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Hollis v. Harrington


April 27, 2009


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge



Plaintiff, a state prisoner confined at Ironwood State Prison ("ISP"), filed a complaint pro se and in forma pauperis under 42 U.S.C. § 1983 for monetary and injunctive relief. The complaint alleges that ISP correctional officials and medical staff members were deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights.

On March 4, 2009, plaintiff filed a motion for a temporary restraining order ("TRO") and a preliminary injunction ("Motion for TRO") on the grounds that (1) he was threatened with irreparable harm because, beginning on February 15, 2009 and continuing through at least March 2, 2009, when plaintiff mailed his motion for TRO, defendant Harrington, a nurse at ISP, and other ISP medical staff members intentionally denied him prescribed treatment, or adequate treatment, for serious medical needs consisting of "extremely high" blood pressure, chest pain, light-headedness, severe flank pain, heart disease, a diagnoses of diabetes received on February 25, 2009, right eye damage, kidney problems, and "massive swelling in his lower abdomen"; (2) the suffering and injury he sustained as a result of defendants' conduct tipped the balance of hardships in his favor; and (3) granting him relief will serve the public's interest in requiring prison officials to obey the law. [Motion for TRO 1-5]. Plaintiff seeks an order requiring defendants to comply with care already prescribed and directing that he be immediately transferred to a medical facility with a cardiologist and neurologist on staff (specifically, either California Men's Colony ("CMC") or California Medical Facility ("CMF"), examined by suitable specialists, and treated according to their orders. [Motion for TRO 4]. Plaintiff contends that he should not be required to post security because he is indigent. [Motion for TRO 5].

Defendant Debra Herndon, Warden of ISP, was served with the summons and complaint. An order was issued requiring a response to plaintiff's motion for a TRO and preliminary injunction. Defendants R. Harrington, C. Bato, L. Bonnett, D. Holbrook, M.A. Smelosky and Herndon filed an opposition to the motion ("Defendants' Opposition"). Defendants also filed the following supporting declarations with attached exhibits: (1) the declaration of Nickolas Lind, M.D., one of plaintiff's treating physicians at ISP ("Lind Decl."); (2) the declaration of Margaret Harrington (erroneously sued as R. Harrington), a registered nurse at ISP ("Harrington Decl."); and (3) the declaration of Jim Browder, Assistant Classification and Parole Representative at ISP ("Browder Decl."). On April 2, 2009 and April 15, 2009, plaintiff filed reply memoranda.*fn1


A. Standards for Obtaining Injunctive Relief

"The basis for injunctive relief is irreparable injury and inadequacy of legal remedies." Multnomah Legal Servs. Workers Union v. Legal Servs. Corp, 936 F.2d 1547, 1552-1553 (9th Cir. 1991). A preliminary injunction is an "extraordinary remedy" that may be granted only where the plaintiff "makes a clear showing" that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., -U.S.-, 129 S.Ct. 365, 374-376 (2008)(rejecting as "too lenient" an alternative formulation applied by the Ninth Circuit authorizing preliminary injunctive relief when a plaintiff demonstrates a strong likelihood of success on the merits but only a "possibility" of irreparable harm); see American Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1053 (9th Cir. 2009)(following Winter). In addition, under the Prison Litigation Reform Act, preliminary injunctive relief with respect to prison conditions "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." 18 U.S.C. § 3626; see Gomez v. Vernon, 255 F.3d 1118, 1129-1130 (9th Cir. 2001). The standard for issuing a temporary restraining order is the same as for a preliminary injunction. See New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg Intern. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); see also Fed. R. Civ. P. 65(b).

Defendants oppose plaintiff's motion on the ground that plaintiff seeks to "inflame the Court" to order his transfer with "inaccurate" claims regarding the denial of medical care, and that plaintiff has been receiving, and will continue to receive, appropriate medical treatment at ISP in conjunction with Palo Verde Hospital. [Defendants' Opposition 1, 7-9]. Defendants further contend that plaintiff impermissibly seeks preliminary injunctive relief that would not to preserve the status quo, but instead would dramatically alter it by granting "one of his ultimate goals" in this litigation, a transfer to CMC or CMF. [Defendants' Opposition 1, 4-5]. Defendants also argue that that plaintiff has no federal right to be transferred to a facility of his choice, and that in any event, the only named defendant identified in the motion for TRO lacks authority to order his transfer or to grant the additional relief plaintiff requests. [Defendants' Opposition 1, 6-7, 8-9].

B. Lack of Irreparable Injury

Defendants contend that plaintiff has failed to carry his burden to show that he will suffer irreparable injury absent preliminary injunctive relief.

The Supreme Court's "frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375 (italics in original). Based on the moving and opposing papers, plaintiff has not made a clear showing that irreparable injury is likely absent preliminary injunctive relief.

In his declaration, Dr. Lind, an ISP physician who has treated plaintiff for coronary artery disease, high blood pressure, "and other medical reasons since at least 2007," states that plaintiff has been receiving, and will continue to receive, appropriate treatment for his medical conditions. [Lind Decl. 2-9]. According to Dr. Lind's testimony and ISP treatment reports attached as exhibits to his declaration, plaintiff was seen by Nurse Matthews on February 19, 2009 in the "Treatment and Triage Area, which serves as [ISP's] emergency room, for chest wall pain and groin pain." [Lind Decl. 4 & Exhibit ("Ex.") 2]. Plaintiff already was taking the antibiotic Cipro for flu, and he had orders for Motrin and Tylenol. He did not have shortness of breath or dizziness when examined by Nurse Matthews, who called Dr. Jaime, a nonparty, and pursuant to his orders gave plaintiff Tylenol for pain and Maalox for heartburn and gastroesophageal reflux disease. She referred plaintiff for a consultation with a physician the following day, February 20, 2009. [Lind Decl. 4 & Ex. 2].

On February 20, 2009, plaintiff was seen in follow-up by ISP physician Dr. Williams, a nonparty. Plaintiff denied current chest pain and shortness of breath, and denied any dizziness, nausea, or vomiting. His blood pressure was 154/94. Dr. Williams diagnosed chest wall pain, chronic and intermittent; BPH (benign prostate hypertrophy, an enlargement of the prostate gland); and hypertension. [Lind Decl. Ex. 3]. Dr. Williams increased plaintiff's dosage of Hytrin, which was prescribed to improve blood pressure and urinary flow. [Motion for TRO 2; Lind Decl. 4-5 & Ex. 3]. Dr. Williams also prescribed Lisinopril, a blood pressure medication, and ordered regular blood pressure checks over the next four weeks so that he could evaluate plaintiff at a follow-up appointment in one month.[Lind Decl. 4-5 & Ex. 3].

Dr. Lind characterizes plaintiff's blood pressure reading on February 20, 2009 as "elevated but at a manageable level." [Lind Decl. 5]. Dr. Williams "properly prescribed an increased dosage of Hytrin," a medication that causes blood vessels to relax and expand, and muscles in the prostate bladder neck to relax, for plaintiff's blood pressure and bladder problems. [Lind Decl. 5 & Ex. 3]. Because Hytrin lowers blood pressure, "dizziness and fainting are common side effects" when the medication is started or its dosage increased. [Lind Decl. 5]. Other possible adverse effects are "fast or pounding heartbeats, light-headedness, swelling in hands, ankles, or feet, pain or long penis erections, weakness, headaches, numbness or tingly feelings, stuffy nose, or blurred vision." [Lind Decl. 5-6]. Side effects vary among individuals, and the ISP "medical staff did not have any indication that [plaintiff] would experience these side effects from his increased dosage of Hytrin...." [Lind Decl. 6].

On the morning of February 24, 2009, however, plaintiff experienced what Dr. Lind describes as an apparent reaction to the increased Hytrin dosage. [Lind Decl. 6 & Ex. 4]. Plaintiff reported dizziness, light-headedness, blurred vision, nausea, vomiting, racing pulse, and chest pain. [Motion for TRO 2-3; Lind Decl. 6 & Ex. 4]. Hytrin was discontinued, and plaintiff's symptoms were treated with Phenergan, a medication for nausea and vomiting that also acts as a tranquilizer. Plaintiff's symptoms persisted until evening, when Dr. Lind ordered nitroglycerin, intravenous fluids, an EKG, and Maalox, and ultimately ordered plaintiff transported to Palo Verde Hospital, where he was hospitalized from February 24-26, 2009. [See Motion for TRO 3; Lind Decl. 6 & Ex. 4].

The record does not include evidence of the treatment administered at Palo Verde Hospital; however, plaintiff alleges that a Palo Verde physician diagnosed him with diabetes on February 25, 2009. [Motion for TRO 3]. He also alleges that after his discharge, he received no treatment either for diabetes or for his other conditions at ISP. [Motion for TRO 3-4].

Dr. Lind disputes those assertions. He states that there is no diagnosis of diabetes in plaintiff's medical records. Rather, the only new diagnosis plaintiff received at Palo Verde Hospital was constipation. Dr. Lind says that plaintiff was already receiving at ISP all of the medications recommended by hospital physicians on plaintiff's discharge (other than magnesium for constipation). [Lind Decl. 7-8 & Ex.3].

Plaintiff was seen by Dr. Williams at ISP for follow-up on March 13, 2009 (after plaintiff filed the motion for a TRO), and lab tests were conducted a few days later. [Lind Decl. 5 & Exs. 5-6]. Plaintiff complained to Dr. Williams of back pain, numbness, weakness, and right groin pain. He also was concerned about the condition of his heart and prostate. The diagnoses were coronary artery disease, hypertension, right groin pain, back pain, and BPH. Dr. Williams prescribed Flomax, a drug Dr. Lind characterizes as an acceptable substitute for Hytrin, to improve urination. For plaintiff's back pain, Dr. Williams prescribed Robaxin 750 milligrams four times a day and naproxen 500 milligrams twice a day, as needed. A referral to a cardiologist had been made in December 2008, but no appointment had been scheduled yet. An MRI was ordered to rule out causes for the back pain other than "simple sciatica" (but there is no indication that the MRI has been conducted). [Lind Decl. 7 & Exs. 5-6]. Plaintiff's lab tests were within normal limits. His PSA test was negative for cancer. He had a normal blood glucose level, negative for diabetes. [Lind Decl. 7 & Ex. 5-6].

Dr. Lind says he is unaware of the "massive swelling" of his abdomen that plaintiff complains of, or of any kidney problems, but he notes that plaintiff's history of urinary, bladder, and prostate problems was and is being treated at ISP (formerly with Hytrin and now with Flomax). [Lind Decl. 8-9]. Dr. Lind adds that although plaintiff believes that he suffered a stroke, there is "no evidence plaintiff has suffered any stroke." [Lind Decl. 9]. Dr. Lind further asserts that plaintiff's complaints of eye damage are exaggerated, and that he simply has myopia with astigmatism correctable to 20/20 vision with glasses, which he was prescribed on February 5, 2009. Plaintiff indicated he would order glasses "from the outside." [Lind Decl. 9 & Ex. 7].

Dr. Lind corroborated plaintiff's allegation that he had been denied scheduled dental work (a filling) because his blood pressure was too high on two dates in February, before his hospitalization. Dr. Lind maintains that plaintiff also had the flu on one of those days, and on another plaintiff signed a statement refusing medical treatment when the dentist attempted to refer plaintiff for treatment on account of his high blood pressure reading. [Lind Decl. 3-4 & Ex. 1]. On March 19, 2009, the dentist concluded that plaintiff's blood pressure was still too high, but noted that plaintiff had reported consuming a lot of coffee that day. Dr. Williams and the dentist agreed to wait and see how plaintiff responded to the Flomax before proceeding with his dental work. [Lind Decl. 7-8].

Dr. Lind opines that plaintiff has received proper and careful treatment for his high blood pressure and other medical conditions. The medical staff at [ISP] has not been intentionally indifferent to his physical complaints and has tried to address his problems with the medications available. At this time, it is my opinion that the medical staff at [ISP], in conjunction with the medical staff at Palo Verde Hospital, can treat [plaintiff's] medical problems as needed. To the best of my knowledge, no chrono has been issued yet requesting [plaintiff's] medical transfer to another prison or medical facility. [Lind Decl. 8].

Viewed in the context of the evidence presented by defendants, plaintiff's motion does not clearly show the requisite likelihood that he will be irreparably injured if preliminary injunctive relief is not granted. His motion should be denied on that basis. See Winter, 129 S.Ct. at 375.. C. Plaintiff seeks to significantly alter, rather than preserve, the status quo

Although the absence of a clear showing of the likelihood of irreparable injury alone is fatal to plaintiff's motion, it also is defective in that it seeks not merely to preserve the status quo until trial, but to dramatically alter it by obtaining plaintiff's transfer to CMC or CMF. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)("The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held."). Plaintiff concedes, moreover, that he has been seeking a transfer to CMC or CMF since at least November 21, 2007, well before the time period covered by his motion for TRO, because those facilities are closer to his family members. [Defendants' Opposition 1; Plaintiff's Reply to Declaration 2]. The prayer for relief in plaintiff's complaint makes this explicit: "[P]laintiff prays... for transfer to a medical facility state prison close to Plaintiffs' [sic] family members, CMC, or CMF." [Complaint at 5-of-2]. Plaintiff has no constitutional right to transfer to a facility of his choice or to be closer to family members, and a district court lacks the authority to order a transfer on that basis. See generallyOlim v. Wakinekona, 461 U.S. 238, 248 (1983); Meachum v. Fano, 427 U.S. 215, 224-225 (1976). Bearing in mind that a TRO and a preliminary injunction must be narrowly drawn, extend no further than necessary, and be the least intrusive means to remedy the alleged harm, plaintiff's history of seeking a transfer to CMC or CMF to be closer to his family also undermines the credibility of his assertion that a transfer to one of those facilities is necessary on medical grounds.

D. The Defendant Against Whom The TRO Is Directed Lacks Authority To Provide The Requested Relief

The motion for a TRO identifies only one ISP medical staff member who is a named defendant in this action, Margaret Harrington (erroneously sued as R. Harrington), a registered nurse employed at ISP. [Motion for TRO 1-2]. Plaintiff alleges that Harrington "knowingly and deliberately" treated him with only Maalox for the serious symptoms he experienced from February 15 through 19, 2009. Harrington, however, states in a declaration that she was off from work at ISP from February 15 through 17, 2009. [Harrington Decl. 2]. Harrington does not recall treating plaintiff on February 18 or 19, 2009, and her review of his medical chart shows no notations by her on those dates; instead, notations were made by Nurse Matthews. Dr. Lind also identified Nurse Matthews as the nurse who made entries on plaintiff's chart and treated plaintiff in the Triage and Treatment Area on February 19, 2009. On that date, Nurse Matthews dispensed Maalox and Tylenol on a physician's orders and referred plaintiff to see a physician the following day. [Harrington Decl. 2-3; Lind Decl. 4 & Ex. 2].

Harrington also states that she could not have provided the treatment to which plaintiff asserts he was and is entitled because, as a nurse, she lacks authority to prescribe any medication for inmates, even on an emergency basis; when seeing inmates in the triage area, she has authority to dispense no more than a single dose of a medication prescribed by an ISP physician. [Harrington Decl. 3-4]. Harrington adds that she has no involvement in classification or transfer decisions. [Harrington Decl. 4]. Accordingly, plaintiff's motion is defective because he seeks preliminary injunctive relief only against a defendant who lacks authority to provide any of the relief he seeks.


For the reasons described above, plaintiff has not demonstrated grounds for issuance of a TRO or a preliminary injunction. Accordingly, plaintiff's motion should be denied.

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