(PC) Robison v. Hill et al, No. 2:2010cv02954 - Document 42 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/12/2011 ORDERING that Plaintiff's 39 July 18, 2011 motion for extension of time is GRANTED. Plaintiff's July 25, 2011 reply brief is deemed timely file d. IT IS HEREBY RECOMMENDED that plaintiff's 10 December 7, 2010 and 34 June 7,2011 motions for injunctive relief be denied; referred to Judge John A. Mendez. Objections due within fourteen days after being served with these findings and recommendations. (Duong, D)
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(PC) Robison v. Hill et al Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GLEN W. ROBISON, 11 Plaintiff, 12 13 No. 2:10-cv-2954 JAM JFM (PC) vs. PARAMVIR SAHOTA, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. Plaintiff claims that his rights under the Eighth Amendment are being 18 violated by deliberate indifference to his serious medical needs. This matter is before the court 19 on plaintiff’s motion for preliminary injunction. Plaintiff seeks a court order requiring 20 defendants to provide him with a weight gain diet, physical therapy, an appointment with an 21 orthopedic specialist, an MRI, and thermal underwear, all to treat left knee and pelvic/hip pain 22 from which he suffers.1 23 ///// 24 1 25 26 On July 18, 2011, plaintiff filed a motion for an extension of time to file a reply brief in support of his motion. On July 25, 2011, plaintiff filed his reply. Good cause appearing, plaintiff’s July 25, 2011 motion for extension of time will be granted and plaintiff’s July 25, 2011 reply brief deemed timely filed. 1 Dockets.Justia.com 1 The legal principles applicable to a request for injunctive relief are well 2 established. To prevail, the moving party must show either a likelihood of success on the merits 3 and the possibility of irreparable injury, or that serious questions are raised and the balance of 4 hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 5 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 6 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal 7 point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under 8 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 9 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 10 court need not reach the issue of likelihood of success on the merits. Id. 11 In cases brought by prisoners involving conditions of confinement, any 12 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 13 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 14 correct the harm.” 18 U.S.C. § 3626(a)(2). 15 As noted above, plaintiff seeks a court order requiring defendants to provide him 16 with a weight gain diet, physical therapy, an appointment with an orthopedic specialist, an MRI, 17 and thermal underwear, all to treat left knee and pelvic/hip pain from which he suffers. 18 Defendants have presented the following evidence in response to plaintiff’s 19 motion. Plaintiff suffers from hip pain and has a history of trochanteric bursitis. Declaration of 20 M. Jeu, filed June 13, 2011, at ¶¶ 3, 5, 7, 9. X-rays of both hips taken on August 19, 2010 21 “revealed a bullet fragment over the posteromedial left thigh and minimal osteoarthritis of both 22 hip joint. Sacroiliac joints were intact.” Id. at ¶ 9. Plaintiff also suffers from “pain in the left 23 knee due to degenerative condition.” Id. at ¶ 4. 24 ///// 25 ///// 26 ///// 2 1 On January 7, 2009, plaintiff was given a steroid injection to his right trochanteric 2 bursa. Id. at ¶ 7. A medical note dated February 9, 2009, indicates that plaintiff stated that “his 3 right hip pain has improved 95%.” Id. Plaintiff has received orthotic shoes. Id. at ¶ 8. Plaintiff 4 was again complaining of right hip pain in January 2010 and was scheduled for another steroid 5 injection on February 3, 2010 but he declined “because of depigmentation of the overlying skin.” 6 Id. at ¶ 9. Plaintiff has continued to refuse steroid injections. Id. 7 The main treatment for osteoarthritis is a nonsteroidal anti inflammatory (NSAID) 8 medication such as Ibuprofen. Id. Plaintiff refuses to take this medication. Id. Plaintiff was 9 seen by a pain specialist on December 2, 2010. The recommendations were for a repeat steroid 10 injection in the hip, an injection in the left knee, NSAIDs for pain control, and physical therapy. 11 Id. Plaintiff refused the NSAIDs and the injection but has had physical therapy. Id. An MRI is 12 not required for plaintiff’s osteoarthritis and is contraindicated because of the metal shrapnel on 13 his thigh and left knee and the bullet fragment on his left hip. Id. 14 Plaintiff disputes that he reported that the steroid injection improved his hip pain 15 by 95%. Notice of Affidavit in Support of Plaintiff Reply to the Defendant Opposition in the 16 Granting of a Preliminary Injunction, filed July 25, 2011 (Pl.’s Aff.), at ¶ 4. Plaintiff contends 17 that he refused the NSAIDs because they did not work, and that he did not demand morphine, 18 Tylenol III or Vicodin. Id. at ¶ 7. Plaintiff claims that he is being given “aerobic exercise”, not 19 physical therapy. Plaintiff’s Reply, at 7. Plaintiff also claims that Dr. Jeu told him he would 20 need surgery. Pl.’s Aff. at ¶¶ 8-9. 21 To prevail on his claim that he is being denied constitutionally adequate medical 22 care, plaintiff must prove acts or omissions sufficiently harmful to evidence deliberate 23 indifference to serious medical needs. Hudson v. McMillian, 503 U.S. 1, 5 (1992); Estelle v. 24 Gamble, 429 U.S. 97, 106 (1976). A difference of opinion about treatment does not amount to a 25 deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 26 Cir. 2004). “Rather, to prevail on a claim involving choices between alternative courses of 3 1 treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable 2 under the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the 3 prisoner's] health.’” Id. (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 4 On the record before this court, plaintiff’s Eighth Amendment claim appears to 5 arise from a difference of opinion about the proper course of treatment for his knee and hip pain. 6 As noted above, such a difference of opinion does not constitute deliberate indifference. 7 Moreover, the record suggests that defendants have offered treatment for the conditions of which 8 plaintiff complains and that plaintiff has refused that treatment because of the difference of 9 opinion with his medical providers.2 For that reason, this court finds that plaintiff has failed to 10 demonstrate a likelihood of success on the merits of his Eighth Amendment claim or to 11 demonstrate that he is threatened with irreparable harm as a result of defendants’ actions. 12 Accordingly, plaintiff’s motion for preliminary injunction should be denied. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s July 18, 2011 motion for extension of time is granted; 15 2. Plaintiff’s July 25, 2011 reply brief is deemed timely filed; and 16 IT IS HEREBY RECOMMENDED that plaintiff’s December 7, 2010 and June 7, 17 2011 motions for injunctive relief be denied. 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 20 days after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be filed and served within fourteen days after service of the objections. The 24 25 26 2 As noted above, plaintiff contends that he has refused the NSAIDs for osteoarthritis because they don’t work; however, he has not presented any evidence that he has followed the recommended course of NSAIDs before reaching this conclusion. 4 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: August 12, 2011. 4 5 6 7 8 12 robi2954.pi 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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