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Rodney Brooks v. Harold Tate

February 15, 2013

RODNEY BROOKS,
PLAINTIFF,
v.
HAROLD TATE,
DEFENDANT.



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

PC FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION BE DENIED ECF No. 15 OBJECTIONS DUE WITHIN 14 DAYS

I. Background

Plaintiff Rodney Brooks ("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 action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed August 9, 2012, against Defendant Harold Tate for retaliation in violation of the First Amendment and deliberate indifference to a serious medical need in violation of the Eighth Amendment. On August 9, 2012, Plaintiff filed a motion for preliminary injunction. ECF No. 15. On November 20, 2012, Defendant Tate filed an opposition. ECF No. 28.*fn1 The matter is submitted pursuant to Local Rule 230(l).*fn2

II. Preliminary Injunction

Plaintiff requests that he be examined by a neurologist for acute, spasmodic muscular and nerve pain. Plaintiff contends that he is experiencing loss of muscle bulk, flashing lights in the 4 corner of Plaintiff's vision, constant muscle twitching, muscle weakness, cramps and spasms, loss of 5 balance, numbing and burning pain in Plaintiff's legs and arms, and excruciating abdominal pain. 6

A.Legal Standard

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the8 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 9 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).

"'A preliminary injunction is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor.'" Alliance for the Wilde Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)). Serious questions going to the merits and a hardship balance tipped sharply towards the plaintiff can support issuing an injunction, assuming the other two elements of Winter are also met. Id. at 1132.

For preliminary injunctive relief with respect to prison conditions, preliminary injunctive relief 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 that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief

18 U.S.C. 1326(a)(2).

B.Likelihood of Success on the Merits

Plaintiff contends that he is likely to succeed on the merits of his claim, contending that there are sufficient facts which demonstrate that Defendant Tate was aware of the extent of Plaintiff's pain and refused to provide Plaintiff with any effective pain relief medication or examination by a 2 neurology specialist. Pl.'s Mot. Prelim. Inj. 4:26-5:5. 3

Defendant contends that Plaintiff has received numerous exams and various treatments.

Based on the submitted documents, Plaintiff has received several types of ...


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