Jackson v. Walker et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/5/13 RECOMMENDING that plaintiffs motions for injunctive relief (Docs. 13 , 19 , and 21 ) be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, 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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CHRISTOPHER JACKSON,

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Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

J. WALKER, et al.,
Defendants.

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No. 2:11-CV-3167-GEB-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are plaintiff’s motions for preliminary injunctive

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relief (Docs. 13, 19, and 21).

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The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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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., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).

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Here, plaintiff seeks an order requiring him to be transferred to the California

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Medical Facility to receive medical treatment for his knee. According to plaintiff, he first

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complained of knee problems in 2002. He was examined by a prison doctor and x-rays were

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obtained. Plaintiff was then sent to an outside orthopedic specialist in January 2003. The outside

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specialist recommended surgery to remove “loose bodies” and a meniscus tear. Plaintiff claims

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that, between November 2003 and February 2005, defendants did nothing to act on the doctor’s

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recommendation. While he states that he was seen by prison doctors seven times during this

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period, plaintiff claims that they “did not take requisite actions. . . .” Plaintiff was again seen by

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the outside specialist in February 2005. The specialist said surgery was required as soon as

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possible. Again, plaintiff claims that, despite the doctor’s recommendation, defendants did

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nothing. Plaintiff states that he was seen once again by an outside specialist in April 2008, and

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that the specialist again recommended surgery. According to plaintiff, defendants continue to

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fail to act. In April 2012, plaintiff met with prison officials concerning an inmate grievance

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plaintiff had filed. According to plaintiff, his requests for medical treatment were denied.

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Based on this record, the court concludes that plaintiff cannot demonstrate the

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requisite likelihood of irreparable injury. To the contrary, plaintiff states that his knee problems

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can be repaired with appropriate surgery. To the extent plaintiff’s injury derives from a delay in

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receiving medical treatment, plaintiff has not demonstrated that such delay is causing irreparable

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injury. According to plaintiff, he first complained of knee pain in 2002, surgery was

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recommended in 2003 and again in 2005, and defendants have allowed the surgery to occur.

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There is no indication that any delay is, in and of itself, causing plaintiff’s injury.

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Moreover, the court cannot say that plaintiff has demonstrated a particular

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likelihood of success on the merits.1 While he has clearly stated his factual allegations, it appears

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that the basis of plaintiff’s claim may be a difference in medical opinion – he thought he should

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receive surgery; the prison doctors did not. A difference of opinion between the prisoner and

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medical providers concerning the appropriate course of treatment does not give rise to an Eighth

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Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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Because plaintiff has not demonstrated a likelihood of irreparable injury or a
likelihood of success on the merits, his motions for injunctive relief should be denied.

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Based on the foregoing, the undersigned recommends that plaintiff’s motions for
injunctive relief (Docs. 13, 19, and 21) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 5, 2013

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______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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The court is in the process of screening the second amended complaint, which
names 29 individual defendants, for legal sufficiency.
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