-GBC (PC) Ahdom v. Enenmoh et al, No. 1:2010cv00816 - Document 16 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 4 and 13 Plaintiff's Motions for Injunctive Relief be DENIED on the Grounds that Plaintiff Has Not Met His Burden as the Moving Party re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Gerald B. Cohn on 2/24/2011. Referred to Judge Wanger. Objections to F&R due by 3/31/2011. (Jessen, A)
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-GBC (PC) Ahdom v. Enenmoh et al Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BILAL AHDOM, 10 Plaintiff, 11 12 1:10-cv-00816-OWW-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING MOTIONS FOR INJUNCTIVE RELIEF (Docs. 4, 13) v. ENENMOH, et al., 13 Defendants. 14 / 15 I. Procedural Background 16 Bilal Ahdom (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this 17 civil rights action filed pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 12132, Title II of the Americans 18 with Disabilities Act (ADA) and § 504 of the Rehabilitation Act (RA). On May 11, 2010, Plaintiff 19 filed his original complaint. (Doc. 1). On May 13, 2010, Plaintiff filed a motion for injunctive relief 20 and on October 6, 2010, Plaintiff filed a renewed motion for injunctive relief. (Docs. 4, 13). On 21 December 28, 2010, the Court issued an Order To Show Cause (“OSC”) regarding whether Plaintiff 22 exhausted his administrative remedies. On January 19, 2011, Plaintiff submitted a response to the 23 OSC and demonstrated that he properly exhausted administrative remedies prior to filing suit. (Doc. 24 15). 25 26 II. Motions for Preliminary Injunction 27 “A preliminary injunction is an extraordinary remedy never awarded as a matter of 28 1 Dockets.Justia.com Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376 1 right.” 2 (2008)(citation omitted). “A plaintiff seeking a preliminary injunction must establish that 3 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence 4 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is 5 in the public interest.” Id. at 374 (citations omitted). An injunction may only be awarded 6 upon a clear showing that the plaintiff is entitled to relief. 7 omitted)(emphasis added). The Ninth Circuit has made clear that “to the extent that our 8 cases have suggested a lesser standard, they are no longer controlling, or even viable.” 9 McDermott v. Ampersand Pub., LLC, 593 F.3d 950 (9th Cir. 2010), quoting Am. Trucking 10 Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The moving party 11 has the burden of proof on each element of the test. Environmental Council of Sacramento 12 v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). Id. at 376 (citation 13 Plaintiff has not met his burden as the moving party. “[A] preliminary injunction is an 14 extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear 15 showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) 16 (quotations and citations omitted) (emphasis in original). A mandatory preliminary injunction, such 17 as that sought by plaintiff in the instant motions, “is subject to heightened scrutiny and should not 18 be issued unless the facts and the law clearly favor the moving party.” Dahl v. Hem Pharmaceuticals 19 Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). As the moving party, it is plaintiff who bears the burden, 20 and the burden does not shift to defendants unless and until plaintiff’s burden has been met. 21 For Plaintiff to prevail on his Eighth Amendment claim, he “must objectively show that he 22 was deprived of something sufficiently serious, and make a subjective showing that the deprivation 23 occurred with deliberate indifference to the inmate's health or safety.” Thomas v. Ponder, 611 F.3d 24 1144, 1150 (9th Cir. 2010)(internal quotations omitted). A prison official does not act in a 25 deliberately indifferent manner unless the official “knows of and disregards an excessive risk to 26 inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “Deliberate indifference 27 is a high legal standard.” Toguchi, 391 F.3d at 1060. “A difference of opinion between a prisoner- 28 patient and prison medical authorities regarding treatment does not give rise to a s 1983 claim,” 2 1 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted), and a difference 2 of opinion between medical personnel regarding treatment does not amount to deliberate 3 indifference, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To prevail, plaintiff “must show 4 that the course of treatment the doctors chose was medically unacceptable under the circumstances 5 . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s 6 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). 7 Although a plaintiff may offer his lay opinion as to the symptoms he is experiencing (e.g., 8 pain, swollen legs, headache, etc.), a plaintiff may not offer his opinion as to the underlying medical 9 causes for his symptoms and problems or the appropriate testing and treatment. In addition to his 10 own opinion, most of which is inadmissible, plaintiff has submitted documentary evidence in the 11 form of medical records. However, plaintiff has not provided any qualified interpretation of the 12 records, and the records themselves do not contain any plain statements that plaintiff is under 13 significant threat of irreparable harm without the injunction. Moreover, Plaintiff has not submitted 14 a chrono stating that Plaintiff is mandated to have a wheelchair accessible cell. Thus 15 Plaintiff has failed to demonstrate a likelihood of success on the merits or raise serious 16 questions going to the merits. Therefore, the Court, in its discretion, will deny the motion for 17 a preliminary injunction. 18 Based on the above, the Court HEREBY RECOMMENDS: 19 1. that Plaintiff’s motions for injunctive relief filed on May 13, 2010, and on October 20 6, 2010, be DENIED on the grounds that Plaintiff has not met his burden as the 21 moving party. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 3 days after being served with these Findings and Recommendations, the parties may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” The parties are advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 9 10 11 IT IS SO ORDERED. Dated: 0jh02o February 24, 2011 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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