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