-VBK Angie Marie Briones v. N. Grannis et al, No. 2:2009cv08074 - Document 51 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND ORDER DENYING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION WITHOUT PREJUDICE by Judge Virginia A. Phillips re: MOTION for Order for MOTION FOR ORDER TO CAUSE FOR AN INJUNCTION 20 . Plaintiffs Motion is therefore Denied without prejudice. (rp)
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-VBK Angie Marie Briones v. N. Grannis et al Doc. 51 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ANGIE MARIE BRIONES, 12 Plaintiff, 13 14 ) ) ) ) ) ) ) ) ) ) v. N. GRANNIS, et al., 15 Defendant. No. CV 09-08074-VAP (VBK) MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION WITHOUT PREJUDICE 16 17 Pro se prisoner Angie Marie Briones (hereinafter referred to as 18 “Plaintiff”) filed a Civil Rights Complaint pursuant to 42 U.S.C. 19 §1983 in the United States District Court for the Central District of 20 California on November 14, 2009, pursuant to the Court’s Order re 21 Leave to File Action Without Prepayment of Full Filing Fee. 22 On December 18, 2009, the Court issued an Order granting 23 Plaintiff’s request to proceed in forma pauperis and issued an Order 24 directing 25 Defendants Dr. Wu, Dr. Finander, Nurse Sisson and Nurse Frances. (See 26 Docket Nos. 10, 11, 13.)1 service of process by the United States Marshals on 27 1 28 The United States Marshals have not yet served Defendants with the Summons and Complaint. In a Minute Order dated September 1,2010, the Court has ordered the United States Marshals to promptly serve Dockets.Justia.com 1 On January 22, 2010, Plaintiff filed a document entitled “Motion 2 for Order to [Show] Cause For An Injunction” (“Motion”)(see Docket No. 3 20); “Declaration of Angie Briones” (“Plaintiff’s Decl.”); and a 4 “Supplemental 5 Plaintiff is a transsexual2 (male to female) and contends that she has 6 been denied adequate pain management and estrogen hormone therapy. 7 Plaintiff seeks a temporary restraining order and permanent injunction 8 to insure that she receives constitutionally mandated medical care to 9 treat her transsexualism. Amended Complaint” (“First Amended Complaint”). 10 Plaintiff alleges that she has been denied estrogen hormone 11 therapy and pain medication treatment, and that Defendants have acted 12 with deliberate indifference to Plaintiff’s serious medical needs, 13 transgenderism and lower chronic back pain. (First Amended Complaint 14 at pp. 2-5.) 15 Plaintiff alleges prior to her arrival at California State 16 Prison-Lancaster (“CSP-LAC”) in June of 2009 she had been under 17 treatment and receiving estrogen hormone therapy and pain management 18 therapy for approximately nine years as noted in her California 19 Department of Corrections and Rehabilitation (“CDCR”) prison medical 20 file. (Motion at 10-11; 21 Letter to Dr. Lee ,a prison physician,dated September 16, 2006 from See First Amended Complaint, attached pages, 22 25 Defendants with a copy of the “First Amended Complaint” and “Motion For Order to [Show] Cause for an Injunction” filed on January 22, 2010, and Plaintiff’s “Motion for A Temporary Restraining Order and Preliminary Injunction” and “Sworn Declaration of Angie Marie Briones in Support of T.R.O.” filed on August 17, 2010. 26 2 23 24 27 28 A transsexual is “one who has ‘[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex’ and who typically seeks medical treatment, including hormone therapy and surgery to bring about a permanent sex change.” Farmer v. Brennan, 511 U.S. 825, 829 (1994)(citations omitted). 2 1 Dr. Pamela Prescott, an outside endocrinologist, who performed a 2 consultation with Plaintiff regarding hormone replacement therapy 3 while Plaintiff was imprisoned at Salinas Valley State Prison.) 4 her arrival at CSP-LAC, Plaintiff alleges Defendants Dr. Wu, Dr. 5 Finander, 6 estrogen hormone therapy and pain management treatment. (First Amended 7 Complaint at 2-5; Motion at 10-11.) 8 Defendants 9 transgender Nurse have and Frances and consciously pain Nurse and Sisson have denied Upon Plaintiff Plaintiff alleges that these arrogantly specialists defied prescribing orders medications by for 10 Plaintiff. (Motion at 4, 12-14; First Amended Complaint, attached 11 pages; 12 Defendants employed at CSP-LAC are not trained nor qualified to 13 assess, 14 transsexualism, a.k.a. gender dysphoria). 15 attached pages.) Plaintiff’s diagnose Decl.) nor treat Plaintiff Gender alleges Identity that the Disorder medical (a.k.a. (First Amended Complaint, 16 Plaintiff alleges she is experiencing adverse effects resulting 17 from Defendants’ arbitrary peremptory halting of her estrogen hormone 18 therapy which includes but is not limited to significant infliction of 19 physical, emotional and mental pain due to reduction of fat tissue 20 around her breasts, cheeks, hips and buttocks, causing bruising, 21 constriction of the skin and severe soreness. 22 hormone treatment has also reversed many of the female characteristics 23 previously attained through years of estrogen hormone treatment and 24 has resulted in a chemical imbalance 25 anxiety attacks, jitteriness, stress, distress, frustration, vomiting, 26 erections, grave depression, suicidal thoughts, fainting spells, cold 27 and hot flashes and other serious harm. (See First Amended Complaint, 28 attached pages.) 3 The lack of estrogen causing great irritability, 1 Plaintiff alleges on July 8, 2009, she was seen by Defendant Dr. 2 Wu, who canceled Plaintiff’s pain medications of Gabapentin and 3 Robaxin and only ordered Motrin for her lower chronic back pain. 4 (Motion at 11; First Amended Complaint, attached pages.) 5 stated that he saw no medical indication for use of Gabapentin and 6 Robaxin for Plaintiff’s back pain. 7 examination on Plaintiff’s lower back; however, he did not touch 8 Plaintiff’s lower back, nor did he perform range of motion tests, 9 order x-rays or an MRI. Dr. Wu Dr. Wu did a full view visual Dr. Wu said, “Your back looks fine.” Dr. Wu 10 also refused Plaintiff’s request to continue hormone therapy, stating, 11 “Only a transgender specialist can order hormones.” 12 did not refer Plaintiff to a transgender specialist. (Motion at 10-11; 13 First Amended Complaint, attached pages.) 14 15 16 17 Dr. Wu however, On July 9, 2009, Plaintiff requested in writing that her hormone therapy and pain management therapy be restarted. On July 27, 2009, Plaintiff submitted another request to be seen urgently for the same issues. (Id.) 18 On July 29, 2009, Plaintiff saw Defendant Nurse Esther Frances, 19 who asked Plaintiff whether she was seeing a transgender specialist. 20 (Motion at 12; First Amended Complaint, attached pages.) 21 inquired about a transgender specialist referral made by Dr. Wu; 22 however, Defendant Nurse Frances said no referral was made by Dr. Wu 23 in her file but she said she would write a referral to the transgender 24 specialist. 25 however, 26 medications, stating she would not interfere with Dr. Wu’s order of 27 Motrin. 28 physicians and pain management specialists had prescribed Gabapentin Plaintiff Plaintiff told Defendant Nurse Frances of his pain; Nurse Frances did not order Plaintiff’s previous pain Plaintiff informed Defendant Nurse Frances that other staff 4 1 medication for Plaintiff’s chronic lower back pain. (Id.) 2 On July 31, 2009, Defendant Chief Medical Officer Dr. Finander 3 canceled the transgender specialist referral made by Defendant Nurse 4 Frances with no explanation. 5 Care Services form requesting pain medication and hormone therapy. 6 (Motion at 12.) Plaintiff filled out a CDCR 7362 Health 7 In August of 2009, Plaintiff was feeling depressed and suicidal. 8 Plaintiff alleges that the lack of estrogen hormone therapy and 9 hormone withdrawal side effects have caused her severe pain, both 10 emotionally, mentally and physically and have greatly affected her 11 health. (See First Amended Complaint, attached pages.) 12 On August 28, 2009, Plaintiff was seen by Defendant Dr. Wu and 13 she advised him of the side effects she was experiencing due to 14 estrogen withdrawals. 15 hormone therapy and he would not and could not prescribe hormones. 16 Only the transgender specialist can prescribe hormones. (See Motion at 17 12.) 18 Dr. Wu said there was no medical need for On September 15 and September 16, 2009, Plaintiff filed CDC 602 19 grievance 20 medications. 21 pain. (See First Amended Complaint, attached pages; Motion at 13.) forms regarding denial of hormone therapy and pain Plaintiff also saw Nurse Frances and advised her of his 22 On September 22, 2009, Plaintiff wrote a letter to Defendant 23 Warden Haws and to the Receiver of all medical care throughout CDCR 24 about 25 withdrawals. 26 grievance form regarding the denial of hormone therapy and pain 27 medication. 28 had been diagnosed by a pain management specialist with neuropathic her severe pain and side effects from estrogen hormone On October 5, 2009, Plaintiff submitted another CDC 602 Plaintiff explained to Defendant Nurse Frances that she 5 1 radicular low back pain and required specific pain medications. (First 2 Amended Complaint, attached Exhibits; Motion at 13.) 3 On November 2, 2009, Plaintiff saw Dr. Stepke regarding her 4 complaints of back pain and the side effects from the withdrawal of 5 hormone therapy. 6 hormones when she first arrived at CSP-LAC, because it is a CDCR 7 written policy that transgenders upon arrival to a prison remain on 8 hormones if they had been previously prescribed by the transfer 9 prison. Dr. Stepke told Plaintiff she should have been on Dr. Stepke also ordered Robaxin and Naprosyn for Plaintiff’s 10 muscle spasms and lower back pain at this visit. (See First Amended 11 Complaint, attached pages.) 12 On November 3, 2009, Plaintiff was seen by Dr. Bazile, a 13 transgender specialist, who consulted with and counseled Plaintiff. 14 (Motion at 14; First Amended Complaint, attached pages.) 15 recommended that Plaintiff resume hormone replacement therapy and 16 should start on an Estradiol patch of 0.4 mgs topically twice weekly 17 (estrogen), and Spironolactone 100 mgs twice a day (hypertension 18 medication). (See First Amended Complaint, attached pages.) Dr. Bazile 19 On November 12, 2009, Plaintiff was seen by Defendant Dr. Wu. 20 Plaintiff told him that she had seen the transgender specialist and he 21 had restarted her hormones. 22 any orders and that he reviewed a CDC 602 grievance that Plaintiff had 23 written on him and Defendant Dr. Finander. Defendant Dr. Wu started to 24 laugh and thereafter called Defendant Dr. Finander and was talking to 25 her about Plaintiff’s 602 grievance. (Plaintiff’s Decl.; First Amended 26 Complaint, attached pages.) 27 28 Defendant Dr. Wu said that he did not see On November 13, 2009, Plaintiff received her first dosage of Spironolactone and was told she needed to sign a consent form in 6 1 order to start hormone therapy. 2 that night and thereafter signed another consent form. (Id.) Plaintiff signed the consent form 3 On November 25, 2009, Plaintiff was seen by a nurse to take 4 Plaintiff’s blood pressure. It was elevated to 146 over 86. Plaintiff 5 explained that she had just finished playing volleyball, which is an 6 exercise she does for her back pain, in order to build muscle in her 7 lower back. (First Amended Complaint, attached pages; Motion at 14.) 8 Defendant Dr. Finander responded to Plaintiff’s CDC 602 grievance 9 and denied hormones based on one blood pressure reading of 146 over 86 10 and refused to allow Plaintiff to start her hormone therapy. 11 Finander also prescribed aspirin to treat Plaintiff’s lower back pain 12 for three days only. 13 medication does not work the same way as estrogen. 14 when she came to CSP-LAC her breast size was a “C” cup and now it is 15 below an “A” cup. (Motion at 15.) 16 pain both physically and mentally. Dr. Plaintiff alleges that the Spironlactone Plaintiff alleges Plaintiff alleges she is in severe Id. 17 Plaintiff alleges she has filed CDC 602 grievances and has 18 received a second level response; however, she has not received a 19 response at the Director’s Level. Id. 20 21 22 23 24 PLAINTIFF’S REQUEST FOR INJUNCTIVE RELIEF Plaintiff seeks a preliminary injunction to continue Plaintiff on the following hormone therapy: “(1) Del Estrogen injection 40 ml 2x a month; 25 (2) Premarin 10 mg 1x a day; 26 (3) Chrono for bra; 27 (4) to also continue and renew her pain management therapy and 28 chrono for her last CDCR order. 7 1 1. Gabapentin 1200 mg 3x a day; 2 2. Tramadol 50 mg 3x a day; 3 3. Chrono for pressure mattress.” (Motion at 17; First 4 Amended Complaint at 6.) 5 6 PRELIMINARY INJUNCTION STANDARD 7 “A plaintiff seeking a preliminary injunction must establish that 8 he is likely to succeed on the merits, that he is likely to suffer 9 irreparable harm in the absence of preliminary relief, that the 10 balance of equity tips in his favor, and that an injunction is in the 11 public interest.” 12 S.Ct. 365, 374 (2008); see also Nelson v. National Aeronautics and 13 Space 14 2009)(recognizing that Winter modified the preliminary injunction 15 standard). 16 commanding a positive act, we must subject such relief to heightened 17 scrutiny and cannot grant the injunction “unless the facts and law 18 clearly favor the moving party.” 19 1399, 1403 (9th Cir. 1993). 20 the prison context, must be viewed with great caution as judicial 21 restraint is especially called for when dealing with “the complex and 22 intractable problems of prison administration.” 23 F.3d 518, 519 (8th Cir. 1995)(citations omitted); see also Walker v. 24 Woodford, 454 F.Supp.2d 1007, 1030 (S.D. Cal. 2006). Winter v. Natural Res. Def. Council, Inc., 129 Administration, 568 F.3d 1028, 1030 n.5 (9th Cir. When a preliminary injunction alters the status quo by Dahl v. HEM Pharm. Corp., 7 F.3d A request for preliminary injunction, in Goff v. Harper, 60 25 However, in order for this Court to consider Plaintiff’s request 26 for a preliminary injunction, it must first consider whether the Court 27 has personal jurisdiction over the parties. 28 issue an injunction if it has personal jurisdiction over the parties 8 “A federal court may 1 and subject matter jurisdiction over the claim; it may not attempt to 2 determine the rights of persons not before the Court.” 3 United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985). 4 Plaintiff is seeking injunctive relief against Defendants who have not 5 yet been served with the Summons and First Amended Complaint. Zepeda v. 6 7 8 9 DISCUSSION Plaintiff alleges that Defendants have violated her Eighth Amendment right to be free from cruel and unusual punishment by their 10 deliberate indifference to her serious medical needs. 11 transsexual and contends that Defendants’ denial of hormone therapy 12 and pain management constitutes deliberate indifference to her serious 13 medical needs. 14 inmate’s 15 punishment in violation of the Eighth Amendment. 16 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976); Johnson v. Meltzer, 134 17 F.3d 1393, 1398 (9th Cir.), cert. denied, 525 U.S. 840 (1998). 18 state a deliberate indifference claim, a prisoner plaintiff must 19 allege both that the deprivation of medical care in question was 20 objectively serious, and that the defendant official acted with a 21 subjectively culpable state of mind. 22 297, 111 S. Ct. 2321 (1991). 23 indifference is satisfied when it is established that “the official 24 knew of and disregarded a substantial risk of serious harm to [the 25 prisoner’s] health or safety.” 26 Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970 (1994). 27 28 The A prison official’s deliberate indifference to an serious courts Plaintiff is a medical have needs constitutes cruel and unusual Estelle v. Gamble, To Wilson v. Seiter, 501 U.S. 294, The required showing of deliberate Johnson, 134 F.3d at 1398 (citing recognized that deliberate indifference to serious medical needs may be manifested in two ways: “It may appear 9 1 when prison officials deny, delay or intentionally interfere with 2 medical treatment, or it may be shown by the way in which prison 3 officials provide medical care.” 4 F.2d 390, 394 (9th Cir. 1998)(citing Estelle v. Gamble, 429 U.S. at 5 105). 6 medical 7 inadvertence, or differences in medical judgment or opinion do not 8 rise to the level of a constitutional violation. Jackson v. McIntosh, 9 90 F.3d 330, 331 (9th Cir.), cert. denied, 519 U.S. 1029 (1996); 10 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon 11 State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Hutchinson v. United States, 838 In either case, however, the indifference to the inmate’s needs must be purposeful and substantial; negligence, 12 A mere difference of opinion as to which medically acceptable 13 course of treatment should be followed does not establish deliberate 14 indifference. 15 Thus, deliberate indifference is not shown if the defendant has based 16 his actions on a medical judgment that either of two alternative 17 courses 18 circumstances. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 19 Where defendant doctors have chosen one course of action and a 20 plaintiff contends that they should have chosen another course of 21 action, the plaintiff “must show that the course of treatment the 22 doctors chose was medically unacceptable under the circumstances, ... 23 and the plaintiff must show that they chose this course in conscious 24 disregard of an excessive risk to plaintiff’s health.” of Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). treatment would be medically acceptable under the Id. 25 An inmate’s transsexualism is a serious medical need to which 26 prison officials may not be deliberately indifferent without violating 27 the Eighth Amendment. See White v. Farmer, 849 F.2d 322, 325 (8th Cir. 28 1988) and Merriweather v. Faulkner, 821 F.2d 408, 417 (7th Cir. 1987), 10 1 cert. denied, 484 U.S. 935 (1987). 2 Here, if Plaintiff can show a likelihood of success on the merits 3 for her Eighth Amendment claim for deliberate indifference to medical 4 care, then she could be entitled to preliminary injunctive relief. At 5 this 6 opinion,it is unclear to the Court whether Defendants’ denial of 7 hormone therapy to Plaintiff constitutes deliberate indifference. The 8 Court notes that Defendants have not categorically denied Plaintiff 9 medical treatment; however, the Court is concerned with Defendants’ 10 apparent failure to comply with CDCR regulations regarding continuing 11 hormone therapy for transgender inmates upon prison transfers. (See 12 California Correctional Health Care Services Manual, Chapter 26, 13 Hormone Therapy for Transgender Inmate Patients.) time without Defendant Doctors response or medical expert 14 Further, the records seem to suggest that recommendations of Dr. 15 Bazile, a transgender specialist, that Plaintiff be reinstated on 16 hormone therapy (Estradiol patch 0.4 mgs topically twice weekly)in 17 November of 2009 was never followed up on by Defendants. 18 also concerned regarding the failure to provide Plaintiff with the 19 pain medications for Gabapentin and Robaxin prescribed by Dr. Stepke 20 on November 12, 2009. The Court is 21 Plaintiff in her Motion for injunctive relief requests the Court 22 to compel Defendants to provide Plaintiff with specific medications 23 which she contends the failure to provide her with constitutes 24 deliberate indifference. As noted in Plaintiff’s records, some of the 25 doctors who treated Plaintiff differ in their opinions with respect to 26 the specific type of medication which should be prescribed. This 27 failure to provide Plaintiff with her requested medications is not 28 sufficient to state a claim of deliberate indifference. 11 Thus, it 1 cannot be said that Plaintiff has demonstrated a likelihood of success 2 on the merits. 3 prejudice. Plaintiff’s Motion is therefore Denied without 4 5 DATED:September 14, 2010 VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE 6 7 8 Presented this 7th September, 2010 by: day of 9 10 11 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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