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Flowers v. Davey

United States District Court, E.D. California

July 18, 2017

RUPERT FLOWERS, Plaintiff,
v.
DAVE DAVEY, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (ECF No. 6) FOURTEEN (14) DAY DEADLINE

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE

         FINDINGS AND RECOMMENDATION

         I. Background

         Plaintiff Rupert Flowers (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 15, 2016, while incarcerated at Corcoran State Prison.

         On September 26, 2016, Plaintiff filed a motion for preliminary injunction and temporary restraining order. (ECF No. 6.)

         On December 6, 2016, Plaintiff's first amended complaint was filed. (ECF Nos. 10.)

         On April 28, Plaintiff filed a Notice of Change of Address, which indicated that he had been moved to the California Substance Abuse Treatment Facility. (ECF No. 16.)

          On July 14, 2017, the Court screened Plaintiff's first amended complaint and dismissed it with leave to amend within thirty days. (ECF No. 7.) Plaintiff's motion for a preliminary injunction and temporary restraining order is currently before the Court.

          II. Motion for Preliminary Injunction

         Plaintiff seeks a preliminary injunction and temporary restraining order “to have defendants abstain from delaying, denying or interfering with Plaintiff's medical care that has been prescribed by a physician and to have Plaintiff receive septoplasty and endoscopic sinus surgery as have already been recommended and requested by several previous doctors.” (ECF No. 6.) In support, Plaintiff provides a brief summary of the facts in support of his motion.

         Plaintiff asserts that he was assaulted by prison staff on December 3, 2014, which resulted in a fractured right mandible (jaw). He was sent to San Joaquin Community Hospital and, due to conflicting opinions, his injury went untreated. Having no relief from his jaw pain, additional x-rays were completed on December 9, 2014, and indicated a right mandibular fracture. Plaintiff was sent to San Joaquin Hospital a second time, but the injury went untreated due to conflicting opinions. The hospital surgeon, Dr. Michael Freeman, did warn, however, that complications and infections could arise in the future.

         Beginning in February 2015, Plaintiff began experiencing complications such as nasal congestion, loss of smell, loss of taste, labored breathing and headaches. On August 3, 2015, Plaintiff underwent a CT scan, which showed infection.

         On October 19, 2015, Plaintiff was examined by an ear, nose, and throat specialist, Dr. Stillwater. Dr. Stillwater confirmed that Plaintiff's medical condition could be related to the trauma sustained in December 2014.

         On December 7, 2015, Plaintiff underwent a second CT scan, which showed pansinus disease and near complete ...


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