Glover v. Ryan ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Glover, No. CV-21-00676-PHX-ROS (CDB) 10 Plaintiff, 11 v. ORDER 12 Charles Ryan, et al., 13 Defendants. 14 15 Plaintiff Daniel Glover has filed a Motion for Injunctive Relief requesting the Court 16 order Defendants arrange for him to see a urologist. Defendants argue no such consultation 17 is appropriate. The Court heard evidence and argument on June 30, 2021. The undisputed 18 facts show Plaintiff has made consistent reports of unrelenting pain for approximately six 19 months and Defendants have been unable to determine its cause. At the hearing, one of 20 Plaintiff’s medical providers conceded only a specialist could provide a more definitive 21 diagnosis. Therefore, a limited injunction requiring Plaintiff be seen by a urologist will be 22 entered. 23 BACKGROUND 24 The following facts are undisputed. On September 3, 2019, Plaintiff was seen by a 25 non-party provider, Nurse Practitioner Dorothy Igwe. (Doc. 31-2 at 2.) Plaintiff, who had 26 previously had bilateral inguinal hernias surgically repaired without complication (Docs. 27 31-1 at 2; 31-2 at 2),1 reported pain on both sides of his groin, stating his pain level ranged 28 1 According to the National Institute of Health’s MedlinePlus website, an inguinal 1 from 3-7 out of 10 and that ibuprofen helped with his pain. (Doc. 31-2 at 2.) Igwe reported 2 no tenderness, rigidity, guarding, or abdominal or inguinal bulge. (Id.) Plaintiff’s 3 ibuprofen supply was renewed for 14 days. (Id. at 2-3.) Igwe also ordered bloodwork, 4 which she reviewed on September 9, 2019, and found to reveal “no critical levels.” (Id. at 5 11.) 6 On January 8, 2021, Plaintiff submitted a “health needs request” (“HNR”) form 7 concerning pain in his left testicle.2 (Id. at 12, 21.) He was seen the next day by non-party 8 Nurse Pontious. (Id. at 12.) Plaintiff told Pontious his left testicle had begun shrinking 9 three days ago and he was experiencing a “dull and achy” pain, which he rated a “3 or 4” 10 out of 10. (Id. at 12.) Plaintiff denied experiencing any fevers, chills, testicle swelling, or 11 “difficulty with bowel or bladder.” (Id.) Pontious noted Plaintiff’s left testicle was 12 approximately three times smaller than his right testicle and referred him to a provider.3 13 (Id. at 14, 17.) 14 On January 11, 2021, Plaintiff saw Defendant Nurse Practitioner Karanja-Adams. 15 (Id. at 22.) He told Karanja-Adams he was experiencing a “dull pain” in his lower abdomen 16 that ranged from 3-7 on a scale of 10. (Id.) Karanja-Adams found no distention or masses 17 in Plaintiff’s abdomen and no indication of testicular torsion, strangulation, or 18 incarceration. (Id. at 23.) She nevertheless ordered a testicular and pelvic/lower abdominal 19 ultrasound and obtained Plaintiff’s agreement that if the ultrasounds were “approved by 20 the Medical Review Board,” Plaintiff would attend the appointment. (Id. at 27, 32.) 21 Karanja-Adams also offered Plaintiff an unspecified pain medication, which he declined, 22 and instructed him to continue his “current pain regimen” of ibuprofen. (Id. at 25.) 23 24 25 hernia is a bulging of an organ or tissue through a weak area of muscle in the groin. See https://medlineplus.gov/hernia.html (last visited June 17, 2021.) 26 2 For purposes of this discussion, the Court refers to the date on which Plaintiff signed the HNR, not the date it was marked “received.” 27 3 In general, a prisoner with a medical complaint is seen initially by a nurse and, if 28 the nurse determines it is appropriate, the prisoner is referred to a “provider” for further treatment. The “provider” is often a Nurse Practitioner. 1 On January 13, 2021, Plaintiff submitted another HNR stating his testicular pain 2 was growing in severity. (Id. at 200.) He was seen by Nurse Tanisha Buckner the 3 following day and reported a pain level of 7-8 out of 10. (Id. at 191.) Nurse Buckner stated 4 she “educated” Plaintiff on the “HNR process” and instructed him to “contact medical if 5 any new concerns.” (Id. at 197.) 6 On January 27, 2021, Plaintiff saw Karanja-Adams and reported he was 7 experiencing pain that increased when he lay flat. (Id. at 52.) Plaintiff denied dysuria, 8 hematuria, hesitancy, urgency, frequency, or penile discharge, and exhibited no distention, 9 guarding, rebound, or rigidity.4 (Id.) Karanja-Adams discussed Plaintiff’s upcoming 10 ultrasounds and instructed him to continue with his current treatment regimen and to return 11 to the clinic if he experienced increased testicular pain, discoloration, dysuria, hematuria, 12 or increased abdominal pain. (Id. at 54.) 13 On February 14, 2021, Plaintiff submitted another HNR stating his testicular pain 14 had increased and he was trying to “be patient” but “also need[ed] to document the urgency 15 of [his] issue.” (Id. at 65.) The following day, Plaintiff was seen by Defendant Nurse 16 Graciano, who noted Plaintiff reported “worsening intermittent L[eft] groin pain” that 17 ranged from a 4-10 out of 10, was radiating to his left testicle, and was not being effectively 18 treated with ibuprofen. (Id. at 56.) Graciano referred Plaintiff to a “provider for pain 19 management.” (Id. at 60.) 20 On February 24, 2021, Plaintiff was seen again by Karanja-Adams. (Id. at 66.) 21 Karanja-Adams’s notes indicate Plaintiff reported “[w]orsening testicular pain” and 22 “testicular pain/discomfort” but Plaintiff “denied dysuria, hematuria, frequency, urgency 23 or worsening testicular pain.” (Id. at 66-67.) Karanja-Adams discussed with Plaintiff his 24 upcoming ultrasounds. (Id. at 68.) 25 26 27 4 According to the National Institute of Health’s MedlinePlus website, dysuria is a term for painful urination and hematuria is a term for blood in the urine. See 28 https://medlineplus.gov/ency/article/003145.htm (last visited June 17, 2021); https://medlineplus.gov/ency/article/003138.htm (last visited June 17, 2021). 1 Plaintiff had a “scrotal ultrasound” on March 3, 2021. (Doc. 31-2 at 50-51.) The 2 complete summary of that ultrasound was: Ultrasound Scrotum and Contents FINDINGS: Scrotal ultrasound: The 3 RIGHT testicle measures 12.6 x 2.1 x 3.0 cm. The testicle shows normal 4 echotexture without mass or abnormal color flow. The RIGHT epididymis shows a small cyst measuring 2 mm. The LEFT testicle measures 3.4 x 2.5 5 x 1.6 cm. The LEFT testicle shows normal echotexture without mass or 6 abnormal color flow. The LEFT epididymis shows a small cyst measuring 3 mm. Smallright-sided [sic] hydrocele seen. No significant varicoceles. No 7 significant hernia. CONCLUSION: Small bilateral epididymal cysts. A 8 small RIGHT hydrocele. 9 By way of comparison, the average size of a testicle is 4 x 3 x 2 cm.5 Thus, Plaintiff 10 believes the ultrasound findings were obviously incorrect in that the ultrasound indicated 11 Plaintiff’s right testicle was very large. In fact, as Plaintiff explained at the evidentiary 12 hearing, a finding that his right testicle was 12.6 x 2.1 x 3.0 cm is roughly equivalent to a 13 finding that Plaintiff’s right testicle was the size “of a hot dog.” Plaintiff represented that 14 at the time of the ultrasound, through the present, his right testicle has never been the size 15 of a hot dog. Notwithstanding the putative size of Plaintiff’s right testicle, Karanja-Adams 16 concluded the ultrasound “was negative” and did not “show anything significant.” 17 The record shows the ultrasound was limited to Plaintiff’s scrotum. In a note the 18 same day as the ultrasound, Karanja-Adams recorded the pelvic ultrasound had been 19 “Cancelled. No clinical indication at this time.” Despite this evidence, at the evidentiary 20 hearing defense counsel argued the ultrasound was not limited to the scrotum. Defense 21 counsel represented the ultrasound “included the groin.” Thus, according to defense 22 counsel, the ultrasound covered “[b]oth right and left testicles and his groin area above 23 that.” Defense counsel did not offer any evidence in support of this position nor did counsel 24 explain why Karanja-Adams specifically noted the pelvic ultrasound had been cancelled. 25 Karanja-Adams discussed the ultrasound findings with Plaintiff on March 11, 2021. 26 (Id. at 101, 103.) According to Karanja-Adams’ notes, Plaintiff denied worsening pain or 27 28 5 https://www.healthline.com/health/mens-health/average-testicle-size (last visited June 30, 2021). 1 any bladder or bowel dysfunction, stating, “[I]t’s the same pain I just wish I had an answer.” 2 (Id. at 101.) Karanja-Adams’ notes from that encounter state, in relevant part: 3 *Reviewed [ultrasound] 3/3/21 – Small bilateral epidydimal cysts. A small 4 right hydrocele *Will request Urology consult as pt. w/ persistent pain and discomfort 5 *Pt advised to return to clinic if w/ signs of incarceration or torsion as 6 discussed. *HNR as needed 7 8 (Id. at 103-104) (emphasis added.) Karanja-Adams subsequently signed a form attesting 9 “I am recommending an Outside Consultation for the following: urology.” (Id. at 107.) 10 Plaintiff also signed that form, indicating he would attend a urology consultation if 11 approved. (Id. at 107.) 12 The record does not disclose what occurred after Karanja-Adams executed the form 13 recommending a urology consult. But according to Karanja-Adams’ statements at the 14 evidentiary hearing, she did additional research and spoke with the “site medical director” 15 regarding the need for a urology consult given the ultrasound’s findings. Karanja-Adams 16 then claims to have decided, on her own, that a urology consult was not needed. Therefore, 17 on March 31, 2021, Karanja-Adams noted in an addendum to her notes for March 11, 2021 18 “Urology consult r/t small epidydimal cyst not necessary at this time as pt. has no bladder 19 dysfunction. Will continue to monitor [every six months] or when pt. submits HNR. Next 20 appt on 4/5/21.” (Id. at 104-105.) 21 At the evidentiary hearing defense counsel argued there was no evidence Karanja- 22 Adams had ever stated she “will” seek a urology consultation. Defense counsel’s 23 representations are directly contradicted by the record as set forth above. According to 24 counsel, Karanja-Adams merely noted a urology consult “might be . . . something she’d 25 consider” but “once she looked closer at it did some more research and looked at all of the 26 other test results, . . . she determined it wasn’t necessary.” That is incorrect. According to 27 the medical notes, Karanja-Adams stated “Will request Urology consult.” Karanja-Adams 28 also signed a form stating “I am recommending an Outside Consultation for the following: 1 urology.” It is difficult to see how counsel could, in good faith, represent Karanja-Adams 2 had never determined a urology consultation was merited.6 Cf. Fed. R. Civ. P. 11. 3 In any event, on April 5, 2021, Plaintiff saw Karanja-Adams again. (Id. at 108.) At 4 that time he denied dysuria, hematuria, hesitancy, retention, urgency, or swelling. (Id.) 5 Karanja-Adams reviewed the need for a urology consultation with Plaintiff and informed 6 him the consultation was “not necessary at this time as [Plaintiff] has no bladder 7 dysfunction.” (Id. at 110.) Karanja-Adams indicated that she would order a scrotal strap 8 for Plaintiff. (Id.) 9 Plaintiff was seen by Nurse Maurice Owiti on April 7, 2021, in response to an April 10 6, 2021 HNR. (Id. at 112, 121.) At that time, Plaintiff complained of “sharp and not 11 constant” abdominal pain ranging from a 2-5 out of 10 but denied “any pain radiating to 12 the right testicle.” (Id.) Owiti noted the absence of any visible bulging and referred 13 Plaintiff to a provider “for further evaluation.” (Id. at 113, 116.) 14 On April 12, 2021, Plaintiff submitted another HNR reporting that his left testicle 15 was “80% smaller” than it was in January 2021 and he was once more experiencing pain 16 in his groin area and “strangulation” in his lower abdomen. (Id. at 131.) Plaintiff was 17 evaluated by a nurse who recorded Plaintiff had been “referred to provider on 4/7/21 for 18 this issue.” (Id. at 126.) Thus, no additional action was taken at that time. On April 14, 19 2021, Karajana-Adams reviewed Plaintiff’s records and, without seeing him, submitted a 20 request for a scrotal strap. (Id. at 136.) Plaintiff received the scrotal strap shortly thereafter. 21 (Id. at 137.) 22 Plaintiff was seen again by Karanja-Adams on April 20, 2021. (Id. at 141.) He 23 reported a “new issue” on his right side, stating “I feel like a pain, you can’t feel it, it’s not 24 bulging like right now but sometimes, it’s not painful but it’s there.” (Id.) Karanja-Adams 25 noted no obvious bulge, hernia, or mass, and told Plaintiff to continue his current treatment 26 27 28 6 The Court inquired of counsel what records she was looking at and did not receive an adequate answer. 1 regimen and return to the clinic if he experienced “increase[d] pain or obvious mass.” (Id. 2 at 143.) 3 On April 24, 2021, Plaintiff submitted an HNR seeking a renewal of his ibuprofen 4 prescription. (Id. at 203.) The following day, he submitted an HNR asking to speak to a 5 provider regarding a potential urology consultation and stating that he would pay for the 6 consult and transportation. (Id. at 172.) Karanja-Adams reviewed these requests on April 7 25, 2021, reordered Plaintiff’s ibuprofen prescription, and entered an order for four 8 different blood panels. (Id. at 149-151, 155.) Two of these panels—the prostate specific 9 antigen test and the urinalysis—yielded normal results. (Id. at 165-69.) It is not clear 10 whether the results from the third and fourth were normal. (Id. at 157-162.) 11 Plaintiff filed another HNR on April 28, 2021, stating his testicle was “still 80% 12 smaller than it was in January” and was still causing him pain that was “very severe while 13 laying down.” (Id. at 182.) Plaintiff asked to be seen to discuss a “possible treatment 14 plan.” (Id.) Plaintiff was seen by Nurse Graciano the following day. (Id. at 173.) He 15 reported pain levels of 6-10 out of 10 and stated the ibuprofen he was taking did not relieve 16 his pain. (Id.) Plaintiff denied swelling, discharge, or issues with urination. Graciano 17 referred him to a “provider for persistent pain.” (Id. at 173, 177.) 18 Plaintiff was seen by Karanja-Adams on May 12, 2021, and reported veins 19 protruding from his groin in an area above where the testicular ultrasound had been 20 performed. (Id. at 183.) He denied dysuria, frequency, hesitancy, retention, or hematuria, 21 and Karanja-Adams advised him to continue with his current treatment regimen and 22 ordered an alpha-fetoprotein tumor-marker test. (Id. at 183, 185.) That test was completed 23 and yielded normal results. (Id. at 189-90.) 24 Plaintiff does not dispute most of this history, but he describes numerous statements 25 by medical providers that provide additional context. For example, Plaintiff states that 26 when he was examined in January 2021, Nurse Pontius was “shocked” by the size reduction 27 in his testicle and immediately referred him to a provider. (Doc. 5 at 5.) When Karanja- 28 Adams subsequently examined Plaintiff, she allegedly agreed something was wrong. (Id.) 1 But when Plaintiff was seen a few weeks later, Karanja-Adams told him he was “not a 2 priority” for ultrasound. (Id.) 3 In April 2021, Karanja-Adams allegedly told Plaintiff people could live years with 4 a hernia, and that his condition was “no big deal.” (Id.) When Plaintiff asked Karanja- 5 Adams if she was diagnosing him with a hernia, she replied “no.” (Id.) She told Plaintiff 6 that he could address his medical issues when he got out of prison and that she would 7 monitor him every three to six months. (Id.) Later in April, a nurse told Plaintiff “When 8 reading your medical chart, I thought you were full of shit, but I actually believe you.” 9 (Id.) The nurse also told Plaintiff, “You need to see urologist,” and instructed Plaintiff to 10 tell the provider everything he had told the nurse. (Id.) Plaintiff replied, “[T]rust me, I 11 have.” (Id.) And when Plaintiff was seen by two nurses on April 28, 2021, the nurses 12 “looked at each other in shock and said nothing.” (Id. at 12.) 13 Plaintiff filed this suit in April 2021 and, in early May he filed an amended 14 complaint along with his motion seeking a preliminary injunction. The Court concluded 15 Plaintiff had stated a claim for “denial of constitutionally adequate medical care” against 16 Karanja-Adams, Graciano, and numerous supervisory personnel (“Defendants”). (Doc. 9). 17 Defendants were ordered to respond to the complaint and to respond to the request for a 18 preliminary injunction. According to Defendants’ opposition to the motion for a 19 preliminary injunction, Plaintiff “simply disagrees with the providers’ medical 20 determinations” and he is not entitled to injunctive relief. (Doc. 31 at 2). 21 At the evidentiary hearing, the Court asked Karanja-Adams for her diagnosis of 22 Plaintiff. Karanja-Adams responded So I’m not quite sure because I do not – actually I do not know because I 23 haven’t found anything. There’s no finding whatsoever that could explain 24 his consistent complaint of his pain. I really have found nothing.7 25 26 7 Despite this acknowledgment of Plaintiff’s “consistent” complaints of pain, defense counsel argued there are “inconsistencies in what [Plaintiff is] saying.” The 27 “inconsistencies” appear to be that Plaintiff has reported varying degrees of pain during the past six months. But it is not “inconsistent” for Plaintiff to report pain that varies 28 throughout the day, particularly when he explained the level 10 pain occurs when he lies on his back to sleep. 1 When asked why Plaintiff’s testicle suddenly shrunk in January 2021, Karanja-Adams 2 stated “I can’t explain. I can’t explain why he has the pain. I cannot explain that.” The 3 Court then had the following crucial exchange with Karanja-Adams: Court: So other than you don’t know if he had [a shrunken testicle] before 4 and he never told you he had it before, you have – you have no reason to 5 explain, [no] medical reason, why he had a sudden shrinking of one of his testicles? 6 Karanja-Adams: I would defer that to a specialist to say that. I don’t think 7 I can confidently respond to that. 8 To reiterate, the undisputed facts are that Plaintiff has experienced a sudden 9 shrinking of one of his testicles and has been in significant pain for approximately six 10 months. Karanja-Adams does not know why Plaintiff is in pain nor does Karanja-Adams 11 know why such a shrinking would occur. According to Karanja-Adams, only a “specialist” 12 would be able to assess this situation. Yet Karanja-Adams and defense counsel remain 13 adamant Plaintiff is not entitled to see such a specialist. The Court sometimes has difficult 14 decisions to make, particularly in prisoner’s allegations of mistreatment. This is not one. 15 ANALYSIS 16 “A preliminary injunction is an extraordinary and drastic remedy, one that should 17 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 18 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). A plaintiff seeking a preliminary 19 injunction must show (1) he is likely to succeed on the merits, (2) he is likely to suffer 20 irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) 21 an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 20 (2008). And because Plaintiff is seeking injunctive relief requiring Defendants take 23 “affirmative action,” he “must establish that the law and facts clearly favor [his] position.” 24 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Finally, the Prison Litigation 25 Reform Act requires injunctive relief be narrowly drawn and be the least intrusive means 26 necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State 27 of Cal., 220 F.3d 987, 999 (9th Cir. 2000). 28 I. Likelihood of Success on the Merits 1 To prevail on an Eighth Amendment medical care claim,8 a prisoner must 2 demonstrate that a defendant acted with “deliberate indifference to serious medical needs.” 3 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 4 104 (1976)). There are two prongs to the deliberate-indifference analysis: an objective 5 prong and a subjective prong. First, as to the objective prong, a prisoner must show a 6 “serious medical need.” Jett, 439 F.3d at 1096 (citations omitted). A “‘serious’ medical 7 need exists if the failure to treat a prisoner’s condition could result in further significant 8 injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 9 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S.C. at 104), overruled on other grounds 10 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 11 Second, a prisoner must show that the defendant’s response to that need was 12 deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference 13 if he “knows of and disregards an excessive risk to inmate health or safety; to satisfy the 14 knowledge component, the official must both be aware of facts from which the inference 15 could be drawn that a substantial risk of serious harm exists, and he must also draw the 16 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 17 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 18 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 19 Cir. 2002) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992)), or when they 20 fail to respond to a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. 21 Deliberate indifference is a higher standard than negligence or lack of ordinary due care 22 for the prisoner’ s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 23 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corrs., 220 24 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 25 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical 26 malpractice” do not support a claim under § 1983). “A difference of opinion does not 27 28 8 Plaintiff does not argue that he is likely to succeed on the merits of his First Amendment retaliation claim. 1 amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 2 891 F.2d 240, 242 (9th Cir. 1989). The action must rise to a level of “unnecessary and 3 wanton infliction of pain.” Estelle, 429 U.S. at 105. 4 Plaintiff has demonstrated a strong likelihood of success on his Eighth Amendment 5 medical claim. Plaintiff previously required surgical repair of a recurrent hernia and has 6 been seeking treatment for a shrunken testicle as well as groin and abdominal pain for 7 approximately six months. While Defendants claim Plaintiff has been provided care 8 consistent with his “current medical diagnosis,” it is not clear what “diagnosis” Defendants 9 are referencing. The only diagnosis Plaintiff has received since 2019 was a diagnosis of 10 “other chronic pain” made sixteen months before he reported a decrease in testicle size and 11 eighteen months before his ultrasound was performed. (Doc. 31-2 at 183-84.) In addition, 12 Defendants’ own records show that Plaintiff was denied access to two different diagnostic 13 tools initially recommended by Karanja-Adams: a pelvic/lower abdominal ultrasound and 14 a urology consultation. Although Defendants attempt to portray these reversals as reasoned 15 determinations regarding a lack of medical necessity based on Karanja-Adams reevaluating 16 Plaintiff’s condition, their characterization is not supported by the record. 17 Defendants’ explanation for Karanja-Adams’s reconsideration of the pelvic/lower 18 abdominal ultrasound is baseless. Defendants assert “[i]t was later determined”—by whom 19 they do not say—“that based on the presentation and exam that [sic] only the testicular 20 ultrasound needed to take place.”9 (Doc. 31 at 4.) Their failure to attribute this 21 determination is telling, as the evidence cited does not reflect any basis for the cancelation 22 of Plaintiff’s pelvic ultrasound. (Doc. 31-2 at 41-51.) The only relevant evidence, a March 23 3, 2021 “Consultation Request Action” (Doc. 31-2 at 40), is too ambiguous to conclude 24 Karanja-Adams was even responsible for this decision, much less that she made this 25 decision based on further presentation and examination. That document merely indicates 26 Karanja-Adams canceled the consultation request on March 3, 2021, noting, “No clinical 27 9 At the evidentiary hearing, defense counsel appeared to backtrack from this 28 position by arguing the pelvic ultrasound did occur. Defense counsel’s constantly shifting positions makes it difficult to determine what, in fact, they are arguing. 1 indication at this time.” There is no attribution of her decision to information gleaned from 2 further evaluation or diagnostic testing. And Defendants offer no other evidence to explain 3 why Karanja-Adams would have canceled this test months after she determined it was 4 necessary and obtained Plaintiff’s written commitment to attend such a test “if approved.” 5 (Doc. 31-2 at 32.) The unexplained cancelation of Plaintiff’s pelvic/lower abdominal 6 ultrasound months after Karanja-Adams determined it was warranted is significant 7 evidence of deliberate indifference to Plaintiff’s medical needs. 8 Defendants’ explanation regarding Karanja-Adams’s evolving view on a urology 9 consultation is equally unpersuasive. Defendants contend Karanja-Adams “planned to 10 inquire about a urology consult,” but the consult “was determined ultimately not to be 11 necessary” because “there was only a small cyst” and “no bladder dysfunction[,] . . . 12 masses, etc.” (Doc. 31 at 5.) This was also the explanation offered at the evidentiary 13 hearing, although Karanja-Adams’ testimony was not entirely clear on who she consulted 14 and why she changed her opinion. In any event, Defendants’ attempt to portray Karanja- 15 Adams’ initial recommendation as tentative runs contrary to the language and conduct 16 evidenced in the record. 17 As outlined earlier, Karanja-Adams stated in her notes, “Will request Urology 18 consult” (Doc. 31-2 at 103 (emphasis added.)) Karanja-Adams also signed a form stating 19 she was recommending a urology consult and obtained Plaintiff’s written commitment to 20 attend a urology consultation if approved. (Doc. 31-2 at 107.) As for the statement in the 21 record that lack of bladder dysfunction meant no urology consultation was necessary, that 22 statement does not hold up when examined alongside other available evidence. 23 Specifically, the records demonstrate Karanja-Adams concluded a urology consultation 24 was necessary based on Plaintiff’s “persistent pain and discomfort,” after he had repeatedly 25 denied experiencing bladder dysfunction. (Doc. 31-2 at 12, 22, 52.) In fact, Plaintiff 26 “denie[d] bladder or bowel dysfunction” at the very same appointment in which Karanja- 27 Adams noted she would request a urology consultation. (Doc. 31-2 at 101-103.) If bladder 28 dysfunction were so critical to Karanja-Adams’s determination, there is no explanation 1 why it did not matter until weeks after she requested a urology consult. Accordingly, the 2 Court concludes Plaintiff has presented a strong likelihood of success on the merits of his 3 Eighth Amendment claim. 4 Defendants cannot overcome this conclusion with Dr. Orm’s conclusory opinion 5 that Plaintiff has not been denied medically necessary care, that no Centurion nurse or 6 medical provider “identified anything critically abnormal . . . that would constitute a 7 medical crisis or emergency,” and that a urology consultation is not medically indicated 8 “[b]ased on imaging and exams.” (Doc. 31-1 at 2-3.) Dr. Orm is an employee of Defendant 9 Centurion, not an independent expert. And, as Plaintiff notes in his Reply, she does not 10 purport to have examined Plaintiff personally or spoken with his providers; rather, her 11 opinion is based solely on her review of his medical records. Dr. Orm’s failure to identify 12 the specific bases for her conclusion is therefore critical, as is her failure to reconcile that 13 conclusion with Karanja-Adams’s initial decision that Plaintiff’s persistent unexplained 14 pain warranted a consultation. In light of these factors, the Court finds Dr. Orm’s opinion 15 insufficient to negate the likelihood of success on the merits of Plaintiff’s Eighth 16 Amendment claim.10 Cf. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 17 (concluding, in the social-security context, that a contrary opinion of a non-examining 18 medical expert only warrants rejection of treating or examining physician’s opinion if it is 19 consistent with other evidence in the record). 20 II. Irreparable Harm 21 Plaintiff has shown the deprivation of proper medical care is likely to cause him 22 irreparable harm in the form of continuing physical pain. See Rodde v. Bonta, 357 F.3d 23 988, 999 (9th Cir. 2004) (irreparable harm includes delayed and/or complete lack of 24 necessary treatment, and increased pain); Von Colln v. Cty. of Ventura, 189 F.R.D. 583, 25 598 (C.D. Cal. 1989) (“Defendants do not argue that pain and suffering is 26 not irreparable harm, nor could they”). While Defendants attempt to minimize Plaintiff’s 27 10 In light of the Court’s findings, Defendants’ argument regarding mootness is 28 untenable. Plaintiff’s request for a urology consultation and recommended treatment cannot have been mooted by an alternative treatment plan that has yet to yield a diagnosis. 1 pain, emphasizing his early characterizations of it as “dull” and “achy,” they cannot 2 credibly argue he is unlikely to suffer pain in the future when their own evidence 3 demonstrates he has been reporting pain on a regular basis since January 8, 2021. 4 Moreover, many of Defendants’ assertions regarding Plaintiff’s pain level are belied 5 by the evidence, which demonstrates that while Plaintiff’s pain level may fluctuate, it has 6 trended higher. And any suggestion that Plaintiff is exaggerating his pain is difficult to 7 square with Karanja-Adams’s recent decision to provide him a scrotal strap, evidence that 8 Plaintiff has attempted to relieve his pain through other methods, like yoga and adaptive 9 behavior, and that Plaintiff has offered to bear the cost of a urology consultation. There 10 are no indications Plaintiff’s pain is trivial. 11 Finally, while Defendants make much of the fact that Plaintiff declined pain 12 medication when it was offered to him on January 11, 2021, his pain has increased since 13 that time. In addition, Plaintiff’s verified allegations, and his statements at the evidentiary 14 hearing, demonstrate his desire for a diagnosis compelled him to avoid medication that 15 would mask his symptoms.11 Plaintiff has demonstrated a sufficient likelihood of 16 irreparable harm to warrant the requested injunctive relief. 17 III. Balance of Hardships 18 In arguing the balance of hardships, Defendants largely repeat the arguments they 19 mounted in opposition to the merits of Plaintiff’s claim. They also contend that they would 20 be forced to overhaul their policies in response to a grant of injunctive relief, potentially 21 resulting in “security and safety breaches and inmate unrest.” 22 Defendants’ argument regarding the merits of Plaintiff’s claim has already been 23 rejected. And in the absence of any explanation as to why the requested relief necessitates 24 a wide-scale policy overhaul or how that overhaul could lead to a security lapse, the Court 25 finds the second argument unpersuasive. See Figueroa v. Centurion of Arizona, LLC, No. 26 CV 20-00064-TUC-RM, 2020 WL 8673996, at *3 (D. Ariz. Nov. 4, 2020) (“The Court is 27 28 11 At the hearing, Karanja-Adams agreed pain medications could mask potential issues. 1 unconvinced by Defendants’ general argument, without citation to any procedure or policy, 2 that ‘restructuring the procedures and policies for one single inmate could result in security 3 and safety breaches [and] inmate unrest and staffing issues.’”). Plaintiff has credibly 4 alleged ongoing, increasing pain, the source of which Defendants are unwilling to identify. 5 The balance of hardships tips sharply in Plaintiff’s favor. See Rodde, 357 F.3d at 999 6 (“[f]aced with such a conflict between financial concerns and preventable human suffering, 7 we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ 8 favor”) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983). 9 IV. Public Interest 10 The prevention of constitutional violations is always in the public 11 interest. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). Moreover, “the public 12 has a strong interest in the provision of constitutionally-adequate health care to 13 prisoners.” McNearney v. Wash. Dep’t of Corr., No. C11–5930 RBL/KLS, 2012 WL 14 3545267, at *16 (quoting Flynn v. Doyle, 630 F. Supp. 2d 987, 993 (E.D. Wis. 15 2009)); see Farnam v. Walker, 593 F. Supp. 2d 1000, 1017 (C.D. Ill. 2009) (holding that 16 the public had an interest in the maintenance of prisoner’s health during the pendency of 17 the lawsuit). 18 Although Defendants claim the provision of unnecessary medical care is not in the 19 public interest, the Court has already found Plaintiff is likely to prevail on his claim 20 regarding the constitutional adequacy of his care. Accordingly, the last Winter element 21 favors Plaintiff. 22 V. Narrowly Tailored Relief 23 The Prison Litigation Reform Act (“PLRA”) requires any injunctive relief to be 24 narrowly drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. 25 § 3626(a)(2). The Court must also be mindful of the impact on prison operations and 26 security. Id. 27 Plaintiff requests an injunction requiring Defendants to provide him a consultation 28 with a urologist and provide treatment in accordance with the plan developed by that 1| doctor. The Court finds the least intrusive means is to require a urology consult. The parties will then be required to provide the urologist’s report and proposed plan of care to the Court for the Court to determine whether that plan must be implemented or if other 4| remedies are appropriate. 5 VI. Security 6 Defendants do not address the amount of security or provide any evidentiary support regarding the need for a bond. “The court has discretion to dispense with the security 8 | requirement” in appropriate cases. Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 9} 1126 (9th Cir. 2005) (quoting Cal. ex rel. Van De Kamp v. Tahoe Reg’! Planning Agency, 10| 766 F.2d 1319, 1325 (9th Cir.1985)). Here, no bond is appropriate. ITIS ORDERED: 12 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 13 | for Injunctive Relief. 14 (2) Plaintiff’s Motion for Injunctive Relief (Doc. 8) is granted as follows: 15 | Defendants must provide Plaintiff with a urology consultation within 21 days of this Order. 17 (3) Defendants must file a notice of compliance and status report with the Court 18 | within 7 days of Plaintiff's urology consultation. 19 Dated this Ist day of July, 2021. 20 fo - 21 ‘ — . 22 Senior United States District Judge 24 25 26 27 28