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Maximo Berreondo v. Jonathan Akanno

July 18, 2012

MAXIMO BERREONDO,
PLAINTIFF,
v.
JONATHAN AKANNO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION BE DENIED (ECF No. 12) OBJECTIONS DUE WITHIN FOURTEEN DAYS

I. Background

Plaintiff Maximo Berreondo ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant Jonathan Akanno for deliberate indifference to a serious medical need in violation of the Eighth Amendment. On September 9, 2011, Plaintiff filed a motion requesting that the Court order Defendant to provide Plaintiff with a specific medical treatment. ECF No. 12. The Court construes the motion as one for preliminary injunction. On June 19, 2012, Defendant filed an opposition to the motion. ECF No. 42. The matter is submitted pursuant to Local Rule 230(l).

II. Preliminary Injunction

A.Legal Standard

"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." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). The purpose of preliminary injunctive relief is to preserve the status quo or to prevent irreparable injury pending the resolution of the underlying claim. Sierra On-line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

B.Lack Of Irreparable Harm

Plaintiff requests that Defendant follow Dr. Dev's, the wound specialist, recommendation for treatment of Plaintiff's wounds by using a KCI wound vacuum machine to treat Plaintiff's decubitus ulcers.*fn1 Pl.'s Mot., ECF No. 12. Plaintiff contends that the prison medical staff's use of a Prospera machine, a different machine with different dressing supplies, is below treatment standards and fails in the healing process. Id. Plaintiff contends that his wounds have become infected on two different occasions and required antibiotics. Id.

Defendant contends that one of Plaintiff's decubitus ulcers has healed with use of the Prospera machine, and that negative wound pressure therapy ("NWPT") was not ordered for the other. Def.'s Opp'n 7:13-15, ECF. No. 42; Ranson Decl. ¶ 38. Thus, Defendant contends that Plaintiff's motion is moot because no relief can be awarded. Def.'s Opp'n 7:13-15.

Plaintiff has failed to demonstrate irreparable harm. Based on the declaration submitted by Ms. Ranson, Plaintiff has received treatment for his decubitus ulcers, with one ulcer having been healed and the other ulcer not requiring such treatment. Plaintiff's harm appears to have been remedied.

C.Lack of Likelihood of Success on the Merits

The Prospera system used was effective in closing Plaintiff's right-trochanter pressure wound, and improving Plaintiff's left-trochanter wound to the point that the specialist did not order NPWT at this time. Def.'s Opp'n 9:2-8; Ranson Decl. ¶¶ 33, 38. There is no evidence that the KCI system was more effective in treatment. Def.'s Opp'n 9:2-8.

Plaintiff has failed to demonstrate likelihood of success on the merits. Based on the declaration submitted by Ms. Ranson, Plaintiff has received adequate medical treatment. Plaintiff's complaint that Defendant Akanno did not provide the medical care recommended by Dr. Dev, the wound specialist, amounts at most to a difference of opinion between medical professionals, which fails to demonstrate a claim for deliberate indifference to a serious ...


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