Porter v. Neotti et al

Filing 132

ORDER Denying Plaintiff's 11 Motion for Preliminary Injunction filed by Ryan E Porter. Signed by Judge Barry Ted Moskowitz on 1/31/2013.(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RYAN E. PORTER, CDCR #V-403011, Civil No. Plaintiff, 13 ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION vs. 14 15 11cv1050 BTM (BLM) GEORGE NEOTTI, et al., Defendants. 16 (ECF No. 11] 17 18 I. Procedural Background 19 Plaintiff commenced this action pro se on May 12, 2011. On September 22, 2011, 20 Plaintiff filed a request for injunctive relief (ECF No. 11) seeking an order requiring that special 21 needs yard (“SNY”) inmates at the Richard J. Donovan Correctional Facility (“RJD”) have the 22 opportunity to prepare their own food (id. at 13), and preventing “the defendants from denying 23 emergency medical care, . . . retaliat[ing] by delaying legal mail, [conducting] unwarranted cell 24 searches and body [searches], and illegal[ly] confiscat[ing] personal property, where the only 25 intent is to harass” (id. at 2). 26 The Court construed this filing as a request for both an application for a temporary 27 restraining order (“TRO”) and motion for a preliminary injunction. In opposition to the requests 28 for injunctive relief, Defendants argued that Plaintiff could not show a likelihood of success on I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Deny PI.wpd 1 11cv1050 BTM (IEG) 1 the merits of his claims because he had failed to exhaust his administrative remedies. 2 On November 22, 2011, the Court held a hearing on Plaintiff’s requests for a TRO and 3 a preliminary injunction, at which Plaintiff stated that he has been and continues to be unable 4 to exhaust his grievances because prison officials “falsely screened out” his appeals. On 5 December 15, 2011, the Court entered an order denying Plaintiff’s request for a temporary 6 restraining order based on his failure to exhaust, and set an evidentiary hearing for December 7 28, 2011, to determine whether Plaintiff’s administrative remedies were effectively unavailable 8 to him. (Doc. 68.) 9 Following the December 28, 2011 evidentiary hearing, the Court entered an order on 10 January 19, 2012, setting forth its findings that “there is a blockage preventing [the RJD appeals 11 coordinator] from receiving Mr. Porter’s properly-submitted food-contamination grievances” and 12 that “Mr. Porter’s administrative remedies are ‘effectively unavailable[.]’” (Doc. 85 at 7.) The 13 Court held that “Mr. Porter is excused from the exhaustion requirement with respect to his claim 14 that the food of the SNY inmates at RJD has been and continues to be contaminated . . . . [Mr. 15 Porter has also] exhausted his claim that he has received inadequate medical attention for health 16 problems resulting from allegedly contaminated food.” (Id. at 8.) The Court ordered a hearing 17 on Plaintiff’s request for a preliminary injunction. 18 19 Following the January 19, 2012 order, the Court appointed pro bono counsel for Plaintiff. On February 15, 2012, Attorney Marc S. Bragg noticed an appearance on behalf of Plaintiff. 20 After some discovery on the issues relating to the preliminary injunction hearing and the 21 submission to the Court of a voluminous documentary record--including affidavits from 22 prisoners and prison officials, as well as medical records for Plaintiff and other prisoners-- 23 Defendants informed the Court that RJD had assigned SNY inmates to RJD’s kitchen facility, 24 thereby eliminating any need for an injunction requiring RJD to allow SNY inmates to prepare 25 their own food. Following a status conference, the Court entered an order on April 3, 2012, 26 denying without prejudice Plaintiff’s request for a preliminary injunction requiring that SNY 27 inmates at RJD have the opportunity to prepare their own food. (ECF No. 118 at 2.) The Court 28 removed from its calendar the evidentiary hearing on the Plaintiff’s motion for a preliminary I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Deny PI.wpd 2 11cv1050 BTM (IEG) 1 injunction, and set forth a briefing schedule for supplemental briefing on Plaintiff’s request for 2 a preliminary injunction regarding his claim for inadequate medical attention. (Id.) Plaintiff filed additional briefing in support of his request for a preliminary injunction 3 4 (ECF No. 119) to which Defendants have filed an Opposition (ECF No. 127.) 5 II. Plaintiff’s Motion for Injunctive Relief 6 In his additional briefing, Plaintiff claims that Defendants have failed to provide timely 7 medical care in emergency situations and have a continuous pattern of failing to properly treat 8 Plaintiff’s medical condition. (ECF No. 119 at 2.) Plaintiff seeks injunctive relief in the form 9 of: (1) requiring Defendants to follow emergency “man down” procedures; (2) “make the 10 physical objections and medical assessments they are supposed to,” (3) treat Plaintiff’s 11 “complaints seriously” and review Plaintiff’s complaints with his primary care physician; (4) 12 provide Plaintiff with his prescribed medication “on a timely basis,” (5) refill his prescription 13 medication “within a reasonable amount of time,” (6) “prescribe an appropriate pain medication 14 for his illness until a treatment plan is implemented;” (7) refer Plaintiff to a pain management 15 treatment program; (8) “take and properly observe and test a stool sample of [Plaintiff’s] for all 16 possible causes” of Plaintiff’s “severe abdominal pain and diarrhea; (9) perform “any other 17 diagnostic tests that will result in a confirmed diagnosis of [Plaintiff’s] diseases;” and (10) 18 “restore [Plaintiff’s] prescription for [Plaintiff’s] gabapentin so that the pain from [Plaintiff’s] 19 injured hand is tolerable.” (Id.. at 20.) 20 To prevail on a motion for preliminary injunction, the moving party must establish (1) that 21 he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence 22 of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction 23 is in the public interest. Winter v. Natural Res. Defense Counsel, Inc., 555 U.S. 7, 20 (2009). 24 The Ninth Circuit has also “articulated an alternate formulation of the Winter test, under which 25 ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the 26 plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that 27 there is a likelihood of irreparable injury and that the injunction is in the public interest.” Farris 28 v. Seabrook, 677 F.3d 848, 864 (9th Cir. 2012) (quoting Alliance for the Wild Rockies v. Cottrell, I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Deny PI.wpd 3 11cv1050 BTM (IEG) 1 632 F.3d 1127, 1135 (9th Cir. 2011.) 2 In his Motion, Plaintiff contends that his medical records establish that his condition has 3 been “diagnosed as a chronic severe abdominal pain.” (Pl.’s Mot. for PI at 7.) He further claims 4 that “it is simply common sense and requires no medical expert at this stage” to find that his 5 condition, if left untreated and undiagnosed, will “continue to worsen and most likely become 6 permanent.” (Id.) Thus, Plaintiff maintains that his medical records demonstrate “a textbook 7 definition of ‘irreparable injury.’” (Id.) 8 In order to prevail on this Motion for Preliminary Injunction, Plaintiff must demonstrate 9 that he is likely to succeed on the merits of his Eighth Amendment claim. Where an inmate’s 10 claim is one of inadequate medical care, the inmate must allege “acts or omissions sufficiently 11 harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 12 U.S. 97, 106 (1976). Such a claim has two elements: “the seriousness of the prisoner’s medical 13 need and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 14 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 15 1133, 1136 (9th Cir. 1997). A medical need is serious “if the failure to treat the prisoner’s 16 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 17 pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious 18 medical need include “the presence of a medical condition that significantly affects an 19 individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious medical 20 need, an inmate satisfies the objective requirement for proving an Eighth Amendment violation. 21 Farmer v. Brennan, 511 U.S. 825, 834 (1994). 22 In general, deliberate indifference may be shown when prison officials deny, delay, or 23 intentionally interfere with a prescribed course of medical treatment, or it may be shown by the 24 way in which prison medical officials provide necessary care. Hutchinson v. United States, 838 25 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a inmate’s civil rights have been 26 abridged with regard to medical care, however, “the indifference to his medical needs must be 27 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 28 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Deny PI.wpd 4 11cv1050 BTM (IEG) 1 Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 2 Plaintiff’s claims that the medical records attached to his motion for preliminary 3 injunction show deliberate indifference is unsupported by the documents themselves. The 4 majority of the “medical records” supplied by Plaintiff are simply a history of his administrative 5 appeals with respect to his medical concerns. (ECF No. 119-1-13.) Defendants have supplied 6 the declarations of Dr. Choo and Dr. Walker (ECF No. 92.) In Dr. Walker’s declaration he states 7 that Plaintiff has received medical treatment from medical professionals on at least forty seven 8 (47) occasions between December 2010 and February 2012. (See Defs. Opp’n to PI at 4.) In 9 addition, Dr. Choo has testified that she has reviewed Plaintiff’s entire medical file which 10 demonstrate he has received “extensive diagnostic examinations” including multiple stool 11 samples, blood tests, colonoscopy with biopsy, x-rays of his abdomen, upper endoscopy, 12 examinations by gastroenterologist, abdominal ultrasound, visits to hospital emergency rooms, 13 and medications. (Id. at 11-12.) These were declarations provided to the Court and Plaintiff 14 prior to Plaintiff’s current moving papers which do not address any of these facts presented and 15 documented by Defendants. 16 Plaintiff also cites to a number of California Business and Professions code sections that 17 reference negligence. As stated above, mere “indifference,’ ‘negligence,’ or ‘medical 18 malpractice” will not support not support an Eighth Amendment deliberate indifference claim. 19 Broughton, 622 F.2d at 460. Moreover, Defendants have supplied expert declarations indicating 20 that the treatment Plaintiff has received has fallen within the appropriate standard of care. While 21 Plaintiff claims that there are “serious questions going to the merits” of whether the “applicable 22 Defendant medical care providers have acted in accord with the applicable medical standard of 23 care,” (ECF No. 119 at 19) this claim is not supported by any evidence in the record supplied by 24 Plaintiff. 25 The declarations supplied by the Defendants, which have not been disputed by Plaintiff, 26 show that he has received and continues to receive the treatment which he asks for in his request 27 for injunctive relief. For these reasons, the Court finds that Plaintiff is not entitled to the 28 emergency injunctive relief he seeks. I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Deny PI.wpd 5 11cv1050 BTM (IEG) 1 2 III. Conclusion and Order Accordingly, Plaintiff’s Motion for Preliminary Injunction [ECF No. 11] pursuant to 3 FED.R.CIV.P. 65 is DENIED. 4 IT IS SO ORDERED. 5 6 DATED: January 31, 2013 7 BARRY TED MOSKOWITZ, Chief Judge United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Deny PI.wpd 6 11cv1050 BTM (IEG)

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