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Andrew Ramirez v. D. Swingle


July 25, 2012


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


I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motions for injunctive relief filed October 5, 2011, and January 20, 2012. On February 24, 2012, defendants filed an opposition to these pending motions. On June 22, 2012, defendants were ordered to file further briefing. On July 20, 2012 defendants filed a summary judgment motion addressing the issues requiring further briefing.

For the following reasons, the undersigned recommends that plaintiff's motions for injunctive relief be denied.

II. Legal Standard for Injunctive Relief

"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., 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).

III. Analysis

This action is proceeding on the original complaint filed January 5, 2011, as to defendants Physician's Assistant Medina and Chief Medical Officer Swingle. Plaintiff alleges that defendants mismanaged his insulin, refused to provide physical therapy and improperly lowered the dosage of his pain medication.

In both pending motions for injunctive relief, plaintiff requests that defendants be ordered to provide him with morphine or else to supplement or replace his discontinued tramadol and gabapentin. Plaintiff also requests that defendants be ordered to provide him with adequate doses of insulin. Defendants were ordered to respond to those requests.

Legal Standard for Eighth Amendment Claim

Generally, deliberate indifference to a serious medical need presents a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). According to Farmer v. Brennan, 511 U.S. 825, 847 (1994), "deliberate indifference" to a serious medical need exists "if [the prison official] knows that [the] inmate [ ] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." The deliberate indifference standard "is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because 'the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Specifically, a determination of "deliberate indifference" involves two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's responses to those needs. McGuckin, 974 F.2d at 1059.

First, 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. (citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a "serious" need for medical attention include 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. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).

Second, the nature of a defendant's responses must be such that the defendant purposefully ignores or fails to respond to a prisoner's pain or possible medical need in order for "deliberate indifference" to be established. McGuckin, 974 F.2d at 1060. Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison physicians provide medical care. Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In order for deliberate indifference to be established, there must first be a purposeful act or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. "A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." Id. Second, there must be a resulting harm from the defendant's activities. Id. The needless suffering of pain may be sufficient to demonstrate further harm. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).

Mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). However, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

Defendants' Evidence Regarding Pain Medication

Attached to defendants' summary judgment motion is a 32- page declaration by defendant Swingle discussing, in part, the issues of plaintiff's pain medication and insulin dosage. (Dkt. No. 53-3.) The undersigned has reviewed this declaration.

Defendants Swingle states that for several years, plaintiff has had problems with ongoing pain caused by an incisional ventral hernia. Plaintiff has been prescribed a variety of different medications for this condition, including tramadol, gabapentin and morphine.

Plaintiff began receiving gabapentin and tramadol for pain upon his arrival at High Desert State Prison ("HDSP"), where defendants are located, in March 2009. In May 2010, plaintiff was also prescribed morphine for pain.

In November 2010, the tramadol was discontinued because it was not mitigating plaintiff's pain. In January 2011, plaintiff was tapered off the gabapentin because it was not mitigating his pain. In addition, it was determined that plaintiff did not have the type of pain that gabapentin was used to treat.

In February 2011, plaintiff's morphine was discontinued because it caused him significant constipation. In addition, because morphine can cause slow, shallow, irregular breathing, it must be used with caution and not long-term with patients, like plaintiff, who have obstructive sleep apnea. In February 2011, plaintiff was prescribed acetaminophen and naproxen for pain.

In July 2011, plaintiff was prescribed Tylenol # 3 and acetaminophen for pain. Most recently, on June 7, 2012, Dr. Mayes saw plaintiff. Dr. Mayes noted that plaintiff was awaiting a further surgical evaluation for his ventral hernias at the University of California-Davis Medical Center. Dr. Mayes noted that plaintiff had two hernias which were unchanged in size from the previous visit, his associated pain was controlled with Tylenol # 3, and that he needed a refill for his medications. Dr. Mayes noted that plaintiff ambulated using a wheelchair because he felt there was a risk his hernias would rupture. Dr. Mayes re-sent his request for a surgical evaluation and renewed the order for Tylenol # 3.

On June 13, 2012, plaintiff was seen by telemedicine by Dr. Rembetski for surgical evaluation. Plaintiff reported occasional pain, that he tried to be active, but that even wandering around his cell caused discomfort. An examination of telemedicine camera by a nurse showed a large incisional hernia with a diffuse bulge at plaintiff's midline scar. Dr. Rembetski found that plaintiff seemed to be only modestly inconvenienced by the hernia, that it had been fixed multiple times, and that there was a significant risk of recurrence. Dr. Rembetski told plaintiff that an abdominal binder to hold the hernia in and analgesics for pain would be the appropriate treatment. Dr. Rembetski's opinion was that this was adequate treatment because his medication controlled pain and his activity level was low. Dr. Rembetski noted that if plaintiff developed obstructive symptoms, he would need exploration and repair with mesh, but there would be a significant chance of recurrence.

On June 20, 2012, Dr. Mayes saw plaintiff for a follow-up, noted Dr. Rembetski's finding that surgery was not recommended at that time, and recommended that plaintiff should be managed with an abdominal binder and analgesics. Dr. Mayes ordered an extra large abdominal binder and continuation of Tylenol # 3.

Finally, in her declaration defendant Swingle states that at various times, plaintiff has exhibited drug seeking behavior as well as behaved as though he were sharing his pain medication with his cellmate.

Defendants' Evidence Regarding Diabetes

Regarding plaintiff's diabetes, defendant Swingle's declaration indicates that in the past, plaintiff was prescribed Lantus insulin, sliding scale regular insulin, glipizide and metformin. Plaintiff also received regular blood glucose checks.

In April 2011, plaintiff's blood checks showed blood glucose levels ranging from 75 mg. to 128 mg. These levels do not indicate low blood glucose (hypoglycemia), which is below 60 mg. Plaintiff was informed that based on these levels, he did not need insulin. Plaintiff's medical records indicate that in July 2011, plaintiff was no longer taking insulin or any other diabetes treatment. At that time, plaintiff had a hemoglobin A1C test to assess his glucose level. The test results were 5.5%, indicating excellent control, so that no diabetes medications were needed.

On December 7, 2011, plaintiff's hemoglobin A1C was 5.9%, which indicated continued excellent blood glucose control and no need for diabetes medication. On March 1, 2012, plaintiff's hemoglobin A1C was 5.8%, which again indicated excellent blood glucose control and no need for diabetes medication.


Defendants' evidence indicates that, at this time, plaintiff has no medical need for any diabetes medication. Defendants' evidence also indicates that, at this time, plaintiff's pain associated with his hernias has been addressed. While plaintiff apparently continues to suffer from some discomfort, his pain is managed with Tylenol # 3. Defendants' evidence indicates that plaintiff's sleep apnea precludes his long term use of morphine. Defendants' evidence also indicates that gabapentin and tramadol were not as effective as Tylenol # 3 in treating plaintiff's pain. Defendants' evidence indicates that, at this time, they are not acting with deliberate indifference to plaintiff's diabetes and pain associated with his hernias.

Based on defendants' evidence, the undesigned finds that plaintiff has not demonstrated that he is likely to suffer irreparable harm in the absence of injunctive relief. The balance of equities do not tip in plaintiff's favor and an injunction is not in the public interest. For these reasons, plaintiff's motions for injunctive relief requesting that defendants be ordered to properly manage his insulin and to reinstate his morphine or gabapentin and tramadol should be denied.

In the pending motions, plaintiff also requests that he receive breathing treatments and a permanent walker. This action is not proceeding on claims regarding breathing treatments and access to a walker. The Supreme Court has held that a preliminary injunction is appropriate to grant relief of the "same character as that which may be granted finally." De Beers Consol. Mines v. U.S., 325 U.S. 212, 220 (1945). A court may not issue an injunction in "a matter lying wholly outside the issues in the suit." Id. A court need not consider claims that were not raised in the complaint. McMichael v. Napa County, 709 F.2d 1268, 1273 n. 4 (9th Cir. 1983). For these reasons, the undersigned does not consider plaintiff's claims for injunctive relief regarding breathing treatment and access to a walker.

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a district judge to this action; and

IT IS HEREBY RECOMMENDED that plaintiff's motions for injunctive relief (Dkt. Nos. 28 and 35) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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