-JFM (PC) Randall v. Kimura, et al, No. 2:2010cv00052 - Document 53 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/04/11 recommending that plaintiff's 07/01/11 motion for preliminary injunction be denied. Motion for Preliminary Injunction 40 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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-JFM (PC) Randall v. Kimura, et al Doc. 53 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JERALD RANDALL, 11 Plaintiff, 12 13 No. 2:10-cv-0052 JAM JFM (PC) vs. T. KIMURA, et al., 14 Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action 17 filed pursuant to 42 U.S.C. § 1983. Plaintiff claims that his rights under the Eighth Amendment 18 were violated during a period of incarceration at High Desert State Prison (High Desert) as a 19 result of deliberate indifference to his serious medical needs. On July 1, 2011, plaintiff filed a 20 motion for preliminary injunction, seeking a court order requiring diagnostic tests and referral to 21 an outside specialist for the medical conditions described in his first amended complaint. 22 Defendants opposed the motion on the ground that plaintiff has transferred from High Desert to 23 California State Prison-Corcoran and, therefore, that his claim for injunctive relief against the 24 ///// 25 ///// 26 ///// 1 Dockets.Justia.com 1 two defendants who have appeared in this action to date, both of whom are employed at High 2 Desert, is moot.1 By order filed July 29, 2011, defendants were directed to file a complete copy 3 of plaintiff’s medical records. Defendants have complied with that order. 4 The legal principles applicable to a request for injunctive relief are well 5 established. To prevail, the moving party must show either a likelihood of success on the merits 6 and the possibility of irreparable injury, or that serious questions are raised and the balance of 7 hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 8 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 9 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal 10 point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under 11 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 12 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 13 court need not reach the issue of likelihood of success on the merits. Id. 14 In his motion for preliminary injunction, plaintiff alleges generally that since 15 before July 2008 he has “complained about an irregular heartbeat, tingling and itching in his 16 lower body and irregular growth of fingernails and to nails” and that “[t]he prison medical 17 department refuses to run diagnostic tests or have a specialist look at the medical abnormalities.” 18 Motion for Preliminary Injunction, filed July 1, 2011, at 1. Plaintiff’s medical records reflect 19 complaints about his toe nails, itchy skin, and fingernails in 2008. See Medical Records filed 20 August 8, 2011 at 61, 70, 74. The records also reflect that plaintiff has been followed since at 21 least 2008 for asthma and hypertension. See, e.g., Medical Records at 13-40, 72. In 2009, 22 plaintiff was treated with clotrimazole for a fungal infection. Id. at 54. A report from a follow- 23 up medical visit in September 2009 shows that examination revealed a heart murmur and that 24 plaintiff was referred for an echocardiogram, which was completed on November 12, 2009. Id. 25 1 26 The court has separately recommended dismissal of a third defendant, T. Kimura, due to plaintiff’s failure to return forms necessary for service of process. 2 1 at 34, 36. None of plaintiff’s medical records from 2011 substantiate his general allegation that 2 he has requested and denied further necessary diagnostic procedures for these complaints, and 3 plaintiff has presented no evidence to suggest that he is currently threatened with irreparable 4 harm from any of these medical conditions. 5 6 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s July 1, 2011 motion for preliminary injunction be denied. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: October 4, 2011. 16 17 18 19 20 12 rand0052.pi 21 22 23 24 25 26 3
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