Hughes v. CDCR

Filing 67

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/01/15 recommending that plaintiff's motion 62 construed as a motion for a preliminary injunction be denied. MOTION 62 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARD HUGHES,

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No. 2:11-cv-1856-KJM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

MARTIN H. JANSEN, M.D., et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. He has filed a “motion for order re: psychotropic medication,” which the court construes

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as a motion for preliminary injunctive relief. ECF No.62. So construed, the court recommends

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that the motion be denied.

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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, Inc.,

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

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

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harm in the 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.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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In the complaint, plaintiff seeks an injunction enjoining CDCR from failing to prescribe

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him Wellbutrin or other medication effective to treat his major depressive disorder. ECF No. 60.

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He now asks the court to “compel defendants to provide [him with] psychotropic medications.”

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ECF No. 62 at 1. He claims that he “is suffering from depression, lack of concentration, and

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ability to reason” because his medication, Wellbutrin, was “suddenly” discontinued. Id. at 1-2.

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Plaintiff complains very generally that the “lack of medication . . . cause[s] . . . many problems

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and affects his daily life.” Id. at 2. He adds that “the inability to concentrate and the suffering of

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mental deficiencies is disallowing plaintiff to function normally.” Id.

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Plaintiff does not, however, establish that he is likely to succeed on his claim and a

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preliminary injunction requiring defendants to provide him with a specific medication must be

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denied. Apart from his own conclusory declaration, plaintiff’s motion is not accompanied by

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evidence establishing a likelihood of success in this action, or that the injunction sought is

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necessary to preserve the court’s ability to grant effective relief on his claim and that it is the least

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intrusive means for doing so. The complaint’s allegations alone do not demonstrate that plaintiff

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is being denied any form of mental health treatment or that he will suffer irreparable harm

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without the court’s intervention. Plaintiff also fails to present evidence establishing that the

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balance of equities tips in his favor or that the requested injunctive relief is in the public interest.
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Thus, plaintiff has not made the showing required to meet his burden as the party moving for

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preliminary injunctive relief, and his request must be denied.

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The court notes that plaintiff also asks the court to order “appointed counsel” to request a

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court order to ensure that he receives “proper mental health care.” ECF No. 62. The court

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previously appointed counsel for plaintiff for the limited purposes of investigating plaintiff’s

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claims, drafting and filing an amended complaint, and assessing the need for a temporary

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restraining order. ECF No. 48. Counsel fulfilled his role as counsel for a limited purpose when

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he filed plaintiff’s second amended complaint on September 11, 2015. ECF No. 60. Because

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plaintiff is now proceeding pro se, it is his responsibility to seek relief from the court.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion (ECF No. 62),
construed as a motion for a preliminary injunction, 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: December 1, 2015.

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