Carmichael v. Aranas et al

Filing 48

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 43 is accepted and adopted in full; Plaintiff's Emergency Motion for Temporary Restraining Order/Preliminary Injunction ECF Nos. 3 / 4 is grante d as follows:(1) Plaintiff is precluded from lifting anything greater than 10 lbs, consistent with the current "lay-in" order in place; (2) Plaintiff is to be transferred to another NDOC facility, per his medical providers to determi ne a mechanism for safe transport before transportation; (3) preliminary injunction applies to the Defendants named in this action and their offers, agents, servants, employees and attorneys; and, (4) The preliminary injunction shall remain in place pending a full determination of Plaintiff's claim upon the merits or upon further order of the Court. See Order for specific details and information. Signed by Judge Miranda M. Du on 05/02/2017. (Copies have been distributed pursuant to the NEF - KW) .

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
***

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RICHARD LEE CARMICHAEL,
Plaintiff,

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Case No. 3:17-cv-00025-MMD-WGC

v.
ROMEO ARANAS, et al.,

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ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendants.

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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (ECF No. 43) (“R&R”) relating to Plaintiff Richard Carmichael’s

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(“Carmichael”) Motion for Temporary Restraining Order/Preliminary Injunction (ECF Nos.

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3, 4). Defendants have objected to the R&R. (ECF No. 46.) For the reasons herein the

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R&R is accepted and adopted in full.

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II.

BACKGROUND

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Carmichael is an inmate in the custody of the Nevada Department of Corrections

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(“NDOC”) and is currently housed at the Northern Nevada Correctional Center (“NNCC”).

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The events giving rise to this action took place while he was housed at High Desert State

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Prison, Southern Desert Correctional Center, Ely State Prison, and NNCC.

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On January 13, 2017, Carmichael, proceeding pro se and in forma pauperis, filed

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a complaint asserting claims based on 42 U.S.C. § 1983. (ECF No. 1.) Shortly thereafter,

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he filed an Emergency Motion for a Temporary Restraining Order and Preliminary

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Injunction (“PI Motion”). (ECF Nos. 4, 5.)1 The complaint was screened pursuant to 28

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U.S.C. 1915A, and Carmichael was allowed to move forward with the claims he listed in

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Counts I, II, and IV, which alleged deliberate indifference to his serious medical needs in

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violation of the Eight Amendment. (ECF No. 5.) Count I addresses Carmichael’s prostate

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condition and Counts II and IV deal with a spinal condition.

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The details of Carmichael’s claims, which are summarized here, are spelled out in

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greater detail in the R&R.2 Carmichael’s PI Motion is based on the allegations in Counts

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II and IV against Defendants Koehn, Wickham, Sablica, Famy, Weber, and Baca. In

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general, Carmichael alleges that he has serious neck and pack pain stemming from

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degenerative disc disease and advanced spinal stenosis — conditions with which he

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was diagnosed in 2013 and 2016 respectively. He alleges that Defendants have ignored

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a number of his requests for accommodation and treatment, and that their actions have

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caused him a great deal of pain and risked further deterioration of health. Carmichael

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asks the Court for an order barring Defendants from transporting him to another facility

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until a medical professional can determine whether transport would cause further harm

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to his back. He also asks for Defendants to arrange an examination by a qualified

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neurologist or orthopedic surgeon.

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After reviewing the parties’ briefs and ordering supplemental briefing, the

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Magistrate Judge held a hearing on March 27, 2017. (ECF No. 40.) Based on the record

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and the arguments presented at the hearing, the Magistrate Judge determined that

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Carmichael had demonstrated a likelihood of success on the merits of his Eight

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Amendment deliberate indifference claim related to his spinal condition. The Magistrate

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1ECF

No. 4 and ECF No. 5 are identical documents.
2Defendants have not objected to the Magistrate Judge’s summary of the claims
and evidence presented, and the Court adopts those portions of the R&R in full.
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Judge further determined that the rest of the preliminary injunction analysis weighed in

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Carmichael’s favor and recommends granting Carmichael’s request by issuing an order:

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(1) precluding Defendants from requiring Carmichael to lift anything greater than 10

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pounds, consistent with the current “lay-in order” in place, until and unless it is medically

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determined otherwise; and (2) require consultation with Carmichael’s medical care

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providers regarding safe transport if Carmichael is transferred to another NDOC facility.

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(ECF No. 43 at 19-20.)
Defendants have objected to the Magistrate Judge’s recommendation, and argue

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that he erred at each step of the preliminary injunction analysis. (ECF No. 46.)
III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of

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Defendants’ objections, the Court has engaged in a de novo review to determine

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whether to adopt Magistrate Judge Cobb’s recommendations.

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“‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy

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that may only be awarded upon a clear showing that the plaintiff is entitled to such

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relief.’” Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v.

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Nat. Res. Def. Council, 555 U.S. 7, 22, 32 (2008)). To qualify for a preliminary injunction,

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a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of

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irreparable harm; (3) that the balance of equities favors the plaintiff; and (4) that the

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injunction is in the public interest. Winter, 555 U.S. at 20.

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Alternatively, in the Ninth Circuit, an injunction may issue under a “sliding scale”

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approach if there are serious questions going to the merits and the balance of equities

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tips sharply in the plaintiff’s favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

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1134-35 (9th Cir. 2011). The plaintiff, however, must still show a likelihood of irreparable
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harm and that an injunction is in the public interest. Id. at 1135. “[S]erious questions are

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those ‘which cannot be resolved one way or the other at the hearing on the injunction.’”

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Bernhardt v. Los Angeles Cty., 339 F.3d 920, 926-27 (9th Cir. 2003) (quoting Republic of

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the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). They “need not promise

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a certainty of success, nor even present a probability of success, but must involve a ‘fair

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chance of success on the merits.’” Marcos, 862 F.2d at 1362 (quoting Nat’l Wildlife Fed’n

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v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)).

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Furthermore, under the Prison Litigation Reform Act (“PLRA”), preliminary

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injunctive relief must be “narrowly drawn,” must “extend no further than necessary to

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correct the harm,” and must be “the least intrusive means necessary to correct the

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harm.” 18 U.S.C. § 3626(a)(2).

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IV.

DISCUSSION

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Defendants argue that the Magistrate Judge erred in concluding that Carmichael

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has established a likelihood of success on the merits, that irreparable injury would occur

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absent an injunction, that the balance of hardships tipped in his favor, and lastly that an

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injunction would further the public interest.

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A.

Likelihood of Success on the Merits
1.

Deliberate Indifference Standard

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Although prisoners may be deprived of some of their rights fundamental to liberty,

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they “retain the essence of human dignity inherent in all persons.” Brown v. Plata, 131

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S. Ct. 1910, 1928 (2011). The Eighth Amendment protects this dignity in its prohibition

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against cruel and unusual punishment. Because society takes from prisoners their liberty

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to provide for themselves, they become dependent on the state for shelter, food,

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clothing, and medical care. “A prison that deprives prisoners of basic sustenance,

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including adequate medical care, is incompatible with the concept of human dignity and

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has no place in civilized society.” Id.

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“[T]he government has an obligation to provide medical care for those whom it

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punishes by incarceration,” Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir.
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1988), and cannot be deliberately indifferent to the medical needs of its prisoners. See

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Estelle v. Gamble, 429 U.S. 97, 104 (1976). “[T]he appropriate inquiry when an inmate

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alleges that prison officials failed to attend to serious medical needs is whether the

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officials exhibited deliberate indifference.” Hudson v. McMillian, 503 U.S. 1, 5 (1992).

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Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

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Amendment. Estelle, 429 U.S. at 104. Prison doctors, medical staff, or prison guards

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can all be liable for Eighth Amendment violations. Id. The Supreme Court has identified

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two forms of deliberate indifference: when prison officials deny, delay or intentionally

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interfere with medical treatment, or by the way in which prison physicians provide

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medical care. See Hutchinson 838 F.2d at 394 (citing Estelle, 429 U.S. at 104-05).

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In the Ninth Circuit, the test for deliberate indifference consists of two parts.

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McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the plaintiff must

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show a “serious medical need” by demonstrating that failure to treat her or his condition

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could result in further significant injury or the unnecessary and wanton infliction of pain.

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Id. A serious injury is not the type of “routine discomfort [that] is ‘part of the penalty that

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criminal offenders pay for their offenses against society.’” Hudson, 503 U.S. at 9 (quoting

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “The existence of an injury that a

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reasonable doctor or patient would find important and worthy of comment or treatment;

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the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain are examples of indications

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that a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974 F.2d at 1059-

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60 (citations omitted).

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Second, the plaintiff must demonstrate that the defendant’s response to the need

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was deliberately indifferent by showing (a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by the indifference. Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations and citations omitted).

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The requirement of a purposeful act/failure to respond is intended to preclude a finding
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of deliberate indifference for accidents or inadvertent failures to provide adequate

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medical care. Estelle, 429 U.S. at 105.

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Amendment violation. Hutchinson, 838 F.2d at 394.

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caused by the indifference, a prisoner need not show that the harm was substantial, but

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such a showing would provide additional support for the inmate’s claim of deliberate

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indifference. McGuckin, 974 F.2d at 1060.

Mere negligence does not rise to an Eighth
In order to demonstrate harm

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Once these requirements are met, the factfinder must determine whether the

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defendant was deliberately indifferent to the prisoner’s medical needs. McGuckin, 974

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F.2d at 1060. “[T]he more serious the medical needs of the prisoner, . . . the more likely

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it is that a plaintiff has established ‘deliberate indifference’ on the part of the defendant.”

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Id. at 1061. A finding that the defendant’s neglect was isolated weighs against a finding

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of deliberate indifference, while a repeated failure to treat an inmate or a single

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egregious failure supports such a finding. Id. at 1060-61.

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2.

Analysis

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The R&R recounts Carmichael’s medical history in great detail. (ECF No. 43 at 7-

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15.) The Magistrate Judge concluded that inconsistencies and gaps in treatment

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supported a finding that Camichael will likely succeed on the merits of his Eight

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Amendment claim as it related to his spinal condition. The Magistrate Judge specially

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pointed to several examples of behavior that he believed demonstrated deliberate

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indifference, including a seven-month delay between the recommendation for an MRI

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and the actual performance, failure to follow doctors’ recommendations for pain

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management, and inexplicable classification as being “medically stable” and requiring

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“minimal or no periodic health care” despite a lengthy documented history of pain and a

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deteriorating condition. (Id. at 15-16.)

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Defendants argue that the Magistrate Judge’s conclusion lacked a clear factual

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basis because Carmichael’s “voluminous” medical records show “a pattern of multiple

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complaints followed by continuing medical treatment and care.” (ECF No. 46 at 4.) In

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other words, Defendants seem to believe that simply because Carmichael was receiving
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treatment, and indeed more treatment than the average inmate, it is impossible to

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conclude that they were indifferent to his medical needs. But providing some treatment

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does not inoculate Defendants from any Eight Amendment violations. Carmichael has

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shown several instances that seem to show, at this early stage of the litigation, that

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Defendants, who were aware of his condition, failed to adequately respond to his pain

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and medical needs. The Court agrees with the Magistrate Judge’s assessment of the

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medical records. While they show that Carmichael received relatively regular attention,

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they also seem to show lapses that likely rise above negligence. Therefore, the Court

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finds that Carmichael has shown a likelihood of success on his Eight Amendment claim

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of deliberate indifference, specifically as it relates to his back condition.

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B.

Irreparable Injury

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Defendants argue that Carmichael is currently under a “lay-in order” which

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prevents him from lifting more than 10 pounds, and that there are no plans to relocate

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Carmichael from NNCC. Therefore, according to the Defendants, the injuries addressed

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by the preliminary injunction are speculative. They argue that the preliminary injunction

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merely enforces the status quo, and there is no immediate threat of any harm. (ECF No.

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46 at 5.)

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That the injunction enforces the status quo is of no consequence because, of

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course, that is what most preliminary injunctions do. See Regents of Univ. of California v.

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Am. Broad. Companies, Inc., 747 F.2d 511, 514 (9th Cir. 1984) (“[T] the function of a

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preliminary injunction is to preserve the status quo ante litem.”). Carmichael has shown

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(and Defendants do not contend otherwise) that he would suffer pain and perhaps a

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worsening of his condition if required to travel by bus or lift heavy loads. As the

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Magistrate Judge correctly noted, though there are no current plans to transfer

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Carmichael, he could be transferred at any time for disciplinary or medical reasons.

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Furthermore, the record contains inconsistencies in regards to the specifics of

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Carmichael’s “lay-in order” — providing little assurance that the “lay-in order” is sufficient

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to prevent Carmichael from being required to carry more than 10 pounds.
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The Court agrees with the Magistrate Judge’s conclusion that Carmichael has

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shown a likelihood of irreparable harm.

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C.

Balance of Hardships

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Defendants, appropriately, cite the heighted requirements imposed by 18 U.S.C. §

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3626 when considering preliminary injunctive relieve with respect to prison conditions.

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Defendants then repeat their assertion that Carmichael does not face any immediate

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harms and has not established a likelihood of success on the merits of his claim. They

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go on to argue that issuing a preliminary injunction (mandating conditions that they have

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acknowledged simply enforce the status quo) somehow significantly interferes with

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NDOC operations by “allow[ing] an inmate to ignore the well-established administrative

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regulations and prevent the NDOC from addressing this issue before outside

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involvement is warranted.” (ECF No. 46 at 6.)

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The Court agrees with the Magistrate Judge that the balance of harms clearly

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weighs in Carmichael’s favor. The only burden placed on Defendants are the

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requirements that medical professionals be consulted before Carmichael is moved and

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that they comply with their own 10-pound weight limit identified in the “lay-in order.” On

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the other side of the scale, Carmichael faces substantial pain and possible complication

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of his back condition. The Court further finds that the preliminary relief complies with the

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heightened statutory requirements for addressing prison conditions. The relief is

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“narrowly drawn, … extend[s] no further than necessary to correct the harm,” and is “the

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

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D.

Public Interest

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Defendants argue that an injunction does not serve the public interest because

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Carmichael has not shown a likelihood of success on his claim. The Court disagrees, for

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the reasons discussed above, and reiterates that “it is always in the public interest to

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prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d

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990, 1002 (9th Cir. 2012).

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///
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V.

CONCLUSION
It

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is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 43) be accepted and

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adopted

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Order/Preliminary Injunction (ECF Nos. 3, 4) is granted as follows:

in

full.

Plaintiff’s

Emergency

Motion

for

Temporary

Restraining

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(1) Plaintiff is precluded from lifting anything greater than ten pounds, consistent

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with the current “lay-in” order in place, until and unless it is medically determined

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otherwise.

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(2) If Plaintiff is to be transferred to another NDOC facility, his medical care

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providers, including any specialists, shall be consulted to determine a mechanism for

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safe transport in light of his medical conditions before he is transported.

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(3) This preliminary injunction applies to the Defendants named in this action and

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their officers, agents, servants, employees and attorneys. Fed. R. Civ. P. 65(d)(2)(A),

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(B).

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(4) The preliminary injunction shall remain in place pending a full determination of
Plaintiff’s claims upon the merits or upon further order of the court.
DATED THIS 2nd day of May 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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