United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983. This
proceeding was referred to this court pursuant to 28 U.S.C.
§ 636(b)(1) and Local Rule 302. On July 24, 2019,
plaintiff filed a motion for preliminary injunction, and
pursuant to the court's order, the state provided a
response by special appearance (ECF No. 15). On October 3,
2019, plaintiff filed his reply (ECF No. 25). On October 31,
2019, plaintiff filed a motion for temporary restraining
order, and the state provided a response by special
appearance (ECF No. 32). As discussed below, the undersigned
recommends that plaintiff's motions be denied.
17, 2019, plaintiff filed a complaint alleging the following.
Plaintiff suffers from a myriad of serious medical conditions
including a disc herniation, syringomyelia, spondylosis, and
alleged shoulder separation that causes him extreme pain.
Plaintiff also has schizophrenia, and at times has suicidal
ideations due to pain. (ECF No. 1 at 7.) For four years,
plaintiff was prescribed morphine, 30 mg, twice a day for
pain management. On November 28, 2018, plaintiff was
transferred to the California Health Care Facility
(“CHCF”). Plaintiff alleges that defendant Dr.
Barber immediately began threatening to take plaintiff off
opioids. Subsequently, a psych tech falsely reported that
plaintiff was “cheeking” his medications. The
next day, Dr. Barber had plaintiff sign a narcotic contract
and began reducing plaintiff's morphine. One week later,
the morphine was completely stopped, and plaintiff was given
Tylenol that offered no pain relief. Plaintiff began having
extreme pain and withdrawals. Despite putting in repeated
sick call slips, he was denied care and defendant Nurse
Escobar told plaintiff to “drink water” for the
withdrawals. Plaintiff suffered withdrawal symptoms for two
weeks or more without any medical assistance. On March 6,
2019, plaintiff saw Dr. Barber, and informed her of his
suffering. Plaintiff told Dr. Barber that he had reported her
to her superiors and submitted a Medical Board complaint.
Plaintiff claims Dr. Barber became enraged, told plaintiff to
“suffer” and made him leave. Dr. Barber then
entered a false note claiming plaintiff was caught cheeking
medication two days in a row and that was why she stopped his
pain medication. Plaintiff alleges that Dr. Singh found Dr.
Barber violated policy by writing such a false note. (ECF No.
1 at 5, citing ECF No. 1 at 18-19.)
March 15, 2019, plaintiff saw an outside surgeon, who
requested a current MRI of disc herniation for surgery and
recommended a non-narcotic pain medication. On March 25,
2019, Dr. Barber denied the MRI and the pain medication, and
discontinued plaintiff's prescription orthopedic shoes
which plaintiff had for two years to help him walk with
3, 2019, plaintiff saw an outside orthopedist for
plaintiff's shoulder separation that has allegedly gone
unaddressed since December 2015. The orthopedist recommended
plaintiff receive a cortisone shot in his shoulder, which to
date plaintiff has not received.
further alleges that Chief Recarey, Chief Adams, and Chief
Singh insisted plaintiff still see Dr. Barber. On July 10,
2019, plaintiff saw CHCF Dr. Monsour by TV appointment. Dr.
Monsour would not order an MRI or the orthopedic shoes
because Dr. Barber allegedly said plaintiff does not need
surgery or shoes.
second claim, plaintiff contends Dr. Barber retaliated
against plaintiff because plaintiff sought redress via
medical grievances and complaints by Dr. Barber telling
plaintiff to “suffer, ” and then discontinued
plaintiff's prescription orthopedic shoes, and denied
plaintiff an MRI and surgery.
seeks injunctive relief, declaratory relief, and money
damages. Specifically, plaintiff seeks an order requiring an
MRI so that plaintiff can be scheduled for surgery to stop
his daily pain. (ECF No. 1 at 12.)
Plaintiff's Motion for Preliminary Injunction
verified motion, plaintiff states he was previously
prescribed 30 mg of morphine for pain twice a day for four
years, and orthopedic shoes to help plaintiff walk due to his
serious spinal problems. Plaintiff alleges that false reports
of cheeking were lodged to cancel plaintiff's opioid
prescription, and his morphine prescription was subsequently
reduced to zero with no medical assistance during his period
of withdrawal. Then, he was prescribed Tylenol, which
plaintiff claims does not help at all.
March 15, 2019, plaintiff saw an outside neurosurgeon, Dr.
Rahimifar, who requested a current MRI on plaintiff's
disc herniation to schedule plaintiff's surgery, and
requested plaintiff receive a non-opioid pain medication
Ultram. (ECF No. 6 at 3, 22.) On March 25, 2019, Dr. Barber
denied the MRI request, the non-opioid pain medication, and
discontinued plaintiff's two-year permanent orthopedic
shoe prescription. (ECF No. 6 at 4, 24.) As of the date of
his motion, plaintiff had not received the cortisone shot in
his shoulder requested on May 3, 2019. (ECF No. 6 at 4.) On
July 10, 2019, Dr. Mansour denied the MRI and orthopedic
shoes because Dr. Barber states plaintiff does not need
surgery or shoes. (Id.)
alleges that for over five months, he has been allowed to
endure the unnecessary and wanton infliction of pain, and
suffers excruciating pain and agony every day, is unable to
sleep, and at times contemplates suicide. (ECF No. 6 at 5.)
He states he has trouble walking because it shoots pain up
his spine, and he has fallen twice. Despite his grievances,
plaintiff has been unable to obtain relief, and complains
that the recommendations of the outside specialists are not
being followed. (ECF No. 6 at 6, 22, 26.) Plaintiff
specifically seeks the following: relief from his daily pain;
an MRI of his disc herniation as requested by the
neurosurgeon, cortisone shot in his shoulder as requested by
the outside specialist, and orthopedic shoes as previously
and permanently prescribed.
Plaintiff's Motion for Temporary ...