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Hollis v. Harrington

April 27, 2009

ROBERT D. HOLLIS, PLAINTIFF,
v.
R. HARRINGTON, ET AL., DEFENDANTS.



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

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Proceedings

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

Discussion

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 ...


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