Pritchett v. Gruenwald et al

Filing 28

ORDER: The Court DENIES Plaintiff's Motion For Restraining Order, Temporary & Preliminary Injunction 3 . IT IS SO ORDERED. Signed on 10/15/2013 by Judge Anna J. Brown. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
COREY JERRY PRITCHETT,
Case No. 2:13-cv-00896-BR
Plaintiff,
ORDER

v.
NURSE GRUENWALD, et al.,
Defendants.
BROWN, Judge.
an

Plaintiff,

inmate

at

the

Two

Rivers

Correctional

Institution ("TRCI"), brings this civil rights action pursuant to
42

U.S.C.

1983

§

pro

se.

Currently

before

the

Court

is

Plaintiff's "Motion for Restraining Order Temporary & Preliminary
Injunction"

(#3).

For the reasons that follow,

the Court DENIES

Plaintiff's motion.
BACKGROUND 1

Plaintiff is diabetic and a kidney patient who has been on
dialysis at TRCI since December 2010.

1

Except where otherwise indicated,
Plaintiff's verified Complaint.
1 - ORDER -

Dr.

Thayler,

an outside

the facts are taken from

consultant who personally visits
patients once a month,

and treats

all TRCI

entered an order that

dialysis

Plaintiff should

receive double trays at meal-times.
On December 11,

2012,

Dr.

Thayler informed Plaintiff that

Nurse Gruenwald ordered Plaintiff 1 s
Dr.

Thayler

informed

Plaintiff

double trays discontinued.

the

reason

Nurse

Gruenwald

discontinued his order for double trays was because Plaintiff was
observed giving away his extra food.

Plaintiff explained to Dr.

Thayler that he did give away high sugar foods,

because he was

medically unable to eat them, but that he did eat the other foods.
Plaintiff also explained that eating the extra food had allowed
him to gain weight for the first time.
On January 3, 2013, Plaintiff filed a grievance against Nurse
Gruenwald in which he stated he had lost
double trays were discontinued.
Washington

in

Support

of

10 pounds

since the

See Declaration of Michael R.

Defendant 1 s

Response

to

Plaintiff 1 s

Motion for Restraining Order, Temporary and Preliminary Injunction
(Doc.

#23)

(hereafter

"Washington

Decl. ") ,

Exh .

1.

In

the

Grievance Response Form he received back, Defendant Nurse Perkins
stated:
This letter is in response to the grievance noted above
in which you ask to have your double portions restored
as written by Dr. Thayler or a hearing.
You also ask
for financial compensation for weight loss, pain, and
suffering.
The orders of outside physicians are
reviewed and approved or not approved by the providers
here who know our patients best. There is no indication
2 - ORDER -

in your medical record that you have lost weight.
Health Services does not conduct hearings.
Financial
compensation is managed through the tort process, not
the grievance process.
Washington Decl., Exh. 2.
On January 13, 2013,
Nurse

Perkins'

response

Plaintiff filed his first appeal from
to

his

grievance.

Plaintiff

claimed

Defendant Gruenwald should not have interfered with Dr. Thayler's
directive that he receive double meals; health services denied him
due process by not providing him with a hearing before taking the
extra meals away; and, that medical staff did not check his weight
loss on the dialysis record, which shows weight loss in the last
month.

Washington Decl., Exh. 3.

On January 25, 2013, Dr. Steve

Shelton responded to Plaintiff's first grievance appeal, stating:
Dr. Thayler's orders are reviewed and approved by
Oregon Department of Corrections (ODOC) providers. Our
providers often know the patients here very well and
know their issues and history better than consulting
physicians do.
Ms. Gruenwald is not interfering with
his orders, it is her job to review and approve them.
You state that your dialysis records show a weight
loss.
After consulting with dialysis, it appears that
your weight fluctuates a few pounds up and down all the
time and that recently there was even a small weight
gain. There is nothing to indicate that you need extra
portions of food.
Washington Decl., Exh. 4.
On February 17, 2013,
appeal.

Washington

Decl.,

Plaintiff filed his second grievance
Ex h.

5.

Plaintiff

stated

Nurse

Gruenwald is not a kidney doctor and her review of his special

3 - ORDER -

diet of double meals was based on a rumor.

I d.

Plaintiff also

claimed that his weight in November when he was double meals was
77.5 kilograms, and in February it was 73 kilograms,
pound loss.

I d.

over a ten

Plaintiff also claimed he was being treated

differently from other similarly situated dialysis patients who
continued to receive double trays and that Nurse Gruenwald was
retaliating against Plaintiff because of complaints he had filed
against her.
On

March

Id.
4,

2013,

Assistant

Director

of

the

Operations

Divisions, Michael Gower, responded to Plaintiff's second appeal.
Mr. Gower stated:
In your previous grievance appeal, Dr. Shelton explained
conversations with dialysis staff have shown you are not
losing weight.
You state Ms. Gruenwald is not a kidney doctor; she is
one of the providers who is responsible to validate the
orders written by consulting providers.
As was
explained to you, this is done because the providers
here know your overall care and know the rules of the
DOC better.
You also state you are being treated differently than
other dialysis inmates.
This is not true.
We do not
order double portions unless we can consistently
document the need for them.
There is no medical
indication at this time for you to have double portions.
Washington Decl., Exh. 6.
On May 29, 2013, Plaintiff filed his Complaint and Motion for
Restraining Order, Temporary and Preliminary Injunction (hereafter
"Motion")

in this Court.

4 - ORDER -

Plaintiff's Complaint alleges,

inter

alia, a claim that Defendant Nurse Gruenwald violated Plaintiff's
right

to

be

free

discontinued Dr.

from

from

and

unusual

punishment

when

she

Thayler's order that Plaintiff should receive

double meal trays.
Defendants

cruel

Plaintiff's Motion seeks an Order enjoining

interfering with

Plaintiff's

medical

Plaintiff's

condition

condition.

In

his

Dr.

and

Thayler' s
any

other

Declaration

in

directives

for

treatment

for

support

of

his

Motion, Plaintiff states:
Because of
[Defendant Gruenwald's]
actions
I
am
suffering ongoing health hazard and harm, weight loss of
over 10 pounds (which is significant for me), loss of
energy, pain and suffering and mental distress and other
medical problems.
Plaintiff's Declaration in Support of Motion (Doc. #5), p. 2.

LEGAL STANDARDS
A party seeking a preliminary injunction must demonstrate:
(1)

it is likely to succeed on the merits,

(2)

it is likely to

suffer irreparable harm in the absence of preliminary relief,
the balance of equities tips in its favor,
is in the public interest.
555 U.S.

(3)

and (4) an injunction

Winter v. Natural Res. Def. Council,

7,

129 S.Ct.

365,

374

(2008) .

preliminary

injunction

test

are

balanced,

"The elements of the
so

that

a

stronger

showing of one element may offset a weaker showing of another. For
example, a stronger showing of irreparable harm to plaintiff might
offset a lesser showing of likelihood of success on the merits."

Alliance For The Wild Rockies v.
5 - ORDER -

Cottrell ,

632 F. 3d 1127,

1131

(9th Cir. 2011)
the

Ninth

(citing Winter, 129 S.Ct. at 392).

Circuit

has

held

"'serious

Accordingly,

questions

going

to

the

merits' and a balance of hardships that tips sharply towards the
plaintiff can support issuance of a preliminary injunction,

so

long as the plaintiff also shows that there is a likelihood of
irreparable
interest."

injury

and

that

the

injunction

is

in

the

public

Id.

"An injunction is a matter of equitable discretion" and is
"an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief."
129 S.Ct.

at

376,

381.

Ordinarily,

a

Winter,

preliminary injunction

maintains the status quo pending a final decision on the merits.
University of Te x as v.

Camenisch,

451 U.S.

390,

395

(1981).

A

"mandatory injunction" altering the status quo by granting, before
trial, the very relief sought in the action is appropriate only in
LGS Architects,

extraordinary circumstances.

Inc.

V.

Concordia

Homes of Nevada, 434 F. 3d 1150, 1158 (9th Cir. 2006), overruled on
other grounds, Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th

Cir. 2011).
ANALYSIS

In order to prevail on an Eighth Amendment claim for the
denial

of

adequate

medical

care,

Plaintiff

must

prove

that

Defendants were deliberately indifferent to his serious medical

6 - ORDER -

needs.

429 U.S. 97, 104-105 (1976); Lopez v.

Estelle v. Gamble,

Smith, 203 F.3d 1122, 1131 (9th Cir.2000).

Prison officials are

deliberately indifferent to a prisoner's serious medical needs
when they deny,
treatment.

delay or intentionally interfere with medical

Lopez, 203 F.3d at 1131; Jackson v. Mcintosh,

90 F.3d

330, 332 (9th Cir. 1996).
The indifference to medical needs must be substantial.
v. Housewright,

Wood

Inadequate

900 F.2d 1332, 1334 (9th Cir. 1990).

treatment due to malpractice or even gross negligence does not
constitute an Eighth Amendment violation.
Similarly,

1131.

a

difference

of

Id.; Lopez, 203 F.3d at

medical

opinion

between

a

prisoner and his treating physicians regarding the appropriate
course of treatment does not amount to deliberate indifference.
Jackson,

90 F.3d at 332.

On the record currently before the Court, Plaintiff fails to
establish a claim that the discontinuation of Dr. Thayler's double
tray order rises to the level of deliberate indifference to a
serious medical need.
and

suffered pain

and

While Plaintiff states he has lost weight
other medical

Gruenwald discontinued the

double

problems

trays,

evidence in support of this statement.
submitted by Defendants,
medical

or

other

7 - ORDER -

records

Plaintiff
Moreover,

while it does not
of

Plaintiff's

since

Defendant
submits

no

the evidence

contain any actual

status

following

the

change in meal orders, suggests Plaintiff's claim of weight loss
may be exaggerated.
In the absence of any concrete evidence of a serious medical
need,

Plaintiff has not established either that he is likely to

suffer irreparable harm or a likely of success on the merits of
his claim.

Accordingly,

an injunction requiring Defendants to

reinstate Dr. Thayler's double tray order is not warranted.

CONCLUSION
For these reasons,

the Court DENIES Plaintiff's Motion For

Restraining Order, Temporary & Preliminary Injunction (#3).
IT IS SO ORDERED.
DATED this

(~day

of October, 2013 .

~fowt]
United States District Judge

8 - ORDER -

\\ord . local\shares\Shares\Brown- LawClerks\13 - 896pritchettl009o r der . wpd