Heilbrun v. Villianueva et al

Filing 217

Opinion and Order - Plaintiff's "Motion to Continue Plaintiff on His Previous Regimen of Medical and Full Access to the Law Library" (Dkt. 189 ) is DENIED. Signed on 6/6/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL HEILBRUN,
Plaintiff,

Case No. 3:14-cv-1706-SI
OPINION AND ORDER

v.
HEATHER VILLANUEVA, et al.,
Defendants.
Michael Elbert Heilbrun, SID #11035478, Oregon State Penitentiary, 2605 State Street, Salem,
OR 97301, pro se.
Ellen F. Rosenblum, Attorney General, and Vanessa A. Nordyke, Assistant Attorney General,
DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem, OR 97301. Of Attorneys for Defendants
Acarregui, Akana-Seawater, Archer, Bauer, Boman, Callahan, Clayton, Cochell, Deacon, Dieter,
Edison, Enriquez, Espinoza, Eynon, Frazier, Giblin, Gruenwald, Hoskins, Hunter, Jorgensen,
Lytle, McFarland, Miller, Milligan, Myrick, Norton, Oregon Department of Corrections, Peters,
Piper, Robbins, Rowell, Shelton, Steffey, Vanderkooy, Villanueva, Wanous, Willis, Wilson,
Zumwalt.
Michael H. Simon, District Judge.
Plaintiff Michael Heilbrun filed this pro se prisoner rights suit on October 27, 2014.
Dkt. 1. Plaintiff’s amended complaint alleges a number of constitutional claims under 42 U.S.C.
§ 1983, including deliberate indifference, deprivation of due process, and violations of freedom

PAGE 1 – OPINION AND ORDER

of speech, against the Oregon Department of Corrections (“ODOC”) and several of its
employees. Dkt. 94. Plaintiff’s claims arise from the time in 2014 and 2015 when he was housed
at the Coffee Creek Correctional Facility and the Two Rivers Correctional Institution (“TRCI”).
Id. at 3. On December 7, 2015, the ODOC transferred Plaintiff from TRCI to the Oregon State
Penitentiary (“OSP”). Dkt. 191 ¶¶ 2-3. Defendants have moved for partial summary judgment
(Dkt. 150) and for summary judgment (Dkt. 158). Plaintiff’s responses to these motions are due
July 18, 2016. Dkt. 209.
Now before the Court is Plaintiff’s “Motion to Continue Plaintiff on His Previous
Regimen of Medication and Full Access to the Law Library” (Dkt. 189). Plaintiff makes two
requests in his motion: (1) that the Court enter an order allowing Plaintiff access to the OSP law
library for five full days a week until judgment is entered in this case; and (2) that the Court enter
an order returning Plaintiff to his former regimen of pain medication until judgment is entered in
this case or until he receives surgery for his herniated disc. Id. ¶¶ 6, 8.
The Court construes Plaintiff’s requests as motions for preliminary injunctive relief
regarding his access to the law library and prescription of pain medication. See Bernhardt v. L.A.
Cty., 339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to construe pro se pleadings
liberally, including pro se motions as well as complaints.”). The Ninth Circuit has held that
“there must be a relationship between the injury claimed in the motion for injunctive relief and
the conduct asserted in the underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s
Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). The Ninth Circuit explains the nature of the
required relationship as follows:
[It] requires a sufficient nexus between the claims raised in a
motion for injunctive relief and the claims set forth in the
underlying complaint itself. The relationship between the
preliminary injunction and the underlying complaint is sufficiently
PAGE 2 – OPINION AND ORDER

strong where the preliminary injunction would grant “relief of the
same character as that which may be granted finally.” De Beers
Consol. Mines[ v. United States, 325 U.S. 212, 220 (1945)].
Absent that relationship or nexus, the district court lacks authority
to grant the relief requested.
Pac. Radiation, 810 F.3d at 636.
Applying this rule, Plaintiff’s motion for preliminary injunctive relief regarding his
access to the law library does not have a sufficient nexus or relationship to the underlying
amended complaint. Plaintiff did not plead a claim in his amended complaint regarding access to
the law library or courts, nor does his motion for injunctive relief request relief of the same
nature that ultimately may be granted in his lawsuit. See generally Dkt. 94. Thus, this Court lacks
authority to grant the relief requested. Pac. Radiation, 810 F.3d at 636. In the interest of judicial
economy, however, the Court explains below that even if Plaintiff’s motion for injunctive relief
for access to the law library is considered on the merits, the motion likely would be denied.
Regarding Plaintiff’s motion for reinstatement of his pain medication, Plaintiff’s
amended complaint brings a claim for deliberate indifference to his serious medical needs
resulting from the removal of his narcotic pain medication upon his arrival at TRCI in 2014.
Dkt. 94 at 21. Plaintiff is now alleging a deliberate indifference claim against Dr. Reed Paulson
for discontinuing his narcotic pain medications in 2016 while at OSP. Dkt. 213 at 1. Plaintiff did
not name Dr. Reed Paulson as a defendant in his amended complaint. See generally Dkt. 94.
Plaintiff’s amended complaint, however, does request injunctive relief regarding pain
medication. Id. at 38. Thus, a sufficient nexus between the claim raised in the motion for
injunctive relief and the claims set forth in the underlying amended complaint exists because “the
preliminary injunction would grant relief of the same character as that which may be granted
finally.” Pac. Radiation, 810 F.3d at 636 (quotation marks omitted). Accordingly, Plaintiff’s

PAGE 3 – OPINION AND ORDER

motion for a preliminary injunction returning Plaintiff to his former regimen of pain medication
properly is before the Court.
STANDARD
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that:
(1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable
harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff;
and (4) an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule
that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in
some circumstances, to justify a preliminary injunction).
The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s
alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship
balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the
other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction
may be granted “if there is a likelihood of irreparable injury to the plaintiff; there are serious
questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and
the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
Additionally, the Prison Litigation Reform Act provides:
In any civil action with respect to prison conditions, to the extent
otherwise authorized by law, the court may enter a temporary
restraining order or an order for preliminary injunctive relief.
Preliminary injunctive relief must be narrowly drawn, extend no
further than necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means necessary to
correct that harm. The court shall give substantial weight to any
PAGE 4 – OPINION AND ORDER

adverse impact on public safety or the operation of a criminal
justice system caused by the preliminary relief and shall respect the
principles of comity [between federal and state or local law] in
tailoring any preliminary relief. Preliminary injunctive relief shall
automatically expire on the date that is 90 days after its entry . . . .
18 U.S.C. § 3626(a)(2).
DISCUSSION
A. Law Library Access
In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held that “the fundamental
constitutional right of access to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.” Id. at 828. The Court clarified
in Lewis v. Casey, 518 U.S. 343 (1996), that “Bounds did not create an abstract, freestanding
right to a law library or legal assistance.” Id. at 351. Rather, Bounds requires a showing of actual
injury and a plaintiff must “demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.” Id. The Lewis Court explained
that a plaintiff may demonstrate actual injury in the following ways:
He might show, for example, that a complaint he prepared was
dismissed for failure to satisfy some technical requirement which,
because of deficiencies in the prison’s legal assistance facilities, he
could not have known. Or that he suffered arguably actionable
harm that he wished to bring before the courts, but was so stymied
by inadequacies of the law library that he was unable even to file a
complaint.
Id. at 351. Similarly, the Ninth Circuit has held that a plaintiff sufficiently alleged actual injury
under Lewis where the plaintiff claimed that he was denied access to the law library such that he
was prevented from filing a brief in support of his appeal of his state court conviction. Hebbe v.
Pliler, 627 F.3d 338, 342-43 (9th Cir. 2010).

PAGE 5 – OPINION AND ORDER

Plaintiff alleges that he has been denied full access to the law library at OSP due to
retaliation on the part of defendants. Specifically, Plaintiff states that his access to the law library
was decreased following a telephone conversation on March 4, 2016, between defense counsel
and the OSP law librarian. Dkt. 191 ¶¶ 5-6. Defendants explain that the OSP updated its rules
regarding inmate access to the law library on March 7, 2016. Dkt. 205 ¶ 4; Id. at 37. “Prison
officials of necessity must regulate the time, manner, and place in which library facilities are
used.” Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985). Even with the
rule changes, Plaintiff used the law library for 32 hours during March and for 22 hours during
April. Dkt. 216 ¶ 2.
At present, Plaintiff makes no showing of actual injury as required by Lewis. Plaintiff
does not allege, for example, that “a complaint he was prepared was dismissed” or that he was
“so stymied” by OSP law library rules that “he was unable even to file a complaint” or other
pleading that was nonfrivolous. Lewis, 518 U.S. at 351; Christopher v. Harbury, 536 U.S. 403,
414-16 (2002). If Plaintiff has a claim regarding his constitutional right of access to the courts,
such claim is not yet ripe. The Court notes that Plaintiff’s responses to Defendants’ motions for
summary judgment are due July 18, 2016. Dkt. 209. Defendants state that the updated OSP law
library rules include increased access to the law library during the 30-day period before a court
deadline. Dkt. 205 ¶ 4; Id. at 37.
Plaintiff has not shown a likelihood of success on the merits, or even serious questions
going to the merits, of a constitutional claim regarding access to the courts. See Winter, 555 U.S.
at 20; Dreyfus, 697 F.3d at 725. Accordingly, even if Plaintiff’s motion for injunctive relief for
access to the law library properly was before the Court, the motion likely would be denied.

PAGE 6 – OPINION AND ORDER

B. Medication Regimen
The government has an “obligation to provide medical care to those whom it is punishing
by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Deliberate indifference to serious
medical needs constitutes unnecessary and wanton infliction of pain, which is proscribed by the
Eighth Amendment. Id. at 104. To establish an Eighth Amendment violation under § 1983, a
prisoner must satisfy “both the objective and subjective components of a two-part test.” Toguchi
v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744
(9th Cir. 2002)). First, the plaintiff must show that the jail official deprived him of the “minimal
civilized measure of life’s necessities.” Id. (citation and quotation marks omitted). Second, he
must demonstrate that the jail official “acted with deliberate indifference in doing so.” Id.
(citation and quotation marks omitted). Under this standard, for example, a medical decision to
decline ordering an x-ray is not a constitutional violation, but is a matter for medical judgment.
Estelle, 429 U.S. at 107.
Here, Plaintiff alleges that he is receiving constitutionally-deficient medical care because
his pain medication regimen was discontinued. Plaintiff asserts that he has a herniated disc and a
vertebra fracture that require him to take medication for severe pain, including Tramadol and
Gabapentin. Dkt. 191 ¶ 7; Dkt. 191-1 at 7. According to Plaintiff, following defense counsel’s
telephone conversation on March 4, 2016, with the OSP law librarian, OSP staff denied Plaintiff
his pain medication, resulting in the unnecessary and wanton infliction of pain and the denial of
an acceptable medical treatment option. Dkt. 191 ¶¶ 8, 9.
Plaintiff met with Dr. Paulson on January 13, 2016, to discuss a neurosurgical evaluation
and recommendation by Dr. Michael J. Kinsman at Oregon Health and Science University.
Dkt. 204 at 2, 7-10. Dr. Kinsman opined that surgery is not warranted and that Plaintiff’s
Gabapentin and Tramadol should be increased. Id. at 9. Dr. Paulson agreed that surgery is not
PAGE 7 – OPINION AND ORDER

warranted, but notified Plaintiff that no strong indication for the use of Gabapentin exists and
that Plaintiff should expect that his prescription would be soon discontinued. Id. at 2, 7. Plaintiff
again saw Dr. Paulson on March 10, 2016. Id. at 2. At the March 10th appointment, Dr. Paulson
explained to Plaintiff that relevant medical guidelines did not recommend Gabapentin for pain
relief and ordered that Plaintiff’s prescription be discontinued, with his dosage tapered over the
course of six weeks.1 Id. at 2-3, 6. According to Plaintiff, he also discussed his Tramadol
prescription with Dr. Paulson at the March 10th appointment. Dkt. 214 ¶ 3. Plaintiff’s medical
records indicate that his Tramadol prescription was discontinued on March 14, 2016. Dkt. 214-1
at 15. Defendants assert that Plaintiff has access to ibuprofen and acetaminophen for pain relief.
Dkt. 204 at 3.
The discontinuance of Plaintiff’s pain medication in these circumstances likely does not
rise to the level of a constitutional infringement. Dr. Paulson determined that discontinuing
Plaintiff’s prescription for Gabapentin was warranted because no strong indication for its use
existed. Plaintiff was provided with over-the-counter pain relief. The prescription of pain
medication in these circumstances is not a life necessity. See e.g., Snipes v. DeTella, 95 F.3d 586,
591 (7th Cir. 1996) (failure to provide local anesthetic for pain does not suffice for an Eighth
Amendment claim); Jackson v. Multnomah County, 2013 WL 428456, at *4 (D. Or. Feb. 4,
2013) (providing Tylenol instead of narcotic pain medication is not a basis for an Eighth
Amendment claim); Salvatierra v. Connolly, 2010 WL 5480756, at *20 (S.D.N.Y. Sept. 1, 2010)
(providing ibuprofen instead of Percocet does not deprive an inmate of one of life’s necessities);
Fields v. Roberts, 2010 WL 1407679, at *4 (E.D. Cal. April 7, 2010) (refusing to prescribe
1

Plaintiff asserts that he had no such conversations with Dr. Paulson and that his medical
records have been falsified. Dkt. 213 ¶¶ 2, 5, 8. The Court does not find this assertion to be
credible.
PAGE 8 – OPINION AND ORDER

narcotic pain medication even when an outside doctor recommended it is a difference in medical
opinion on the proper course of treatment and is not a basis for an Eighth Amendment claim).
Jail and prison officials have broad discretion to determine medical care, and an inmate is
not entitled to the treatment he wants. Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970).
Differing treatment options are at the reasonable discretion of the medical professionals, and
even if the decisions relating to Plaintiff’s pain medication are medically erroneous (which is not
evident from the record), they likely cannot be characterized as a disregard of an excessive risk
of inmate health. Snipes, 95 F.3d at 591; see also Estelle, 429 U.S. at 107.
Plaintiff has not shown a likelihood of success on the merits, or even serious questions
going to the merits, of a constitutional claim regarding deliberate indifference to serious medical
needs. See Winter, 555 U.S. at 20; Dreyfus, 697 F.3d at 725. Accordingly, Plaintiff’s motion for
injunctive relief regarding the re-institution of his former regimen of pain medication is denied.
CONCLUSION
Plaintiff’s “Motion to Continue Plaintiff on His Previous Regimen of Medical and Full
Access to the Law Library” (Dkt. 189) is DENIED.
IT IS SO ORDERED.
DATED this 6th day of June, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 9 – OPINION AND ORDER