Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burnett v. Dugan

May 6, 2009

ESTER BURNETT, CDCR #V-35245, PLAINTIFF,
v.
DUGAN; KINJI L. HAWTHORNE; BROWN; FRAZE; D. KHATRI; VICTOR ALMAGER; BARRERAS, DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION PURSUANT TO FED.R.CIV.P. 65 [Doc No. 25]

I. PROCEDURAL HISTORY

Currently before the Court is Plaintiff's Motion for Emergency Restraining Order and Preliminary Injunctive Relief pursuant to FED.R.CIV.P. 65 [Doc No. 25].

Ester Burnett ("Plaintiff"), is a prisoner proceeding in pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Among the allegations in his Complaint, Plaintiff claims that prison officials at California State Prison, Centinela ("CEN") have violated his Eighth Amendment rights by failing to provide him with adequate medical care and failing to accommodate his disability. The Court sua sponte screened Plaintiff's Complaint and initially dismissed it for failing to state a claim upon which § 1983 relief could be granted. (See Sept. 29, 2008 Order at 6-7.) Plaintiff filed his First Amended Complaint ("FAC") on November 24, 2008 [Doc. No. 11]. The Court once again screened Plaintiff's FAC and found that the allegations in Plaintiff's FAC survived the sua sponte screening process required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See Dec. 10, 2008 Order at 2.) The Court further found that Plaintiff was entitled to U.S. Marshal service on his behalf. (Id.)

On March 19, 2009, Plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction [Doc. No. 25]. The Court deemed Plaintiff's motion as a motion for preliminary injunction and issued a briefing schedule. Defendants were directed to file a response to Plaintiff's Motion. (See Mar. 23, 2009 Order at 1.) Defendants' filed their response to Plaintiff's Motion on April 13, 2009 [Doc. No. 29]. The Court permitted Plaintiff to file a response to Defendants' Opposition [Doc. Nos. 31, 33].

II. FACTUAL ALLEGATIONS

In his Motion for Preliminary Injunction, Plaintiff alleges that he had back surgery performed by Dr. Calvin on June 27, 2008. (Pl.'s Mot. at 3.) As a result of his surgery and ongoing medical issues related to his back, Dr. Calvin ordered that Plaintiff be housed in a "single cell with single bed without overhead bunk or any overhead obstruction due to medical condition." (Id.) Plaintiff was housed in this manner in the Centinela State Prison Correctional Treatment Center until February 20, 2009 when he was transferred to Calipatria State Prison ("CAL"). When Plaintiff arrived at CAL he informed prison officials of his medical needs and showed them the Doctor's orders demonstrating his specific housing requirements. (Id. at 4.) Plaintiff indicates that he informed the medical personnel at CAL that he was in severe pain but they refused to permit Plaintiff to be examined by a Doctor. (Id.)

Plaintiff returned to CEN on February 27, 2009 and was informed that he would no longer be housed in the treatment center. (Id.). Instead, Plaintiff was housed in a double cell with a bunkbed in violation of Dr. Calvin's medical orders. (Id.) The nurse informed Plaintiff that she had received a fax from Dr. Calvin indicating that Plaintiff no longer needed such housing requirements but refused to show Plaintiff the documentation. (Id.) Plaintiff contends that recent testing shows Plaintiff suffers from severe nerve damage in his right lag and he suffers from extreme pain. (Id. at 5.) Plaintiff has attached two medical "chronos" to his Motion that are dated January 21, 2009 and signed by Samuel Ko, M.D. (See Pl.'s Mot., Exhibit "A.") These chronos state "[Plaintiff] is to be in a single cell bed in General Population because of a medical condition," and "[Plaintiff] requires a medical accommodation for single bed without overhead bunk or any overhead obstruction due to medical condition." (Id.) In addition, Plaintiff has attached a "Comprehensive Accommodation Chrono" which appears to be signed by a "Davenport," dated February 6, 2009 with the handwritten notes "single bunk - no overhead objections - i.e. upper bunk." (See Pl.'s Mot., Exhibit "B.")

Plaintiff has also filed a "Declaration in Further Support of Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction" in which he alleges to have been examined by Dr. Calvin on April 9, 2009 [Doc. No. 33]. (See Pl.'s Decl. at 1.) In this Declaration, Plaintiff claims Dr. Calvin denied ever informing any prison officials that Plaintiff no longer needed the housing specified in the medical chronos. (Id.)

Plaintiff seeks an Order from this Court ordering Defendants to provide him with the housing directed in the medical chronos in compliance with Dr. Calvin's original medical orders and the prevention of any further prison transfers unless Plaintiff is provided the appropriate housing. (Pl.'s Mot. at 5.)

III. LEGAL STANDARD

A. Generally

In order to demonstrate the need for preliminary injunctive relief a party must show: "1) a strong likelihood of success on the merits, 2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, 3) a balance of hardships favoring the plaintiff, and 4) advancement of the public interest (in certain cases)." Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005). Where a party demonstrates that a public interest is involved, a "district court must also ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.