The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTIONS FOR EMERGENCY TEMPORARY INJUNCTIVE RELIEF (ECF Nos. 2, 6)
Plaintiff Roberto Herrera is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed November 8, 2012 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent to Magistrate, ECF No. 5.)
The Court screened Plaintiff's Complaint and dismissed it on November 30, 2012 for failure to state a claim, but gave Plaintiff leave to file an amended complaint. (Order Dismiss. Compl., ECF No. 8.)
Pending before the Court are two separate, but essentially duplicative, motions filed by Plaintiff on November 8, 2012 and November 26, 2012 seeking emergency temporary injunctive relief. (Mot.'s for Temp. Inj. Relief, ECF Nos. 2, 6). Plaintiff wants the Court to order California Department of Corrections and Rehabilitation ("CDCR") Chief Zamora to stop, at all state prisons, carrying out the pain management committee's ("Committee") policy ("Policy") of prohibiting primary care providers from providing effective treatment of inmates with chronic pain. (Mot. for Temp. Inj. Relief, ECF No. 2 at 1:8-27; Mot. for Temp. Inj. Relief, ECF No. 6 at 1:12-16.) He wants an order that all chronic pain inmates be provided effective treatment. (Mot. for Temp. Inj. Relief, ECF No. 2 at 1:9-2:25.)
Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of right." Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008). "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." Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), quoting Winter, 555 U.S. at 20. An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 U.S. at 22.
Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act ("PLRA"), which requires that the Court find the "relief [sought] is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right."
Injunctive relief should be used "sparingly, and only . . . in clear and plain case[s]." Rizzo v. Goode, 423 U.S. 362, 378 (1976).
Plaintiff contends the Committee Policy amounts to medical indifference in violation of the Eighth Amendment because under the Policy the Committee, not primary care providers, decides who will or will not receive further effective chronic pain treatment; the inmates have no access to or participation in the Committee process and Committee decisions;*fn1 and the Committee acts negligently because it does not base decisions on test results.
He includes in support of his motions an October 18, 2012 Notification of Pain Management Committee Recommendation to his primary care provider that "no opiates are medically indicated." (Mot. for Inj. Relief, ECF No. 2 at 4); and January 30, 2012 consultative findings by an orthopaedic surgeon of right heel tenderness and a recommendation to remove symptomatic screws in the heel. (Mot. for Inj. Relief, ECF No. 2 at 5.)