Colon v. Miranda et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 11/15/11 DENYING 2 Motion for Preliminary Injunction; Clerk of the Court is directed to send a copy of this order upon Monica Anderson, Supervising Deputy Attorney General and Chief Medical Executive Dorothy Swingle, High Desert State Prison, 475-750 Rice Canyon Road, P.O. 750, Susanville, CA 96127. (cc Monica Anderson)(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FELIX COLON,
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Plaintiff,
vs.
R. MIRANDA, et al.,
Defendants.
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No. CIV S-11-2407 GGH P
ORDER
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, proceeds with a
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civil rights action pursuant to 42 U.S.C. § 1983. The case is before the undersigned pursuant to
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plaintiff’s consent. Doc. 6. On September 12, 2011, plaintiff filed a complaint and a motion for
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a preliminary injunction. The court ordered the Attorney General to file briefing with respect to
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the preliminary injunction even though no defendants had been served. Briefing was timely filed
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and plaintiff has filed a response.
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Preliminary Injunction
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“The proper legal standard for preliminary injunctive relief requires a party to
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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm
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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
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injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
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2009), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374 (2008).
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The “serious questions” on the merits test survives, but requires an even clearer showing of
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irreparable harm and hardship if a preliminary injunction were not to be granted. Alliance for
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the Wild Rockies, 632 F.3d 1127, 1131-32 (9th Cir. 2011).
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In cases brought by prisoners involving conditions of confinement, any
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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the
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harm the court finds requires preliminary relief, and be the least intrusive means necessary to
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correct the harm.” 18 U.S.C. § 3626(a)(2).
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Plaintiff states in his motion for injunctive relief that he was transferred to High
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Desert State Prison on November 18, 2009, and at that time plaintiff was being prescribed
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Tramadol to treat a spinal injury. Tramedol is a pain killer with addictive qualities similar to
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narcotics. Plaintiff states that a few weeks later he was taken off Tramadol and instead
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prescribed Tylenol. A little more than one year later, on January 11, 2011, plaintiff requested to
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be again prescribed Tramadol but this request was denied by defendants. Plaintiff states he is in
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a great deal of pain as a result.
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The Chief Medical Executive of HDSP reviewed plaintiff’s medical file and
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provided a declaration to the court. When plaintiff arrived at HDSP he received a medical
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examination and based on his range of motion, ability to walk without pain and an unremarkable
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back examination that indicated no spasms or deformities, plaintiff was prescribed ibuprofen and
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a non-steroidal anti-inflammatory. The examining physicians assistant also believed that
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plaintiff was exaggerating his pain.
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Plaintiff was seen again on January 28, 2010, his range of motion was good and
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he was not experiencing significant pain and reported no pain during the exam. He did say he
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had chronic back pain but indicated that the pain did not radiate and at its worst his pain level
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was a 4 on a scale of 0 to 10. He was continued on ibuprofen.
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Plaintiff was seen again on April 15, 2010, and reported that his back pain had
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improved, and only rated a 3 on a 0 to 10 scale. Plaintiff also refused physical therapy. He was
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continued on ibuprofen and Tylenol as needed.
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Plaintiff was seen again on May 28, 2010, where he complained of shoulder pain
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but stated his back pain had improved. He was put on Naproxen Sodium in addition to Tylenol.
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Plaintiff was seen on September 4, 2010, where he reported that his back pain was stable with no
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changes, and he was not experiencing radiating pain or numbness. Plaintiff was seen by a nurse
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on January 1, 2011, and was scheduled to see a doctor on January 5, 2011, but there are no notes
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to confirm the appointment occurred. Plaintiff took part in physical therapy for approximately
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one week in June 2011. Plaintiff was observed to be walking well, but slowly, no impairment in
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his gait and he had no difficulty getting on and off the exam table.
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Plaintiff had several other medical appointments and then on August 31, 2011, he
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requested Tramdol due to his back pain. At that time, plaintiff’s gait was normal, he was able to
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sit, turn and twist without distress. Plaintiff has also been scheduled for an MRI which will
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occur within 90 days from when it was ordered, on September 21, 2011.
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Plaintiff filed a response to the declaration from the Chief Medical Executive, but
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generally did not contest the information set forth, other than that the Chief Medical Executive
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states plaintiff refused a MRI in July 2011, but plaintiff states he was never called for it.
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To the extent plaintiff argues that he was improperly removed from Tramadol and
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not provided it again for two years, the record before the court indicates that plaintiff was not in
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need of it and his back pain was being properly managed. Based on the declaration from HDSP,
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plaintiff did not appear to have any significant medical problems with his back pain until August
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31, 2011, and plaintiff does not refute this assertion. In his motion plaintiff alleges that he
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suffered from immediate unnecessary pain when the Tramadol was discontinued around
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December 2009. However, plaintiff did not file an appeal to be placed on Tramadol until a year
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later on January 11, 2011.
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As a result, plaintiff has failed to demonstrate that he is likely to suffer irreparable
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harm in the absence of preliminary relief, as he has already been without Tramadol for two years
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and appears to be able to cope with the pain. In addition, plaintiff has not shown he is likely to
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succeed on the merits as his whole argument rests on his statements that he has been in severe
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pain for several years, which has been contradicted by his own statements to HDSP medical staff.
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While it is possible that plaintiff’s back condition deteriorated in August 2011, plaintiff has
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failed to meet his burden in proving such.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for a preliminary injunction (Doc. 2) is denied;
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2. The Clerk of the Court is directed to send a copy of this order upon Monica
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Anderson, Supervising Deputy Attorney General and Chief Medical Executive Dorothy Swingle,
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High Desert State Prison, 475-750 Rice Canyon Road, P.O. 750, Susanville, CA 96127.
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DATED: November 15, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
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