Thornberry v. Kernan et al
Filing
15
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 3/8/2018 RECOMMENDING 10 Motion for Injunctive Relief be denied. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
DANIEL LEE THORNBERRY,
12
13
14
15
16
17
18
No. 2:17-CV-0953-TLN-CMK-P
Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
J. BAL, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief (Doc. 10).
19
20
21
I. PLAINTIFF’S ALLEGATIONS
This action proceeds on plaintiff’s first amended complaint. Plaintiff names the
22
following as defendants: (1) James Chau; (2) C. Smith; (3) M. Bobbala; (4) Michael Felder; and
23
(5) J. Bal. Defendants Chau and Smith are alleged to be current or former prison medical
24
professionals at Mule Creek State Prison. Defendants Bobbala and Felder are alleged to be
25
current or former supervising prison medical professionals at California State Prison -
26
Sacramento. Defendant Bal is alleged to be the current or former Deputy Medical Executive for
1
1
2
the California Department of Corrections and Rehabilitation.
Plaintiff claims that, prior to any examination, defendant Chau discontinued
3
plaintiff’s prescribed pain medication and instead prescribed a “replacement” which plaintiff says
4
is not as effective in controlling his pain. Plaintiff further alleges that, nearly a month later and
5
only after he had filed a medical grievance, he was actually examined by defendant Chau, who
6
continued the replacement prescription. According to plaintiff, defendant Chau informed
7
plaintiff that he could not prescribe plaintiff’s prior medication “due to a new ‘state-wide push’
8
to discontinue certain non-formulary medications.” Plaintiff states that, when asked whether
9
another medication similar to his prior medication was available, defendant Chau “became
10
hostile and verbally abusive,” and told plaintiff: “I don’t have to make you comfortable; I only
11
have to make you functional. I give you constitutional care. If you can walk, that’s all I’m
12
concerned with.” According to plaintiff, when he asked whether defendant Chau could review
13
his medical records in order to determine whether other treatment options for pain are available,
14
defendant Chau told plaintiff: “I’ve already read your file. You need to go now.”
15
Plaintiff filed an inmate grievance concerning his pain medication and the matter
16
was reviewed by a different prison doctor, defendant Smith, who continued the course of
17
treatment prescribed by defendant Chau. According to plaintiff, defendant Smith told him that
18
the continuation of defendant Chau’s treatment plan was “centered around a so-called state-wide
19
policy both actual and implied that seeks to ‘take as many inmates off certain medications as
20
possible and to stop prescribing them.’” Plaintiff states that, after describing his ongoing pain,
21
defendant Smith replied: “My hands are tied.” According to plaintiff, regarding the approved
22
medications defendant Smith also said: “You know, it’s tough, many of these medications
23
interact negatively with the lithium you take.” When plaintiff rejected various other options for
24
pain medications, many of which were medications primarily intended to treat psychological
25
symptoms, because he had been told by his treating psychiatrist to avoid such medications,
26
defendant Smith allegedly replied: “Those are your options, take them or leave them.”
2
1
Ultimately, plaintiff agreed to take Effexor for his pain even though the medication was primarily
2
intended for treatment of depression. Plaintiff states that Effexor caused side effects which made
3
him feel as if he had taken “pharmaceutical cocaine.”
4
Plaintiff states that he was then transferred to California State Prison - Sacramento
5
where he was examined by Dr. Wadell. Plaintiff’s primary complaint was chronic pain. Dr.
6
Wadell prescribed Tylenol with codeine twice per day, a back brace, and a cane. Plaintiff asked
7
if he could be given either gabapentin or lyrica because those had been more effective in the past.
8
According to plaintiff, Dr. Wadell stated that he would prefer treating plaintiff with gabapentin
9
but that defendant Bobbala “denied NFRs for both gabapentin and lyrica and most all narcotics –
10
all medications used to treat chronic pain.” Plaintiff claims that Dr. Wadell also told him that
11
this policy to deny narcotic pain medication had been promulgated by defendant Bal.
12
According to plaintiff, he asked defendant Felder why “CME Bobbala consistently
13
denied all NFRs related to pain medications.” Plaintiff states that Felder said “it was his
14
understanding the head office had changed the policy related to pain medication and the criteria
15
used in approving its use.”
16
17
18
19
20
II. DISCUSSION
Plaintiff seeks an order requiring defendants to provide him with his originally
prescribed pain medication.
The proper test applicable to a request for injunctive relief requires a party to
21
demonstrate all of the following: (1) he is likely to succeed on the merits; (2) he is likely to suffer
22
irreparable harm in the absence of an injunction; (3) the balance of hardships tips in his favor;
23
and (4) an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 129
24
S.Ct. 365 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). To the extent
25
prior Ninth Circuit cases suggest a lesser standard by focusing solely on the possibility of
26
irreparable harm, such cases are “no longer controlling, or even viable.” Am. Trucking Ass’ns,
3
1
Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
2
The court finds that plaintiff has shown that he is likely to suffer irreparable harm
3
in the absence of injunctive relief. Specifically, to the extent plaintiff’s chronic pain cannot be
4
adequately treated with non-narcotic medications, and to the extent plaintiff cannot obtain
5
individualized medical review of his symptoms and all possible treatment options due to the
6
implementation of a state-wide policy precluding narcotic pain medications, plaintiff’s continued
7
and inadequately treated pain constitutes irreparable harm.
8
9
The court also finds, however, that plaintiff cannot at this time establish that he is
likely to succeed on the merits of his claim. While the court has determined that the amended
10
complaint is appropriate for service on defendants, no defendant has yet responded to the
11
complaint. Nor has any discovery been conducted or evidence presented to the court regarding
12
the alleged state-wide anti-narcotic medication policy or defendants’ implementation of such a
13
policy. Plaintiff certainly has a possibility of succeeding on the merits of his claims, but that is
14
not to say that he is likely to succeed.
15
Because plaintiff cannot at this time make each of the showings required under
16
Winter, injunctive relief is not appropriate.
17
///
18
///
19
///
20
///
21
///
22
///
23
///
24
///
25
///
26
///
4
1
2
3
III. CONCLUSION
Based on the foregoing, the undersigned recommends that plaintiff’s motion for
injunctive relief (Doc. 10) be denied.
4
These findings and recommendations are submitted to the United States District
5
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
6
after being served with these findings and recommendations, any party may file written
7
objections with the court. Responses to objections shall be filed within 14 days after service of
8
objections. Failure to file objections within the specified time may waive the right to appeal.
9
See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
10
11
12
13
DATED: March 8, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?