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Spencer Berry v. Dorothy Swingle

August 29, 2012

SPENCER BERRY, PLAINTIFF,
v.
DOROTHY SWINGLE, ET AL., DEFENDANTS.



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

FINDINGS & RECOMMENDATIONS

Plaintiff is state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's May 25, 2012 motion for injunctive relief. For the following reasons, the undersigned recommends that this motion be denied.

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., 555 U.S. 7, 20 (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, 1131-32 (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).

Plaintiff's Claims

In the pending motion, plaintiff requests that the court prohibit defendants from subjecting him to further tuberculosis testing. In support of this request, plaintiff alleges that in 1994, while housed at the California Youth Authority ("CYA") Reception Center, he tested positive for tuberculosis. Plaintiff alleges that he was given INH medication to treat the tuberculosis for one year. Plaintiff alleges that he was advised by CYA medical staff that he would always test positive for tuberculosis.

Plaintiff alleges that in 2000, he began serving his first term in the California Department of Corrections and Rehabilitation ("CDCR") at the Deuel Vocational Institution ("DVI"). Plaintiff told DVI staff that he had undergone treatment for tuberculosis while housed in the CYA. Plaintiff assumed that he was then classified as "Code 32," which meant that he tested positive for tuberculosis but that the disease was not active. According to plaintiff, being classified as "Code 32" also meant that he was not required to submit to further tuberculosis testing.

Plaintiff alleges that in 2009, he began serving his second prison term. In August 2010, he arrived at High Desert State Prison ("HDSP"). Plaintiff alleges that prison officials at HDSP told him that he had to take a tuberculosis test. Plaintiff told prison officials that he was Code 32 and not obligated to submit to a test. Plaintiff alleges that defendant Daniels threatened to hold him down and give him the test. Plaintiff submitted to the test under threat of physical harm. Plaintiff was later informed that CDCR had never requested the Code 32 paperwork from CYA. Plaintiff alleges that he is being involuntarily subjected to unnecessary tuberculosis tests in violation of his constitutional rights.

Attached to plaintiff's complaint are copies of administrative grievances responding to plaintiff's complaints of involuntary tuberculosis testing. The second level response states that an attempt was made to obtain plaintiff's CYA records from 11 years ago, but they are unavailable and it would be a lengthy process to get them.

In the pending motion, plaintiff alleges that on April 20, 2012, prison officials again threatened to force him to take a tuberculosis test even though he showed them documents demonstrating that he is exempt from testing. Plaintiff alleges that he was physically held down and the tuberculosis test was administered. Plaintiff alleges that on April 23, 2012, his test was read as negative for tuberculosis, which contradicts all of his previous tests.

Defendants' Opposition

On August 3, 2012, defendants filed an opposition to plaintiff's motion. Defendants argue that plaintiff's motion is based upon his false belief that he contracted tuberculosis in 1994, and thus is exempt from CDCR's tuberculosis testing program. In support of this argument, defendants provided the declaration of defendant D. Swingle, the Chief Medical Officer ("CMO") at HDSP. (Dkt. No. 31-1.) Although the declaration does not state that ...


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