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Vincente Garcia v. A. Joaquin

February 17, 2011

VINCENTE GARCIA,
PLAINTIFF,
v.
A. JOAQUIN, ET AL., AND PRELIMINARY INJUNCTIONS DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL, WITHOUT PREJUDICE, OF PLAINTIFF'S MOTIONS FOR TEMPORARY RESTRAINING (ECF Nos. 4 & 12)

ORDERS OBJECTIONS DUE WITHIN THIRTY DAYS

I. PROCEDURAL HISTORY

Plaintiff Vincente Garcia ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originally filed this action on April 27, 2010. (ECF No. 1.) He later filed an amended complaint on August 2, 2010. (ECF Nos. 13.) No other parties have appeared in this action. The Court has yet to screen Plaintiff's amended complaint.

Pending before the Court are Plaintiff's two motions filed April 27, 2010 and June 24, 2010; both request the same temporary restraining orders and preliminary injunctive relief.*fn1 (ECF Nos. 4 & 12.)

II. ARGUMENT

In the Motions, Plaintiff complains:

He is not receiving adequate medical care for his diabetic condition. Despite exercise, diet and three shots of insulin and three blood sugar level checks daily, his diabetes is not effectively managed. Although doctors modify his dosages in response to his concerns, the mode of treatment remains unchanged.

Plaintiff has sent grievances, letters, and requests for an insulin pump. In response to one letter, Defendant Joaquin advised that the current treatment plan would be continued. Plaintiff disagreed, explained his suffering and again requested an insulin pump. Defendant explained that Plaintiff would not be given a pump because it would allow Plaintiff to eat when he wanted and because the needle necessary to the implant would pose a security risk. (ECF No. 4 p. 6; Pl.'s Mot. for TRO p. 6 ¶ 14.) Plaintiff suggested that such concerns could be overcome by putting him on single-cell status or moving him to the hospital. Defendant Joaquin again refused the pump. Plaintiff appealed. The appeal has been pending at the third level for a year.

Because of the inadequate medical care, Plaintiff suffers nerve damage, peripheral neuropathy, eye pain, dizziness/lightheadedness, and possible kidney failure. His "seriously low" blood sugar levels could cause brain damage, place him in a coma, or kill him.

III. LEGAL STANDARDS

A temporary restraining order (TRO) may be granted without written or oral notice to the adverse party or that party's attorney only if: (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or the party's attorney can be heard in opposition, and (2) the applicant's attorney certifies in writing the efforts, if any, which have been made to give notice and the reasons supporting the claim that notice should not be required. See Fed. R. Civ. P. 65(b).

The standards for a TRO are essentially the same as that for a preliminary injunction. To be entitled to preliminary injunctive relief, a party must demonstrate "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." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)). The Ninth Circuit has also held that the "sliding scale" approach it applies to preliminary injunctions as it relates to the showing a plaintiff must make regarding his chances of success on the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1052-53 (9th Cir. 2010). Under this sliding scale, the elements of the preliminary injunction test are balanced. As it relates to the merits analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. Id. In cases brought by ...


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