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Vincente Solomon v. J. Negrete

October 20, 2011

VINCENTE SOLOMON, PLAINTIFF,
v.
J. NEGRETE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By order, filed on October 18, 2011, service of process was directed upon the defendants. Prior to this order, on September 8, 2011 (docket # 41), plaintiff brought a motion for a court order to renew his pain medications. By order, filed on September 19, 2011 (docket # 43), this court directed defendant Dr. Tate to file a response to the motion. Dr. Tate's response, in the form of a declaration was filed on October 5, 2011 (docket # 48); defendant Tate having made an appearance in this case, no further service of process was required for him to be deemed served.*fn1

Plaintiff has repeatedly sought an "emergency transfer," and motions for various other forms of preliminary injunctive relief. See filings dated, April 25, 2011 (docket # 20), May 12, 2011 (docket # 22), June 3, 2011 (docket # 24), June 21, 2011 (docket # 28), June 27, 2011 (docket # 31). These insufficiently supported and duplicative, as well as largely premature, motions have been either vacated or denied. See, e.g., Orders, filed on May 3, 2011 (docket # 21), May 20, 2011 (docket # 23), June 24, 2011 (docket # 30), July 21, 2011 (docket # 35). By order filed on June 24, 2011, the undersigned ordered plaintiff not to continue to engage in seriatim filings "of inadequately supported and inapposite requests for preliminary injunctive relief, particularly while such a request is still pending...." Plaintiff was cautioned that should he continue to do so, the court would disregard such filings. Id. Notwithstanding, before the court had ruled on the September 8, 2011, motion plaintiff filed two more, one on September 26, 2011, and another on October 5, 2011, both seeking a court-ordered transfer. These motions will be disregarded. Plaintiff is also cautioned that the seriatim filings, particularly those made in disregard of court orders, may be construed as an abuse of process.

Plaintiff's Underlying Allegations

Plaintiff, who was at the E.O.P. (Enhanced Outpatient) level of care, alleges that, on November 16, 2009, defendant Dr. Tate wrote him up, cutting plaintiff off his chronic pain medication as a form of punishment for plaintiff's having asked for help and for renewal of his medication.*fn2 First Amended Complaint (FAC), p. 70. Plaintiff states that he (plaintiff) had been approved by both the medical review board and health care manager board. Id. Plaintiff claims that defendant Tate told him there was nothing wrong with him medically; plaintiff references x-rays and therapy received at Tehachapi Hospital and MRI reports at Salinas Valley State Prison (SVSP) and at Californian Correctional Institution (CCI) on November 30, 2009 and December 30, 2009. Id. Plaintiff alleges that defendant Tate was deliberately indifferent to his pain and the suffering caused by Tate's suddenly cutting him off a powerful narcotic and that such medication is intended to be decreased gradually and not cut off abruptly. Id. Plaintiff claims that a mental health patient is never to be cut off medication prescribed for physical needs without first obtaining permission from his health manager. Id. Plaintiff claims defendant Tate's action was taken with malice and with a deliberate intent to hurt plaintiff or to force him to kill himself. Id. As relief, plaintiff asks for money damages, including punitives. Id., at 3. Although he does not expressly seek prospective injunctive relief, the undersigned will liberally deem his incomplete request " and whatever relief this court..." as a request for whatever other relief the court deems appropriate and will find that his claims for relief encompass a claim for prospective injunctive relief. Id.

Motion for Preliminary Injunctive Relief

Legal Standard "The proper legal standard for preliminary injunctive relief requires a party to 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), quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008).

A Ninth Circuit panel has found that post-Winter, this circuit's sliding scale approach or "serious questions" test survives "when applied as part of the four-element Winter test." Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-1132 (9th Cir. 2011). "In other words, 'serious questions going to the merits,' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id., at 1132.

In cases brought by prisoners involving conditions of confinement, any preliminary injunction "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 the harm." 18 U.S.C. § 3626(a)(2).

Legal Standard for Eighth Amendment Claim

In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 2324 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4, 112 S. Ct. 995, 998 (1992).

A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F.2d 1332');">900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

In Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835, 114 S. Ct. at 1978. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37, 114 S. Ct. at 1979. Neither is it sufficient that a ...


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