Wilkins v. Barber

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Plaintiff's Complaint

         On July 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.)

         On 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 syringomyelia, etc.

         On May 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.

         Plaintiff 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.

         In his 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.

         Plaintiff 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.)

         II. Plaintiff's Motion for Preliminary Injunction

         In his 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.

         On 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.)

         Plaintiff 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.

         III. Plaintiff's Motion for Temporary ...