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Morris Mester v. Miller and Reed

June 23, 2011

MORRIS MESTER, PLAINTIFF,
v.
MILLER AND REED, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner, presently housed at Pleasant Valley State Prison, Coalinga, California ("PVSP"), proceeding without counsel. Plaintiff's motions for preliminary injunctive relief are now before the court. (Dkt. Nos. 69, 70, 71, 74, 78 & 80.) Pursuant to this court's briefing order, defendants filed an opposition to plaintiff's motions on May 25, 2011. (Dkt. No. 82.) Plaintiff did not file a reply. As discussed more fully below, plaintiff's motions for injunctive relief should be denied.

In his May 2, 2011 motion, plaintiff seeks a court order requiring plaintiff to be hospitalized. (Dkt. No. 69.) In plaintiff's May 3, 2011 motion, plaintiff seeks an order providing him single cell status or to be hospitalized for his polyneuropathy. (Dkt. No. 70.) In the May 5, 2011 motion, plaintiff complains about a lack of treatment at High Desert State Prison, but again reiterates his alleged need for hospitalization. (Dkt. No. 71.) Plaintiff avers he faces imminent harm from demyelinating polyneuropathy. (Id.) In plaintiff's May 9, 2011 motion, plaintiff claims Dr. Chokatos refused to (a) hospitalize plaintiff on April 28, 2011, (b) give plaintiff pain medication, and (c) refer plaintiff to another neurologist. (Dkt. No. 74.) Plaintiff claims he needs to be hospitalized immediately. Plaintiff argues that unidentified persons at PVSP have "literally stopped treating plaintiff, period, out of reprisals/discrimination." (Dkt. No. 75 at 1.) Plaintiff claims an unidentified doctor is ignoring plaintiff's severe demyelinating polyneuropathy. (Id.) Plaintiff states he has been denied surgery for his forearm and wrists. Plaintiff also claims he is in excruciating pain and that unidentified persons "refuse any kind of appropriate pain medicines to control severe pain that affects plaintiff's daily activities and sleep." (Dkt. No. 75 at 2.) Plaintiff asks the court to act immediately to get plaintiff to a hospital before he suffers irreparable injury. On May 16, 2011, plaintiff filed another motion claiming Dr. Chokatos makes false diagnoses. (Dkt. No. 78.) Plaintiff states he went to pain management on May 11, 2011, but was given "absolutely nothing for pain." (Dkt. No. 78 at 2.) Plaintiff states he "can literally die in [his] cell because of not establishing a diagnosis for this painful polyneuropathy coupled with excruciating pain." (Dkt. No. 78 at 3.) Plaintiff states he cannot leave his cell because of the severe pain. Plaintiff provided an incomplete copy of a March 1, 2011 medical record from Marshall S. Lewis, M.D., setting forth an impression of "severe degenerative osteoarthritis bilateral hips," and stating Dr. Lewis believes plaintiff requires evaluation for a total hip replacement and would be referred to Dr. Young Paik for evaluation. (Dkt. No. 78 at 5.) Plaintiff was prescribed Ultram for analgesia. (Id.) On May 18, 2011, plaintiff filed a motion to be hospitalized or transferred away from SVSP. (Dkt. No. 80.)

In opposition, defendants state that plaintiff is not in danger of irreparable injury because plaintiff's claim of medical emergency is false. (Dkt. No. 82 at 1.) Defendants provide the declaration of Dr. Duenas, a physician familiar with plaintiff's medical condition. Dr. Duenas opines that there is no indication plaintiff has an emergent medical condition or that he requires immediate hospitalization. (Dkt. No. 82-1 at 2.) Dr. Duenas opines that plaintiff "shows no evidence of respiratory or circulatory impairments that would require emergency treatment or hospitalization." (Id.) Dr. Duenas states that plaintiff "has received regular and frequent medical attention, including specialty consultations, medication, and treatment through providers at PVSP and through specialists via telemedicine and appointments outside the prison." (Id.) Dr. Duenas states that plaintiff has not been denied any medically necessary treatment or medication for his conditions. Defendants provided a May 3, 2011 Updated Summary of Problems, written by Dr. Chokatos, and setting forth specific information concerning plaintiff's medical complaints and treatment. Included is an assessment that a "total hip arthroplasty is not indicated at this time." (Dkt. No 82-1 at 9.) Dr. Chokatos noted that narcotics are not indicated because plaintiff's "calm demeanor and relatively unimpaired gait are not consistent with the intensity of pain alleged." (Id.)

In addition, Dr. Chokatos included a separate section entitled "Pain as a Separate Issue, Drug Seeking Behavior, Dissimulation," in which Dr. Chokatos describes plaintiff's history of "drug-seeking behavior with symptom exaggeration and manipulation, aimed at getting the largest amount of drugs and sedating medications possible." (Dkt. No. 82-1 at 10.) Dr. Chokatos noted that plaintiff has a chrono from May 9, 2007, documenting a videotape from April 23, 2007, in which [plaintiff] was videotaped playing basketball, running in place and completing an exercise routine of burpee's and sit-ups. When confronted over this by D.M. Perry, M.D. 12/21/2007, [plaintiff] alleged that this was "retaliation" and that it had been an "exaggeration" of his actual exercise pattern.

He also said that he would be more active if he was given the narcotics he is seeking. [At the time he was filmed participating in vigorous exercises he was being treated with narcotics for hip disease and was using an assist device (cane)].

(Dkt. No. 87-1 at 10.) Dr. Chokatos recounted plaintiff's objections to the prescription of crush-and-float morphine rather than immediate release morphine tablets. (Id.) In assessment, Dr. Chokatos found:

1. Evidence of a significant functional impairment due to pain or disease is absent.

2. [Plaintiff's] allegation that crushed morphine is ineffective compared to a tablet leads to one inescapable conclusion: he is seeking a more marketable form of that drug.

3. The prescribed opioid anodynes which [plaintiff] had been receiving for the past 20 years probably were never being used by the patient at all.

4. The diagnosis of epilepsy is not established. 5. The EMG finding demyelinating polyneuropathy is only that: an abnormal report. [Plaintiff] is functionally unimpaired.

(Dkt. No. 82-1 at 11.)

Plaintiff did not reply to defendants' opposition.

A temporary restraining order is an extraordinary and temporary "fix" that the court may issue without notice to the adverse party if, in an affidavit or verified complaint, the movant "clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." See Fed. R. Civ. P. 65(b)(1)(A). The purpose of a temporary restraining order is to preserve the status quo pending a fuller hearing. See generally, Fed. R. Civ. P. 65; see also, E.D. Cal. L. R. ("Local Rule") ...


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