Garcia v. Centurion of Arizona LLC ( 2020 )

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angel Lopez Garcia, No. CV 20-01924-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Centurion of Arizona, LLC, et al., 13 Defendants. 14 15 Plaintiff Angel Lopez Garcia, who is represented by counsel, filed this action 16 pursuant to 42 U.S.C. § 1983 and Arizona state law. Before the Court is Plaintiff’s Motion 17 for Temporary Restraining Order and Preliminary Injunction (Doc. 5). 18 I. Background 19 On screening the original Complaint under 28 U.S.C. § 1915A(a), the Court 20 determined that Plaintiff stated: (1) an Eighth Amendment claim against Defendants 21 Stewart, Olmstead, and Smith based on deliberate indifference to serious medical needs, 22 (2) an Eighth Amendment policy, practice, or custom claim against Defendant Centurion 23 of Arizona (“Centurion”), (3) a state law medical malpractice claim against Defendants 24 Stewart and Olmstead, (4) a state law medical malpractice claim against Defendant 25 Centurion based on vicarious liability, and (5) a medical malpractice and negligence claim 26 against Defendants Simons Physical Therapy and Jennings. (Doc. 7.) 27 The Court dismissed the fictitiously named Defendants and the Americans with 28 Disabilities Act (ADA) claim in Count Five because it was improperly asserted against 1 certain Defendants in their individual capacities. (Id.) Plaintiff subsequently filed a First 2 Amended Complaint reasserting the claims recognized in the Screening Order and asserted 3 an additional ADA claim against the Arizona Department of Corrections (ADC).1 4 II. Plaintiff’s Motion for Injunctive Relief 5 In his Motion, Plaintiff asserts that while in the custody of the ADC, he has suffered 6 from severe hip and spine impairments for which prison medical providers have prescribed 7 a walker, wheelchair, ramps, handrails, medications, and ordered updated MRI exams and 8 specialist consultations since the summer of 2019. (Doc. 5 at 1-2.) Plaintiff asserts that on 9 September 29, 2020, Centurion discontinued all of Plaintiff’s treatments and orders without 10 explanation. (Id. at 2.) Plaintiff requests that the Court order that Centurion (1) be enjoined 11 from denying, obstructing, interfering, or delaying Plaintiff’s access to wheelchair, ramps, 12 handrails, and medications, (2) be enjoined from denying, obstructing, interfering with, or 13 delaying Plaintiff’s access to his neurosurgeon, Dr. Iman Faez-Erfan of Valleywise Health, 14 and the radiological exams, surgery, rehabilitation, and other diagnosis and treatment as 15 deemed necessary by the neurosurgeon for Plaintiff’s severe labral tear of right hip and 16 degenerative conditions of his spine, (3) immediately transfer Plaintiff to a medical unit or 17 ADA accessible unit within 7 days of the Court’s Order, and (4) have a non-party medical 18 provider assess Plaintiff’s functional abilities to determine if Plaintiff has a disability that 19 requires him to be transferred to an ADA-accessible facility. (Id. at 4.) 20 In Response, Defendants assert that Plaintiff has received a wheelchair despite 21 evidence suggesting it is unnecessary, he has received or is receiving pain medications, he 22 23 1 The docket reflects that the ADC was served on November 5, 2020, but has not 24 yet appeared in this action. The Court notes that the proper party to an ADA claim is 25 generally the State of Arizona or the Director of the ADC in his official capacity. See Seawright v. Arizona, No. CV 11–1304–PHX–JAT, 2012 WL 2191709, at *3 (D. Ariz. 26 June 13, 2012) (“No Arizona state legislation provides the ADC with authority to sue or 27 be sued. Since the ADC is a non-jural entity that is not authorized under Arizona law to sue or be sued, it is not a proper party and is subject to dismissal. See generally AZ ST T. 28 41, Ch. 11, Art. 1, et seq.”). Since the ADC has been served with the First Amended Complaint, the Court will take no further action with regard to this Defendant at this time. 1 has had MRIs, neurologist and orthopedic specialist examinations, including an EMG and 2 he was scheduled for MRIs and specialist appointments scheduled within two weeks of the 3 time the response was filed. (Doc. 26 at 2.) Defendants assert that Plaintiff has been 4 provided medical ice, has a walker, and is being weaned from pain medications. (Id. at 2- 5 3.) 6 Defendants assert that Plaintiff’s pain and alleged injuries have been documented to 7 be inconsistent with examination findings. (Id. at 3.) Defendants assert that Plaintiff’s 8 treating provider, Nurse Practitioner Olmstead, has made a medical decision to wean 9 Plaintiff off of muscle relaxers, opioids, and Gabapentin, but Plaintiff is still being provided 10 Tramadol and Cymbalta and that ibuprofen has been added to replace naproxen, but 11 Plaintiff is now refusing ibuprofen. (Id. at 4-5.) 12 Defendants assert that Plaintiff has been provided a wheelchair as of October 26, 13 2020 until he is seen at a follow-up orthopedic examination and the physician provides a 14 recommendation. (Id. at 5.) 15 In Reply, Plaintiff asserts that the injunctive relief he seeks is not moot because the 16 relief provided is only temporary, partial, or promised. Plaintiff asserts that he is concerned 17 that his wheelchair will be removed again if his Motion is denied, that he is being provided 18 ineffective pain medication and is allergic to ibuprofen, and that he has not received the 19 return of several of his assistance devices, most of his medications, and has not received 20 the orthopedic exam recommended by a specialist in November 2019, and Plaintiff is 21 concerned that when he is sent for the orthopedic consult, the specialist will not be provided 22 all of medical records, which has caused issues with Plaintiff getting proper care in the 23 past. 24 III. Injunctive Relief Standard 25 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 26 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 27 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 28 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 1 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 2 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that 3 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 4 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 5 public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are 6 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the 7 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 8 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell 9 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 10 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious 11 questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger 12 showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 13 1072. 14 Regardless of which standard applies, the movant “has the burden of proof on each 15 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 16 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a 17 mandatory preliminary injunction, which should not be granted “unless the facts and law 18 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th 19 Cir. 1986) (citation omitted). 20 The Prison Litigation Reform Act imposes additional requirements on prisoner 21 litigants who seek preliminary injunctive relief against prison officials and requires that 22 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 23 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 24 999 (9th Cir. 2000). 25 IV. Discussion 26 Throughout the briefing on this Motion, Plaintiff’s medical treatment was changing 27 and the Parties appear to agree that Plaintiff has upcoming scheduled appointments. 28 Although Plaintiff expresses fear that if the Court does not intervene, his care will return 1| to the allegedly deficient care he was receiving, the Court cannot intervene in the absence 2| of irreparable harm. On this record, the Court cannot conclude that Plaintiff will suffer 3 | irreparable harm in the absence of an injunction. See Caribbean Marine Servs. Co., Inc. v. 4) Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (speculative injury is not irreparable injury 5 | sufficient for a preliminary injunction); see Winter, 555 U.S. at 22. To support a mandatory 6 | preliminary injunction for specific medical treatment, a plaintiff must demonstrate ongoing 7 | harm or the present threat of irreparable injury, not a past injury. See Conn. v. Mass., 282 U.S. 660, 674 (1931) (an injunction is only appropriate “to prevent existing or presently 9| threatened injuries”); Caribbean Marine, 844 F.2d at 674. Plaintiff argues that the 10 | violation of his constitutional rights is, in itself, irreparable harm, but Defendants are 11 | already required, by law, to not violate Plaintiff's constitutional rights. As of the date of the conclusion of the briefing, Plaintiff was in possession of a wheelchair and was 13 | scheduled for follow-up treatment, which would presumably determine what medications he should appropriately be given, and whether he needs ADA accommodations. As such, 15 | Plaintiff has not shown that he will suffer irreparable harm in the absence of an injunction 16 | on this record, and his Motion will be denied without prejudice. 17| ITIS ORDERED: 18 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 19 | for Temporary Restraining Order and Preliminary Injunction (Doc. 5). 20 (2) Plaintiff's Motion for Temporary Restraining Order and Preliminary 21 Injunction (Doc. 5) is denied without prejudice. 22 Dated this 10th day of December, 2020. 23 24 A 25 James A. Teilborg 26 Senior United States District Judge 27 28