy, and that plaintiff has not formed a relationship with a qualified
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psychiatrist. Id.
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Plaintiff alleges CSP-Sac has a policy of only treating primary sleep disorders. Dckt. No.
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38 at 6. In support of that allegation, plaintiff attaches a January 8, 2010 decision issued by
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CSP-Sac denying plaintiff’s appeal for sleep aid medication. In that decision, A. Deems, Chief
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Plaintiff attaches the first page of Dr. Shrivastava’s two page report. The first page
does not contain Dr. Shrivastava’s impressions or treatment recommendations.
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Executive Officer at CSP-Sac states:
“Your appeal was DENIED at the FLR [first level review]. The first level reviewer
responded as follows: Your appeal is denied. It is the prison’s policy to only treat
primary sleep disorders (i.e. narcolepsy, sleep apnea, etc.) . . . . ”
Dckt. No. 38, Ex. C at 2 (emphasis in original).
Plaintiff also attaches medical records from U.C. Davis Hospital documenting a request
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he made for treatment for chronic insomnia to Alyssa Camille Browning, M.D. on March 28,
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2010. Dckt. No. 38, Ex. A at 3-8. Plaintiff informed Dr. Browning that he was previously
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treated by Benadryl and Ativan. Id. at 3. In response to plaintiff’s request, Dr. Browning wrote:
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“Insomnia: he is already on mirtazepine. He reports chronic insomnia. I
recommend d/w with an internist or psychiatrist . . .[at] prison, but also
recommended trying nonpharmalogic methods of treating insomnia (relaxation
techniques, biofeedback, etc.).”
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Id. at 8.
Additionally, plaintiff attaches an article on sleep deprivation and sleep debt.4 Dckt. No.
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28, Ex. E. This article states the short term consequences of sleep deprivation include: decreased
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daytime alertness; impaired memory and cognitive ability; increased risk of sustaining an
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occupational injury; and an impaired immune system. Id. at 3. The long term consequences of
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sleep deprivation can include: high blood pressure; heart attack; heart failure; stroke; psychiatric
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problems such as depression and other mood disorders; mental impairment; increased mortality
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risk; relationship problems with a bed partner; and obesity. Id.
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In his most recent filing, plaintiff states Dr. Grubbs has started plaintiff on zolpidem to
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treat plaintiff’s insomnia. Dckt. No. 48 at 4. Zolpidem is a nonbenzodiazepine hypnotic used to
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treat insomnia. See Merck Manual of Diagnosis and Therapy, 3103 (Nineteenth Ed. 2011). In
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smaller doses, zolpidem has been effective for sleep induction, whereas in larger doses, it has
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been found to be effective both with sleep induction and sleep maintenance. Id. at 1709.
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The source and author of this document are unknown.
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Defendants oppose plaintiff’s request for a preliminary injunction. Defendants submit
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the declaration of C. Paizis, D.O., the Senior Psychiatrist Supervisor at CSP-Sac.5 Dckt. No. 33;
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Paizis Decl., Dckt. No. 33-1. From a review of the documents in plaintiff’s medical file and Dr.
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Shrivatava’s sleep medicine consultation, Dr. Paizis’ medical opinion is that plaintiff is receiving
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appropriate and adequate medical care. Id. ¶ 9. Specifically, Dr. Paizis opines plaintiff is
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receiving proper medical care for his symptoms through the prescriptions to treat his mental
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illness and through regular and repeated sessions of therapy. Id. Dr. Paizis declares that plaintiff
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is currently being treated for depression, of which insomnia is a symptom. Id. ¶ 5. Dr. Paizis
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attests plaintiff is currently prescribed citalopram, an antidepressant, and a low dose of risperdal,
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an antipsychotic, to treat his mental illnesses. Id. ¶ 4. Dr. Paizis contends plaintiff has a history
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of suicide attempts and auditory hallucinations and that insomnia is fairly common with
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depression and hallucinations. Id. ¶ 6. Dr. Paizis contends the treatment of the major mental
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illness is the appropriate path for plaintiff and within the standard of care for treatment of
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patients with like symptoms and complaints. Id. Dr. Paizis opines “[s]leep medications are
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primarily useful for temporary insomnia, not chronic issues which is the case here” and contends
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the medications plaintiff is requesting are mostly “addictive and contraindicated in a prison
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environment.” Id. ¶ 7. Dr. Paizis declares that plaintiff is currently assigned to a psychologist or
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social worker for group therapy routinely, meets with his primary clinician on a weekly basis,
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and is assigned to a minimum of ten hours a week of therapy. Id. ¶ 8. Additionally, plaintiff
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meets with his psychiatrist monthly. Id.
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Paizis also reviewed Dr. Shrivastava’s report which plaintiff relies on in his motion for
injunctive relief. Id. ¶ 2. Defendants note plaintiff failed to include the second page of Dr.
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In his reply, plaintiff alleges Dr. Paizis is not an expert in treatment of sleep disorders
and that Dr. Paizis is not a real doctor, but a “D.O.” Dckt. No. 38. C. Paizis, D.O., is a licensed
physician, board certified in the area of General, Forensic, and Addiction Psychiatry. Dckt. 33-1
¶ 2. She has been employed by CDCR for fifteen years and has worked in the position of Senior
Psychiatrist Supervisor for the past two years. Id.
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Shrivastava’s report which contains Dr. Shrivastava’s recommended course of treatment.6 Dckt.
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No. 47 at 2. Based upon an examination of plaintiff and a review of plaintiff’s history, Dr.
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Shrivastava recommended that plaintiff be referred to a psychiatrist for cognitive behavior
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therapy, that pharmaceutical therapy for plaintiff’s insomnia was counterproductive, and that
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plaintiff enter into a long-term relationship with a psychiatrist. Dckt. 33, Ex. A at 2.
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A.
Standards
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A preliminary injunction will not issue unless necessary to prevent threatened injury that
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would impair the court’s 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). A preliminary injunction
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represents the exercise of a far reaching power not to be indulged except in a case clearly
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warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to
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be entitled to preliminary injunctive relief, a party must demonstrate “that he is likely to succeed
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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
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the balance of equities tips in his favor, and that an injunction is in the public interest.”
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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.
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Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L.Ed.2d 249 (2008)). The Ninth Circuit
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has also held that the “sliding scale” approach it applies to preliminary injunctions—that is,
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balancing the elements of the preliminary injunction test, so that a stronger showing of one
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element may offset a weaker showing of another—survives Winter and continues to be valid.
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Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words,
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‘serious questions going to the merits,’ and a hardship balance that tips sharply toward the
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plaintiff can support the issuance of an injunction, assuming the other two elements of the Winter
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test are also met.’” Id.
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Defendants include Dr. Shrivastava’s entire report as Exhibit A to their Dr. Paizis’
declaration.
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In cases brought by prisoners involving conditions of confinement, any preliminary
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injunction “must be narrowly drawn, extend no further than necessary to correct the harm the
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court finds requires preliminary relief, and be the least intrusive means necessary to correct the
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harm.” 18 U.S.C. § 3626(a)(2).
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B.
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Plaintiff has not shown a likelihood of success on the merits on his claim that defendants’
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refusal to prescribe him sleep aid medication constitutes deliberate indifference. To prevail on a
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§ 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff
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must establish “acts or omissions sufficiently harmful to evidence deliberate indifference to
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serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
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(1976). He must show both that his medical needs were objectively serious and that defendants
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possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991);
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McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one that
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significantly affects an individual’s daily activities, an injury or condition a reasonable doctor or
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patient would find worthy of comment or treatment, or the existence of chronic and substantial
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pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other
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grounds by WMX Techs. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
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Likelihood of Success on the Merits
Deliberate indifference may be shown by the denial, delay or intentional interference
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with medical treatment or by the way in which medical care is provided. Hutchinson v. United
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States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison official
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must both be aware of facts from which the inference could be drawn that a substantial risk of
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serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825,
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837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Thus, a defendant is liable if he knows that
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plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take
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reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed to act
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despite his knowledge of a substantial risk of serious harm.” Id. at 842. A physician need not
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fail to treat an inmate altogether in order to violate that inmate’s Eighth Amendment rights.
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Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a
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serious medical condition, even if some treatment is prescribed, may constitute deliberate
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indifference in a particular case. Id.
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However, it is important to differentiate common law negligence claims of malpractice
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from claims predicated on violations of the Eighth Amendment’s prohibition of cruel and
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unusual punishment. In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical
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malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d
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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391
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F.3d 1051, 1057 (9th Cir. 2004). It is well established that mere differences of opinion
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concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation.
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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344
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(9th Cir. 1981) (“difference in opinion between a prisoner-patient and prisoner medical
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authorities regarding treatment does not give rise to a § 1983 claim”); Sanchez v. Vild, 891 F.2d
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240, 242 (9th Cir. 1989) (a difference in opinion between medical personnel does not amount to
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deliberate indifference). “To prevail on a claim involving the choices between alternate courses
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of treatment, a person must show that a chosen course of treatment ‘was medically unacceptable
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under the circumstances’ and was chosen in conscious disregard of an excessive risk to
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[plaintiff’s] health.” Toguchi, 391 F.3d at 1058 (quoting Jackson, 90 F.3d at 332).
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Here, plaintiff has not demonstrated a likelihood of success on the merits. First,
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plaintiff’s latest filing implies that he is now receiving medication for his insomnia, which would
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render his request for injunctive relief moot. See Dckt. No. 48 at 4. Second, even if this
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information is incorrect and plaintiff is not currently being prescribed sleep aid medication, on
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the evidence currently before the court, it is not likely that plaintiff will be able to demonstrate
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more than a difference of opinion concerning the appropriate medical treatment for his insomnia.
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The treating doctors at CSP-Sac, Dr. Browning, and Dr. Shrivastava all recommended that
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plaintiff see a psychiatrist or participate in cognitive behavior therapy to treat plaintiff’s
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insomnia. Dr. Paizis’s medical opinion is that plaintiff is receiving adequate and proper care.
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Dckt. No. 33-1 ¶ 9. Morever, Dr. Browning recommended nonpharmalogic methods to treat
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plaintiff’s insomnia and Dr. Shrivastava’s impression was that pharmaceutical treatment would
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be counterproductive. See Dckt. No. 38, Ex. A 8; see also Dckt. 33, Ex. A at 2. CSP-Sac
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doctors have opined that plaintiff’s insomnia is a symptom of depression, and they are treating
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his underlying depression. Dckt. No. 33-1 ¶¶ 5-9. Defendants’ failure to follow Dr. Browning’s
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recommendation of plaintiff for a neurology sleep clinic referral also does not amount to a
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deliberate indifference. Sanchez, 891 F.2d 240, 242 at (a difference in opinion between medical
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personnel does not amount to deliberate indifference). Plaintiff has not offered evidence
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demonstrating CSP-Sac’s course of treatment or policy is “medically unacceptable under the
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circumstances . . . and that [defendants’] chose this course in conscious disregard of an excessive
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risk to plaintiff’s health.” Jackson, 90 F.3d at 332. Thus, at this stage in the litigation, plaintiff
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has not shown that his demand for sleep aid medication amounts to more than a difference in
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opinion as to the nature and extent of plaintiff’s condition and the methodology of treatment. See
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Franklin, 662 F.2d at 1344; Sanchez, 891 F.2d at 242. For the purpose this motion, plaintiff has
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failed to demonstrate a likelihood of success on the merits of his Eighth Amendment claim.
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C.
Irreparable Injury
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In addition, plaintiff has not clearly demonstrated that he will suffer irreparable injury if
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his motion is not granted. “Preliminary injunctive relief is available only if [plaintiff]
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‘demonstrate[s] that irreparable injury is likely in the absence of an injunction.’” Johnson v.
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Couturier, 572 F.3d 1067, 1081 (9th Cir. 2009) (quoting Winter, 555 U.S. at 21). Under Winter,
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a preliminary injunction may not be granted based only on the possibility of irreparable harm,
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because such a result would be inconsistent with the court’s characterization of injunctive relief
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as an extraordinary remedy only to be awarded upon a clear showing that the plaintiff is entitled
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to such relief. 555 U.S. at 22. To meet the irreparable harm requirement, plaintiff must do more
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than simply allege harm; he must demonstrate it. Carribean Marine Servs. Co., Inc., v.
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Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). Mere “[s]peculative injury does not constitute
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irreparable injury to warrant granting a preliminary injunction.” Id.
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Again, plaintiff’s latest filing implies that he is now receiving medication for his
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insomnia, which would render his request for injunctive relief moot. See Dckt. No. 48 at 4.
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Even if plaintiff were not receiving medication, his filings do not demonstrate that he will suffer
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irreparable harm in the absence of medical treatment. Plaintiff attaches an article on the short
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and long term effects of sleep deprivation, including high blood pressure, heart attack, heart
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failure, stroke, psychiatric problems such as depression and other mood disorders, mental
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impairment, increased mortality risk, relationship problems with a bed partner, and obesity.
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However, he has not submitted evidence demonstrating that he suffers from these problems, or
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that even if he does, that those problems would be alleviated by sleep aid medication in his
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particular case. Plaintiff does allege that his insomnia causes him physical pain, headaches,
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anxiety, anger, suicidal thoughts and hopelessness, but he has submitted no medical evidence
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showing that these symptoms would be alleviated by medication. Dckt. No. 28 at 5. Further,
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plaintiff has not demonstrated that he will suffer irreparable harm by suffering from these
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symptoms during the pendency of this lawsuit.
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D.
Balance of the Hardships and Public Interest
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A party seeking injunctive relief “must establish . . . that the balance of equities tips in his
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favor and that an injunction is in the public interest.” Winter, 555 U.S. at 20. In assessing
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whether a party has met this burden, the district court has a “duty . . . to balance the interests of
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all parties and weight the damage to each.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football
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League, 634 F.2d 1197, 1203 (9th Cir. 1980). Additionally, “[i]n exercising their sound
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discretion, courts of equity should pay particular regard for the public consequences in
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employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24. (quotation marks
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and citation omitted). “When the reach of an injunction is narrow, limited only to the parties,
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and has no impact on non-parties, the public interest will be ‘at most a neutral factor in the
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analysis rather than one that favor[s] [granting or] denying the preliminary injunction.’ ”
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Stormans, Inc., 586 F.3d at 1138-39 (citing and quoting Bernhardt v. L.A. County, 339 F.3d 920,
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931 (9th Cir. 2003)).
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Here, the balance of equities to tips in favor of the plaintiff. Preserving plaintiff’s health
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must be balanced against the potential monetary costs of administering insomnia medication and
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the prison’s preference to not distribute sleep aid medication as it is addictive and
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contraindicated in a prison environment. physical harm to an individual over monetary costs to
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government entities. See Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004) (“faced
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with [] a conflict between financial concerns and preventable human suffering, [the court has]
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little difficulty in concluding that the balance of hardships tips decidedly in plaintiff’s favor.”)
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Thus, the balance of equities factor weighs in favor of granting the preliminary injunction. The
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court finds that the public interest is a neutral factor as the reach of the requested injunction is
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narrow and has no impact on non-parties. Id.
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While the balance of equities tips in plaintiff’s favor, plaintiff has failed to demonstrate
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that he will likely prevail on the merits and that he will suffer irreparable injury if injunctive
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relief is not granted. Accordingly, plaintiff’s request for a preliminary injunction should be
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denied.
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V.
Conclusion
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion to amend his complaint is denied without prejudice.
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2. The Clerk of the Court shall mail plaintiff one form USM-285 and a copy of the
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pleading filed February 9, 2011.
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////
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////
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3. Within 30 days from the date this order is served, plaintiff may submit the attached
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Notice of Submission of Documents with a completed form USM-285 providing instructions for
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service of process upon defendant Suharto and two copies of the pleading provided to plaintiff.
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4. Failure to provide new instructions for service of process upon defendant Suharto
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within the time allowed or show good cause for such failure will result in a recommendation that
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this action be dismissed as to that defendant.
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5. The Clerk of the court is directed to terminate docket entries 48 and 49.
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Further, it is hereby RECOMMENDED that plaintiff’s motion for injunctive relief be
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denied, and the Clerk be directed to terminate docket entries 28 and 38.
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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: November 30, 2011.
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HENRY A. JONES,
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Plaintiff,
No. CIV S-10-3206 MCE EFB P
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vs.
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SAHOTA, et al.,
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NOTICE OF SUBMISSION
OF DOCUMENTS
Defendants.
/
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Plaintiff hereby submits the following documents in compliance with the court's
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order filed
.
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One
completed summons
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completed USM-285 forms
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copies of the February 9, 2011 amended complaint
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DATED:
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Plaintiff
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