Harrell v. California Forensic Medical Group Inc. et al

Filing 43

ORDER signed by Magistrate Judge Deborah Barnes on 9/26/2016 DENYING plaintiff's 37 motion for preliminary injunction and for TRO. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA NEIL HARRELL,

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No. 2:15-cv-0579 DB P

Plaintiff,
v.

ORDER

CALIFORNIA FORENSIC MEDICAL
GROUP, INC., et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. On

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April 20, 2016, plaintiff filed his third motion for a temporary restraining order compelling

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defendants to prescribe him Harvoni for “genotype 1 Hepatitis C.” (ECF No. 37 at 3.) On

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August 29, 2016, plaintiff filed a “Request for Judicial Notice” in which he updates some of this

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health information and contends that defendants are intentionally inflicting emotional distress by

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refusing to provide him Harvoni. By orders filed November 3, 2015 and December 9, 2015, the

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court denied plaintiff’s prior motions for a temporary restraining order seeking the same relief.

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(ECF Nos. 27, 31.) In December, the court warned plaintiff that any further attempts to convince

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the court that he should be prescribed Harvoni are likely to be futile and, because they

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unnecessarily drain the court’s resources, may ultimately lead to sanctions against plaintiff

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pursuant to Federal Rule of Civil Procedure 11. (ECF No. 31 at 5.)
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Legal Standards
A temporary restraining order is an extraordinary measure of relief that a federal court

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may impose without notice to the adverse party only if, in an affidavit or verified complaint, the

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movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the

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movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A).

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Local Rule 231(a) states that “[e]xcept in the most extraordinary of circumstances, no temporary

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restraining order shall be granted in the absence of actual notice to the affected party and/or

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counsel[.]” In the absence of such extraordinary circumstances, the court construes a motion for

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temporary restraining order as a motion for preliminary injunction. See, e.g., Aiello v. One West

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Bank, No. 2:10–cv–0227–GEB–EFB, 2010 WL 406092, at *1–2 (E.D. Cal. Jan. 29, 2010).

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The party requesting preliminary injunctive relief must show 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.” Winter v.

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Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief

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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean

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Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the

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public interest, a preliminary injunction may issue so long as serious questions going to the merits

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of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for

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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the

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“serious questions” version of the sliding scale test for preliminary injunctions remains viable

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after Winter).

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The principal purpose of preliminary injunctive relief is to preserve the court’s power to

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render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is

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that the relief awarded is only temporary and there will be a full hearing on the merits of the

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claims raised in the injunction when the action is brought to trial. In cases brought by prisoners
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involving conditions of confinement, any preliminary injunction “must be narrowly drawn,

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

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

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Analysis

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Plaintiff raises nothing new in his current motion. He simply reiterates his desire for

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treatment with Harvoni and again claims, without support, that he will suffer irreparable liver

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damage, including “liver cancer or even liver failure,” if he does not receive that treatment

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immediately. (ECF No. 37 at 2.) Plaintiff also states that he is “suffering a substantial amount of

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chronic pain from the effects of this disease.” (Id.) In his recent request for judicial notice,

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plaintiff adds an allegation that defendants are intentionally causing him emotional distress by

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denying him Harvoni. (ECF No. 42 at 5.) Plaintiff provides a copy of a “Mental Health Referral

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Chrono” dated August 8, 2016, which states that plaintiff has a history of psychiatric care and

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needs re-assessment because plaintiff was “extremely agitated and upset that his Hep C is not

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being treated.” He also points to what appears to be a doctor’s handwritten note showing that his

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“Fib-4” level has increased from .96 in June 2015 to 1.09 in June 2016. (Id. at 9.) The note also

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includes the handwritten comment: “A Fib-4 of >1.45 is required to be considered for treatment

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per CDCR guidelines.” (Id.)
This court has previously addressed plaintiff’s challenges to both the doctors’ decisions

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not to prescribe Harvoni and to the policy of the California Correctional Health Care Services

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(“CCHCS”) regarding when treatment for Hepatitis C is appropriate. (See ECF Nos. 27 and 31.)

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Plaintiff has again failed to show he will suffer irreparable harm in the absence of preliminary

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relief. Plaintiff’s allegations regarding pain, emotional distress, and a slight increase in his Fib-4

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level do not show that he will be irreparably harmed if he is not prescribed Harvoni. Because

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plaintiff has failed to demonstrate the requisite likelihood of irreparable harm absent issuance of

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preliminary injunctive relief, the court need not address the adequacy of plaintiff’s showing

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regarding his likelihood of success on the merits, the balance of the equities presented, or the

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public interest in the issuance of the requested relief.

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Plaintiff was warned in December that he may not continually file motions seeking the

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same relief without consequences. Under Federal Rule of Civil Procedure 11(b), a prisoner’s

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claims are considered frivolous if they “merely repeat[] pending or previously litigated claims.”

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Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995) (quoting Bailey v. Johnson, 846

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F.2d 1019, 1021 (5th Cir.1988)). Sanctions for violation of Rule 11(b) may include dismissal of

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the plaintiff’s case. See Bell v. Harrington, No. 1:12-cv-0349-LJO-GBC (PC), 2012 WL 893815,

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*9 (E.D. Cal. Mar. 15, 2012). Plaintiff is advised that further motions for injunctive relief to

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obtain a prescription for Harvoni will likely result in dismissal of this action.

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For the foregoing reasons, plaintiff’s April 20, 2016 Motion for Preliminary Injunction

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and Temporary Restraining Order (ECF No. 37) is DENIED.

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Dated: September 26, 2016

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DLB:9
DLB1/prisoner-civil rights/Harr0579.tro(3)

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