Shores 325025 v. Centurion Incorporated ( 2020 )

1 JDN 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Heath Shores, No. CV 20-00759-PHX-DGC (CDB) 10 Plaintiff, 11 vs. ORDER 12 Centurion Incorporated, et al., 13 Defendant. 14 15 16 Plaintiff Robert Heath Shores, who is confined at the Arizona State Prison Complex- 17 Eyman in Florence, Arizona, brought this pro se civil rights action under 42 U.S.C. § 1983 18 against Centurion Health and Nurse Practitioner (NP) Siji Thomas. (Doc. 27.) Before the 19 Court is Shores’ Renewed Motion for Preliminary Injunction, which seeks emergency 20 medical treatment for his prostate. (Doc. 42.) The Court will deny the Renewed Motion. 21 I. Background Summary1 22 In his First Amended Complaint, Shores alleged that he was, and continues to be, 23 denied necessary medical care for a nodule on his prostate and worsening prostate-related 24 pain and symptoms. (Doc. 27.) He named as Defendants NP Thomas and Centurion, the 25 private company contracted to provide health care to prisoners in the Arizona Department 26 of Corrections. (Id.) Shores alleged that Defendants have failed to treat or monitor his 27 28 1 A thorough background and facts detailing Shore’s condition and treatment is set forth in the Court’s August 13, 2020 Order. (Doc. 39.) 1 condition adequately or provide physician-ordered treatment. (Id. at 3–8.) Shores stated 2 that, as a result, he has had to have a Foley catheter placed with a leg bag, and he may 3 require this device for the rest of his life. (Id. at 9.) In his request for relief, Shores sought 4 money damages, declaratory relief, and injunctive relief in the form of necessary treatment 5 from a cancer specialist. (Id. at 19–20.) 6 On June 12, 2020, Shores filed a Motion for Preliminary Injunction, in which he 7 stated that he finally saw a urologist on April 25, 2020, but that he had not received the 8 follow-up treatment recommended by the urologist and that his symptoms and pain had 9 worsened. (Doc. 11 at 2–4.) He requested an order directing Centurion to send him to a 10 cancer specialist. (Id. at 4.) 11 Medical records submitted with briefing on the Motion for Preliminary Injunction 12 showed that on April 25, 2020, Shores saw urologist Dr. Peter Niemczyk, who ordered an 13 ultrasound and lab tests and recommended that Shores return in two weeks for further 14 testing. (Doc. 20-3 at 3–7.) Shores did not see Dr. Niemczyk again until July 18, 2020. 15 (Doc. 33-1 at 12.) At the July 18 appointment, Dr. Niemczyk conducted an examination 16 and ultrasound and assessed possible dysfunctional voiding; however, urodynamics testing 17 was necessary to confirm. (Id. at 13.) Dr. Niemczyk ordered a two-week follow up and 18 urodynamics testing, which he noted was “urgent.” (Id. at 10.) Medical records showed 19 that Centurion authorized a urology consult for urodynamics testing, and Shores was 20 scheduled to see Dr. Niemczyk for a date in August 2020. (Id. 6–8.) 21 On August 13, 2020, the Court entered an Order on the Motion for Preliminary 22 Injunction. (Doc. 39.) The Court determined that there were serious questions whether 23 Centurion had denied and delayed necessary physician and specialist-ordered treatment 24 and whether the delays were medically unacceptable under the circumstances. (Id. at 10– 25 12.) But because Shores saw the urologist on July 18, 2020, which was essentially the 26 relief he sought, the Court denied the Motion for Preliminary Injunction without prejudice 27 to refiling. (Id. at 13.) The Court noted that there was a pending August 2020 follow-up 28 appointment scheduled, and that if that appointment did not occur, or Defendants did not 1 provide the treatment recommended by Dr. Niemczyk at that appointment, Shores could 2 renew his Motion. (Id.) 3 On August 31, 2020, Shores filed his pending Renewed Motion for Preliminary 4 Injunction. (Doc. 42.) He states that medical staff delayed seeing him despite his severe 5 pain, and when he was finally seen he was diagnosed with a severe urinary tract infection. 6 (Id. at 1–2.) Shores states that he saw Dr. Niemcyzk on August 16, 2020, but to date he 7 has not been returned to the urologist despite a recommendation for a two-week follow up. 8 (Id. at 2–3.) Shores requests that an order be issued directing Defendants to change Shores’ 9 leg bag every seven days, change his catheter every 30 days, not refuse medical care, and 10 return Shores to the urologist within the two-week recommended timeframe and follow 11 through with all the specialist’s recommendations. (Id. at 4.) 12 In their opposition to the Motion, Defendants claim that the medical records show 13 Shores was returned to the urologist on September 26, 2020, and that medical staff has 14 been responsive to Shores’ medical needs, including providing leg bag changes and a 15 catheter change. (Doc. 55 at 1–2.) 16 II. Additional Facts 17 During the first two weeks in August 2020, Shores reported to officers and via health 18 needs requests (HNRs) that he was in severe pain and needed medical attention, but he was 19 told to change the leg bag by himself and medical refused to see him until August 14, 2020. 20 (Doc. 42 at 2.) By that time, Shores was in severe pain, had a 102-degree temperature, and 21 was diagnosed with a severe urinary tract infection. (Id.) Shores was prescribed three 22 different antibiotics, but his catheter was not changed. (Id. at 2–3.) 23 Shores saw Dr. Niemczyk on August 16, 2020. (Id. at 3.)2 The urodynamics testing 24 could not be done due to the urinary tract infection. (Id. at 2–3.) Dr. Niemczyk changed 25 the catheter and recommended that Shores return in two weeks for the testing. (Id. at 3.) 26 27 28 2 Defendants did not submit the medical record from the August 16, 2020 encounter. (See Doc. 55.) 1 On September 1, 2020, Shores submitted an HNR stating that he saw urology on 2 August 16, 2020, and the urologist made an urgent request that Shores return in two weeks. 3 Shores requested to be sent to urology as soon as possible as he was in severe pain. 4 (Doc. 58 at 6.) In response to the HNR, Shores saw NP Thomas. (Doc. 55-1 at 3.) NP 5 Thomas spoke to the clinical coordinator to expedite the urology consult, prescribed 6 Lorazepam as a trial for dysfunctional voiding per the urologist’s recommendation, and 7 spoke to Shores about a plan to change the urobag monthly. (Id. at 5.) 8 Defendants submit a Consultation Request Action form showing a request for 9 urology consult initially made on July 21, 2020. (Id. at 7.) A note on this form, dated 10 September 8, 2020, states that the first available appointment with Dr. Niemczyk was 11 September 26, 2020. (Id.) 12 On September 13, 2020, Shores submitted an “urgent” HNR stating that the 13 urologist requested Shores return for a two-week follow up and it had been four weeks 14 since he saw the urologist. (Doc. 58 at 3, 10.) Shores requested that medical staff please 15 stop delaying the specialist-recommended treatment. (Id.) 16 On September 16, 2020, Nurse Anderson changed Shores’ catheter. (Doc. 55-1 at 17 8, 11.) 18 On September 26, 2020, Shores saw Dr. Niemczyk. (Id. at 13.)3 On a Centurion 19 form that Dr. Niemczyk filled out following this appointment, Dr. Niemczyk wrote that the 20 finding was voiding dysfunction, the diagnosis and prescription was “same,” and that 21 follow up included (1) pelvic floor physical therapy and (2) clean or sterile intermittent 22 catheterization. (Id.) 23 On September 27, 2020, Shores went to medical for a leg bag change because the 24 twist cap on his bag popped off into the toilet as he emptied the bag. (Id. at 26–27.) Shores 25 was given a new bag, and he changed the bag himself. (Id. at 27.) 26 … 27 28 3 Defendants did not submit the medical record from the September 26, 2020 encounter. (See Doc. 55.) 1 III. Preliminary Injunction Standard 2 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 3 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 4 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 5 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 6 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 7 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that 8 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 9 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 10 public interest. Winter, 555 U.S. at 20. “[I]f a plaintiff can only show that there are ‘serious 11 questions going to the merits’—a lesser showing than likelihood of success on the merits— 12 then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the 13 plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. 14 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild 15 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 16 IV. Discussion 17 To support a mandatory preliminary injunction for specific medical treatment, 18 Shores must demonstrate ongoing harm or the present threat of irreparable injury, not a 19 past injury. See Conn. v. Mass., 282 U.S. 660, 674 (1931) (an injunction is only appropriate 20 “to prevent existing or presently threatened injuries”); Caribbean Marine, 844 F.2d at 674. 21 The medical records show that Shores saw Dr. Niemczyk on September 26, 2020. 22 (Doc. 33-1 at 12–13.) The records also show that medical staff changed Shores’ catheter 23 on September 16, 2020, and they spoke to him about changing the leg bag monthly. It is 24 troubling that Defendants did not submit the relevant August 16 and September 26, 2020 25 medical records. Nonetheless, Shores did not file a Reply in support of his Motion and, 26 therefore, did not dispute that the only recommended follow up noted on September 26, 27 2020 was pelvic floor physical therapy and intermittent catherization. On November 17, 28 2020, Shores filed a Motion seeking a status request on the pending Renewed Motion for 1) Preliminary Injunction. (Doc. 59.) In this Motion, Shores did not provide any further facts 2| suggesting that the physical therapy or intermittent catherization was not being done. (/d.) 3 In short, the record indicates that Shores has effectively received the relief sought 4| in his Renewed Motion for Preliminary Injunction. See Farmer, 511 U.S. at 846. Accordingly, the request for injunctive relief is moot, and the Renewed Motion for 6| Preliminary Injunction will be denied without prejudice. 7 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 8 | Plaintiff's Renewed Motion for Preliminary Injunction (Doc. 42), and the Motion is denied. 10 Dated this 7th day of December, 2020. 11 a Daal Cour Dank & phel 4 David G. Campbell Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-