UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 29, 2011
MACARTHUR, REGISTERED NURSE;
CALDERON, REGISTERED NURSE; STEWART, REGISTERED NURSE; HUNT, MEDICAL DOCTOR; SEDEGHI, MEDICAL DOCTOR ALSO KNOWN AS SEDIGHI; SEELY, MEDICAL DOCTOR; CANLAS, MEDICAL DOCTOR; AND UNKNOWN DOCTORS AND CHIEF MEDICAL OFFICER (CMO) MAKING UP MEDICAL COMMITTEE, TO BE NAMED LATER, UPON DISCOVERY, DEFENDANTS.
The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION [Doc. No. 19]
Tracey Holt, a state prisoner proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against physicians and staff at the Richard J. Donovan Correctional Facility ("Donovan"), alleging deliberate indifference to his serious medical needs. Currently before the Court is Holt's motion for preliminary injunction. Having considered the parties' arguments, and for the reasons set forth below, the Court DENIES the motion.
Holt alleges that he suffers from chronic back and hip pain. Prior to his arrival at Donovan on September 3, 2008, Holt alleges that he was receiving physical therapy twice a week and Tramadol to control his pain. Once at Donovan, the medical staff apparently took Holt off Tramadol, even though Holt told them that he needed it for his medical condition. Instead, for the next three years, the medical staff prescribed him a series of different medications that apparently failed to effectively control his pain.*fn1 Holt alleges that every time he complained and asked for Tramadol, he was told that the prison does not dispense it, to forget about it, that the "psyche" medication was "all he would get," and that if he did not like it, "he would just have to live with his condition." According to Holt, he later found out that several prisoners at Donovan were receiving Tramadol as part of their pain management treatment. Holt also alleges that at one point, Dr. Hunt considered, but ultimately rejected, prescribing physical therapy.
On June 3, 2010, Holt had an MRI done. Holt saw a specialist, Dr. Alksne, on November 12, 2010. According to Dr. Alksne, a review of Holt's MRI showed that he had mild spondylolisthesis of L5-S1.*fn2 He noted that Holt's condition was apparently getting worse. He recommended that Holt receive another MRI and CAT scan for his back, and that he be provided with Vicodin for the pain. Holt alleges that he never received the Vicodin as recommended by the specialist.*fn3 Moreover, the updated MRI and CAT scans were not performed until February 2011. After the second MRI and CAT scans were performed, Holt was again seen by a specialist, Dr. Hardy, on May 31, 2011. According to Holt, Dr. Hardy informed him that his MRI showed numerous fractures in two of his vertebra bones. Dr. Hardy also noted that the MRI showed a degenerative disk disease with grade 1 spondylolisthesis. According to Dr. Hardy, Holt was a candidate for reconstructive surgery, although he could opt for a conservative treatment if he wished. At that time, Holt indicated that he wanted to think about it for a week or so. Holt saw Dr. Seely three days later. According to Holt, when he told Dr. Seely about his meeting with a specialist and indicated that he wanted to go ahead with the surgery, Dr. Seely denied the request. Rather, Dr. Seely prescribed Holt ten-days-worth of muscle relaxants. Finally, on July 18, 2011, after he already filed the present complaint, Holt was seen by Dr. Akbari. Dr. Akbari allegedly refused to follow the suggestions of the specialist and threatened to take Holt off his medications and off his job if Holt continued to complain and continued with his legal action.
II. Procedural history
Holt filed the present complaint on July 6, 2011, and filed a supplemental complaint on October 27, 2011. On November 4, 2011, Holt moved for a preliminary injunction, asking that the Court order that Holt be allowed to see a back specialist for a pain management plan and a plan for back surgery. [Doc. No. 19.] Holt further asks that the Court order the prison medical staff to follow the directions of the specialist, unless they can demonstrate that those directions are unreasonable. Moreover, Holt asks that he be provided with a back-specific foam mattress and physical therapy twice a week until the surgery is performed, at which time he asks that the Court order the prison medical staff to follow the post surgery treatment established by the specialist.
Defendants filed a response, and Holt replied. [Doc. Nos. 35, 37.] The Court took this matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1).
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief" and is "never awarded as of right." Winter v. Natural Res. Def. Council, 555 U.S. 7, 22, 24 (2008). Thus, "[a] plaintiff seeking a preliminary injunction must establish 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." Id. at 20. As long as all four Winter factors are addressed, an injunction may issue where there are "'serious questions going to the merits'" and "a balance of hardships that tips sharply towards the plaintiff." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
I. Likelihood of success on the merits
Pursuant to Winter, the moving party must demonstrate that he is "likely to succeed on the merits." 555 U.S. at 20. As long as the balance of hardships "tips sharply" in his favor, and other two Winter factors are satisfied, the moving party can meet his burden by showing that there are "serious questions going to the merits." Alliance for the Wild Rockies, 632 F.3d at 1135. In this case, Holt's complaint asserts a single cause of action-that the prison physicians and medical staff violated the Eighth Amendment by being deliberately indifferent to his serious medical needs. As discussed in more detail below, however, Holt has failed to show that he is "likely to succeed on the merits" or that there are "serious questions" raised as to this cause of action.
To establish an Eighth Amendment claim based on inadequate medical care, a prisoner needs to show: (1) a serious medical need and (2) deliberate indifference to that need by prison officials. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). "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.'" Id. (citation omitted). A prison official is deliberately indifferent if he knows that a prisoner "face[s] a substantial risk of serious harm" and "disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994).
In this case, even assuming Holt's back and hip pain constitutes a "serious medical need," at this time, he has failed to demonstrate even serious questions as to whether the prison officials' response to that pain was deliberately indifferent. Holt does not deny that the prison physicians and medical staff checked him out, ordered and performed MRI and CAT scans, and prescribed medications to control his pain. (See Pl. Motion for Prelim. Inj., at 8 [Doc. No. 19].) Rather, Holt takes issue with the kind of medication that he was prescribed. (Id.) He argues that because the "psyche" medication have failed to relieve his pain, he should have been prescribed Tramadol or some form of a narcotic (i.e., Vicodin). (Id. at 8-9.) At most, what Holt asserts is a difference in opinion as to how his back and hip pain should have been treated, which does not establish deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
To succeed on his claim, Holt must demonstrate that "the course of treatment the doctors chose was medically unacceptable under the circumstances," and that they "chose this course in conscious disregard of an excessive risk to plaintiff's health." See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). At this time, there is nothing to indicate that the course of treatment that the prison medical staff chose was "medically unacceptable" under the circumstances. See id. On the contrary, Holt's own recitation of the events demonstrates that the prison medical staff have been willing to accommodate Holt's multiple complaints that the drugs he was prescribed were not working, by changing his prescribed medication at least six times, if not more.*fn4 (See, e.g., Complaint ¶¶ 20, 22, 27, 28, 33, 35, 52, 62 [Doc. No. 1].)
To the extent Holt alleges the physicians and medical staff were deliberately indifferent in delaying his MRI and CAT scans, he has failed to show serious questions going to the merits because delay alone does not demonstrate deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
Finally, to the extent Defendants disagreed with the specialist's recommendation that Holt undergo a surgery, Holt failed to show deliberate indifference because he has failed to demonstrate that their action "was medically unacceptable under the circumstances," or that Defendants did so "in conscious disregard of an excessive risk to [Holt's] health." See Jackson, 90 F.3d at 332. Even the specialist indicated that Holt could choose a more conservative treatment and not undergo the surgery. (See Pl. Motion for Prelim. Inj., Ex. B-2). Accordingly, the decision to not provide Holt with a surgery was at most a difference in medical opinion, which alone is not sufficient to establish deliberate indifference. See Toguchi, 391 F.3d at 1058; Sanchez, 891 F.2d at 242.
For the foregoing reasons, Holt has failed to demonstrate that he is "likely to succeed on the merits," see Winter, 555 U.S. at 20, or that "serious questions" are raised as to the merits of his Eighth Amendment cause of action, see Alliance for Wild Rockies, 632 F.3d at 1135.
II. Other factors
Because Holt cannot satisfy the first Winter factor-likelihood of success on the merits-the Court need not consider the three remaining Winter factors. See Doe v. Reed, 586 F.3d 671, 681 n.14 (9th Cir. 2009).
Holt's motion for preliminary injunction is DENIED.
IT IS SO ORDERED.