Atwood v. Days ( 2021 )

1 MGD 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Frank Jarvis Atwood, No. CV 20-00623-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Panann Days, et al., 13 Defendants. 14 15 Plaintiff Frank Jarvis Atwood, who is currently confined by the Arizona Department 16 of Corrections (ADC) in the Arizona State Prison Complex (ASPC)-Eyman, filed this civil 17 rights action pursuant to 42 U.S.C. § 1983.1 Before the Court is Plaintiff’s Motion for 18 Temporary Restraining Order and Preliminary Injunction regarding his medical care. 19 (Doc. 109.) The Court held a hearing on the Motion on October 29, 2021 and permitted 20 the Parties to file amended proposed findings of fact and conclusions of law.2 The Court’s 21 findings of fact and conclusions of law based on the Parties’ briefing and the hearing are 22 set forth herein. 23 . . . . 24 25 1 Plaintiff filed the original Complaint pro se but is now represented by counsel. 26 2 Plaintiff and Defendants Centurion and Olmstead (“Centurion Defendants”) had filed proposed Findings of Fact and Conclusions of Law prior to the hearing. (Docs. 147, 27 151.) After the hearing, only Plaintiff filed amended proposed Findings of Fact and Conclusions of Law as well as a proposed order (Doc. 166); Centurion Defendants filed an 28 Objection to Plaintiff’s Proposed Order (Doc. 171). Defendants Days, Shinn, Scott, Lopez, and Arnold (“ADC Defendants”) did not file any proposed Findings of Fact and Conclusions of Law either before or after the hearing. 1 I. Findings of Fact 2 Plaintiff has been incarcerated by ADC since 1987. (Doc. 147 ¶ 1.) Philip A. 3 Davidson, MD, a board-certified orthopedic surgeon, has evaluated Plaintiff 4 telephonically, reviewed Plaintiff’s medical records related to his current condition, and 5 testified at the hearing. Based on his review of Plaintiff’s January 8, 2021 MRI of the 6 lumber and cervical spine, Dr. Davidson concluded that Plaintiff has “severe cervical 7 spondylosis with severe radicular symptoms to include, of great importance, C5-C6 8 myelomalacia. He has apparently overt radicular symptomatology as well as radiating 9 pain, weakness, and motor dysfunction.” (Doc. 109 at 28-29 ¶ 37.) Plaintiff’s lumbar 10 spine is his most painful condition, and “[his] neural symptomatology has contributed to 11 the weakness that is limiting his ability to transfer and position, let alone ambulate. In 12 addition, the neural compression and degenerative spondylosis are highly painful, most 13 acutely when prone or in an erect seated posture.” (Id. at 29 ¶ 38.) 14 Plaintiff’s back pain began around 1990, and he has been treated over the past 30 15 years with oral medications. (Id. at 21 ¶ 14.). Plaintiff began using a wheelchair in 2015 16 and at that time he was classified an ADA (Americans with Disabilities Act) patient. (Doc. 17 167 (Hearing Tr.) at 117.) From 2011 to September 2020, Plaintiff was prescribed 18 Tramadol, which effectively treated his pain. (Doc. 109 at 23 ¶ 20.) Plaintiff has tried 19 numerous other medications, such as Cymbalta, for his pain, but they have either failed or 20 Plaintiff had negative reactions to them. (Doc. 167 at 61, 121.) 21 In September 2020, Defendant Nurse Practitioner Olmstead discontinued Plaintiff’s 22 Tramadol prescription, and from October 2020 to the present, Plaintiff has been prescribed 23 a lidocaine patch and Tylenol, which have provided “no appreciable pain relief.” (Doc. 24 109 at 23 ¶ 20.) Olmstead asserts that “the medical decision has been made, after repeat 25 examinations and other testing, that [Plaintiff] needs to be weaned off of narcotics, 26 including Tramadol, due to poor tolerance/side effects and that had or have been, at times, 27 a part of his prescription medication regimen, and that there is no medical indication to 28 continue this medication.” (Doc. 114-6 at 2 ¶ 4.) According to Olmstead, “[n]arcotics are 1 very powerful medications that should only be used in the appropriate case and for the 2 shortest duration needed, which is how they have been used.” (Id.) Olmstead testified that 3 Centurion’s medical director told her it was Centurion’s policy “that long-term opioids are 4 not prescribed unless a patient has cancer pain or they are in a hospice setting.” (Doc. 167 5 at 169.) During the hearing, the Court asked Defendants to produce the policy. (Id. at 208- 6 209.) Following the hearing, Defendants notified the Court that “no formal written policy 7 exists,” and they submitted the declaration of Dr. Rodney Stewart, Centurion’s Site 8 Medical Director for ASPC-Eyman. (Doc. 165 at 1.) Dr. Stewart states that he has 9 implemented a policy “that patients are not to be prescribed opioids, such as tramadol, for 10 an extended or indefinite period of time unless that patient is suffering from cancer-related 11 illness or pain, terminal illness with pain, and other serious long-term disease implicating 12 severe pain symptoms.” (Doc. 165-1 at 1 ¶ 5.) 13 Plaintiff has not walked since 2017 and without Tramadol suffers 14 “incomprehensible pain every time he need[s] to transfer to bed, chair or wheelchair.” 15 (Doc. 109 at 22-23 ¶¶ 17, 19.) Plaintiff can only sleep sporadically because he cannot lie 16 flat and must sit in his wheelchair or partially recline in bed to minimize the severity of 17 constant pain. (Id. at 24 ¶ 23.) Plaintiff’s pain interferes with nearly all activities of daily 18 living. (Doc. 167 at 27-28.) Without Tramadol, Plaintiff’s pain is severe at 9 or 10 out of 19 10, his ability to transfer to and from his wheelchair is decreased, and his sleep is even 20 more compromised. (Doc. 109 at 27 ¶ 34.) With Tramadol, Plaintiff’s pain decreases to a 21 5 or 6, a moderate and manageable pain level. (Doc. 167 at 112, 121.) 22 Plaintiff has a recent history of falling, secondary to weakness in his legs, including 23 falls in November 2020 and March 2021 when he was not taking Tramadol. (Doc. 109 at 24 24 ¶ 22.) Plaintiff testified he has fallen a half dozen times since 2016, and he attributes 25 his falls to his medical condition and not Tramadol because the falls occur when he tries to 26 move, and he feels a twinge of pain and weakness and collapses. (Doc. 167 at 115.) Dr. 27 Davidson testified that Plaintiff’s falls are not necessarily attributable to Tramadol, and the 28 1 falls indicate to him that Plaintiff needs more assistance with transfers and needs to be in a 2 safer environment. (Id. at 49.) 3 In January 2021, Plaintiff suffered an extreme case of diarrhea, which was 4 eventually diagnosed as a staph infection; the infection intensified Plaintiff’s back pain and 5 caused spasms, and he was unable to leave his bed or roll onto his side for nearly a week. 6 (Doc. 109 at 25 ¶¶ 25-26.) To accept meals and medication, Plaintiff crawled or slid across 7 his cell’s urine-covered and feces-smeared floor. (Id. ¶ 25.) Plaintiff received injections 8 of Toradol and a corticosteroid injection, which provided some pain relief for a couple of 9 weeks. (Doc. 109 at 21 ¶ 15.) 10 Plaintiff received Tramadol when he was hospitalized in April 2021 and afterwards 11 in the infirmary, but when he was moved back to the Browning Unit in June 2021, NP 12 Olmstead reduced the dose of Tramadol to once daily with the intention of weaning 13 Plaintiff off Tramadol completely. (Doc. 109 at 26 ¶¶ 28-33.) 14 On April 6, 2021, Olmstead submitted an urgent request for a neurosurgery 15 consultation; Olmstead noted that she reviewed the case with Dr. Young, who asked that a 16 consult be entered with a neurosurgeon to see if Plaintiff was a candidate for epidural 17 injections. (Doc. 114-1 at 5-6.) On June 25, 2021, Plaintiff had an appointment with 18 neurosurgeon Dr. Feiz-Erfan at Valleywise Health, but Dr. Feiz-Erfan first wanted an 19 updated MRI and a follow-up appointment in 4 to 6 weeks. (Doc. 114-6 at 2 ¶ 7; Doc. 20 114-4 at 36-39.) On June 30, 2021, Olmstead submitted a routine consultation request for 21 an MRI of the cervical spine and for a follow-up appointment with the neurosurgeon once 22 the MRI is completed. (Doc. 114-16 at 2 ¶ 7; Doc. 114-5 at 11.) The MRI was authorized, 23 and Plaintiff had the cervical MRI on July 16, 2021. (Doc. 114-5 at 11.; Doc. 130-1 at 2.) 24 Plaintiff next saw Dr. Feiz-Erfan on July 30, 2021, and Dr. Feiz-Erfan noted that 25 Plaintiff’s chief complaint was neck and back pain, but Plaintiff was also febrile and short 26 of breath. (Doc. 132-1 at 15, 17.) Dr. Feiz-Erfan diagnosed Plaintiff with “status post 27 anterior fusion, cervical 5-6, for myelopathy done by me on 12/11/2018. New Diagnosis 28 is canal stenosis, lumbar 1-2; adjacent level disease, cervical spine.” (Id.) Dr. Feiz-Erfan’s 1 Plan of Care was “Epidural injection, lumbar 1-2. Physical therapy,” follow up in 3 2 months, and to go to the nearest emergency room for acute symptoms, noting that Plaintiff 3 “looks ashen and pale and appears sick acutely.” (Id.) Under “Patient Instructions,” the 4 doctor wrote, “Patient to have injections and PT and follow up in 6 weeks.3 (Id. at 19.) 5 Olmstead noted in an August 2, 2021 medical record that Plaintiff was admitted to 6 Valleywise Hospital on July 30 for urosepsis and had surgery for a new left stent placement 7 and cystoscopy. (Id. at 37.) Dr. Davidson testified that in Plaintiff’s case, spinal injections 8 would provide only temporary or transient relief, and injections could diminish the need 9 for Tramadol if repeated two to three times a year, but that it is likely they would only 10 provide partial relief and Plaintiff may still need Tramadol in addition.4 (Doc. 167 at 57.) 11 On August 2, 2021, Olmstead submitted a routine consultation request for epidural 12 lumbar injections. (Doc. 132-1 at 37.) As of the date of the hearing, October 29, 2021, 13 Plaintiff had not received his first epidural injection, but defense counsel asserted Plaintiff 14 would have an injection in the next two weeks. (Doc. 167 at 199.) After seeing Dr. Feiz- 15 Erfan, Plaintiff had four half-hour physical therapy sessions at the prison, but he testified 16 that the physical therapy ended up causing more discomfort than any benefit. (Id. at 119.) 17 In October 2021, Plaintiff was again in the infirmary and while there, a doctor 18 prescribed Tramadol for his pain on October 20, 2021, but Plaintiff did not receive 19 Tramadol until the night before the October 29, 2021 hearing. (Id. at 109.) Plaintiff 20 testified that a nurse told him he received Tramadol just before the hearing because “they 21 wanted to be able to say [Plaintiff] was on the medication again.” (Id. at 109-110.) 22 Dr. Davidson recommends without reservation that Plaintiff again be prescribed 23 Tramadol given that trials of other medications have not worked and because other 24 narcotics that might help his pain could be more addictive and habit forming. (Id. at 60- 25 61.) Dr. Davidson stated a typical dose is 50 mg twice a daily, but the dose would have to 26 3 It is not clear from the record if Dr. Feiz-Erfan was planning one epidural injection 27 or a series of injections because he used the singular “injection” in the “Plan of Care” and plural “injections” in the “Patient Instructions.” 28 4 Dr. Feiz-Erfan did not testify. 1 be adjusted based on what Plaintiff has taken in the past and on the effectiveness of the 2 spinal injections. (Id. at 58.) Dr. Davidson’s professional opinion is that “it is imperative 3 and humane that additional, palliative measures also be implemented on this patient’s 4 behalf immediately. These include lumbar and cervical orthosis, along with a residency 5 setting where immediate hands-on wheelchair transferring assistance is continually 6 available.” (Doc. 109 at 30 ¶ 44.) Defendants’ expert, Dr. Thomas Fowlkes, is board- 7 certified in emergency medicine and is currently the medical director at a county detention 8 facility in Oxford, Mississippi. (Doc. 167 at 64.) Dr. Fowlkes reviewed Plaintiff’s medical 9 records and agreed there was no evidence Plaintiff was addicted to Tramadol, that Plaintiff 10 was diverting or abusing Tramadol, or that his cognition suffered because of Tramadol. 11 (Doc. 167 at 80-85.) 12 II. Preliminary Injunction Standard 13 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 14 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 15 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 16 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 17 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 18 never awarded as of right”). “A plaintiff seeking a preliminary injunction must show that 19 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 20 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 21 public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). 22 The movant “has the burden of proof on each element of the test.” See Envtl. Council of 23 Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). 24 Where a movant seeks a mandatory injunction, rather than a prohibitory injunction, 25 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 26 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 27 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872F.3d 976, 999 (9th Cir. 2017) 28 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 1 (9th Cir. 2009)). “A mandatory injunction orders a responsible party to take action,” while 2 “a prohibitory injunction prohibits a party from taking action and preserves the status quo 3 pending a determination of the action on the merits.” Marlyn Nutraceuticals, 571 F.3d at 4 879 (internal quotation marks omitted). “The ‘status quo’ refers to the legally relevant 5 relationship between the parties before the controversy arose.” Arizona Dream Act 6 Coalition v. Brewer, 757 F.3d 1053, 1060-61 (9th Cir. 2014). 7 The Prison Litigation Reform Act imposes additional requirements on prisoner 8 litigants who seek preliminary injunctive relief against prison officials and requires that 9 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 10 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 11 999 (9th Cir. 2000). 12 “The urgency of obtaining a preliminary injunction necessitates a prompt 13 determination” and makes it difficult for a party to procure supporting evidence in a form 14 that would be admissible at trial. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th 15 Cir. 1984). As a result, “a preliminary injunction is customarily granted on the basis of 16 procedures that are less formal and evidence that is less complete than in a trial on the 17 merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). In its determination on 18 a motion for a preliminary injunction, “a court may properly consider evidence that would 19 otherwise be inadmissible at trial.” Cherokee Inc. v. Wilson Sporting Goods Co., No. CV 20 15-04023 BRO (Ex), 2015 WL 3930041, at *3 (C.D. Cal. June 25, 2015); see Johnson v. 21 Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (district court did not abuse its discretion 22 by considering “unverified client complaints” and the plaintiff’s counsel’s interested 23 declaration when it granted a preliminary injunction); Flynt Distrib. Co., 734 F.2d at 1394 24 (the district court has discretion to rely on hearsay statements when deciding whether to 25 issue a preliminary injunction). A court may also consider evidence or developments that 26 postdate the pleadings. Farmer v. Brennan, 511 U.S. 825, 846 (1994). 27 28 1 When evaluating the merits of a preliminary injunction motion, a court’s factual 2 findings and legal conclusions are not binding at trial on the merits. Univ. of Tex., 451 U.S. 3 at 395. 4 III. Conclusions of Law 5 Plaintiff seeks an order requiring Defendants to provide him (1) “the necessary pain 6 medication to treat his constant severe pain,” (2) “rehousing to a unit that has wheelchair 7 transferring assistance available at all times,” and (3) referral to an orthopedic surgeon “to 8 evaluate Plaintiff for possible surgical intervention to treat and improve his spinal 9 condition.” (Doc. 109 at 15.) Based on the hearing and Dr. Davidson’s recommendation, 10 it is clear Plaintiff is seeking a resumption of his previous Tramadol prescription and the 11 epidural injection(s) recommended by Dr. Feiz-Erfan. Because Plaintiff is not currently 12 prescribed Tramadol and or received epidural injections as of the hearing date, he is seeking 13 mandatory, rather than prohibitory, injunctive relief, with respect to his pain relief as well 14 as his requests to be rehoused in a different unit with wheelchair transfer assistance 15 available at all times and an evaluation by an orthopedic surgeon. 16 A. Pain Relief 17 1. Likelihood of Success on the Merits 18 To establish a likelihood of success on the merits of an Eighth Amendment medical 19 care claim, a prisoner must demonstrate “deliberate indifference to serious medical needs.” 20 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 21 104 (1976)). The prisoner must show (1) that his condition constitutes a “serious medical 22 need” and (2) that the defendant’s current response to that need is deliberately indifferent. 23 Jett, 439 F.3d at 1096; see Farmer v. Brennan, 511 U.S. 825, 845 (1994) (where a plaintiff 24 seeks injunctive relief, the deliberate indifference determination is based on the defendant’s 25 current conduct). 26 a) Serious Medical Need 27 Plaintiff has satisfied the objective prong of the deliberate indifference analysis. In 28 the Court’s January 12, 2021 Order on Plaintiff’s previous request for injunctive relief, the 1 Court found no meaningful dispute that Plaintiff suffers from severe spinal pain, a serious 2 medical condition. (Doc. 87 at 9.) Moreover, Centurion Defendants do not dispute that 3 Plaintiff suffers from degenerative disc disease. (Doc. 114 at 3.) Indeed, Plaintiff’s 4 condition causes him chronic and severe pain that medical personnel have found worthy of 5 attention and treatment. See McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), 6 overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 7 1997). 8 b) Deliberate Indifference 9 With respect to the subjective prong, a plaintiff must first show that the defendant 10 was “subjectively aware of the serious medical need[.]” Simmons v. Navajo Cnty., Ariz., 11 609 F.3d 1011, 1017–18 (9th Cir. 2010) (quotation and citation omitted). A defendant’s 12 knowledge of a serious medical need or substantial risk to health “is a question of fact 13 subject to demonstration in the usual ways, including inference from circumstantial 14 evidence,” and a defendant may be found to have known of a substantial risk if the risk 15 was obvious. Farmer, 511 U.S. at 842. 16 Here, there can be no dispute that Centurion Defendants are aware of Plaintiff’s 17 diagnosed condition and serious medical need because it is documented in his medical 18 records showing decades of treatment for his spinal condition, including surgeries, 19 medication trials, MRIs, and specialist appointments. Moreover, an orthopedic surgeon 20 has recommended that Plaintiff have, at a minimum, palliative measures such as Tramadol 21 and epidural injections, and a neurosurgeon has recommended epidural injection(s) and 22 physical therapy. 23 After showing that a defendant was subjectively aware of the serious medical need, 24 a plaintiff must show that the defendant “failed to adequately respond” to that need. 25 Simmons, 609 F.3d at 1018. Prison officials are deliberately indifferent to a prisoner’s 26 serious medical needs when they deny, delay, or intentionally interfere with medical 27 treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and 28 quotation marks omitted). Deliberate indifference may also be shown by the way in which 1 prison officials provide medical care, Hutchinson v. United States, 838 F.2d 390, 394 (9th 2 Cir. 1988), or “by a purposeful act or failure to respond to a prisoner’s pain or possible 3 medical need.” Jett, 439 F.3d at 1096. 4 In the January 12, 2021 Order denying injunctive relief, the Court noted that 5 Defendant Olmstead was taking steps to address Plaintiff’s pain by means other than 6 Tramadol, including seeking authorization for MRIs of Plaintiff’s lumbar and cervical 7 spine to assess whether there was further deterioration, which could support surgery or 8 epidural spinal injections, and providing lidocaine pain patches. (Doc. 87 at 10.) However, 9 at that time, the Court informed Defendants that a prolonged failure to address Plaintiff’s 10 severe pain through other means may warrant consideration of a new motion for injunctive 11 relief. (Id. at 10-11.) 12 While Plaintiff had the lumbar and cervical spine MRIs on January 8, 2021, he did 13 not see the neurosurgeon until June 25, 2021, which Centurion Defendants assert was the 14 earliest appointment available to see the neurosurgeon. (Doc. 114 at 4 n.2). But Olmstead 15 did not submit a consultation request for Plaintiff to see the neurosurgeon until April 6, 16 2021—three months after the MRIs were completed. There is no explanation for this three- 17 month delay in attempting to obtain authorization for the neurosurgery consult. When 18 Plaintiff saw the neurosurgeon in June 2021, the neurosurgeon wanted a new MRI, and 19 when Plaintiff returned to the neurosurgeon on July 30, 2021, the neurosurgeon 20 recommended epidural injections, physical therapy, and follow up in three months. 21 Afterwards, Defendant Olmstead only submitted a routine consultation request for epidural 22 lumbar injections, and as of the date of the hearing, October 29, 2021, Plaintiff had not had 23 an epidural injection. Plaintiff has had physical therapy sessions at the prison, but they 24 caused him more discomfort than benefit. 25 Centurion Defendants argue there is no evidence Plaintiff has been denied 26 appropriate medical care and that he simply disagrees with the medical providers who have 27 changed his pain medication from a narcotic to a non-narcotic. (Doc. 114 at 6.) They 28 assert that “alternative means to treat Plaintiff’s pain, including epidural steroid injections 1 and/or additional surgery, are currently being evaluated by the appropriate specialists.”5 2 (Id. at 4.) 3 Centurion Defendants have provided no explanation why Tramadol was appropriate 4 for ten years and is suddenly inappropriate, requiring immediate cessation, or how the 5 minimal pain relievers Plaintiff has received outside of the hospital or infirmary have been 6 adequate to treat his significant pain issues. Defendant Olmstead makes the conclusory 7 statement that “the medical decision has been made, after repeat examinations and other 8 testing, that [Plaintiff] needs to be weaned off of narcotics, including Tramadol, due to 9 poor tolerance/side effects . . . and that there is no medical indication to continue this 10 medication.” (Doc. 114-6 at 2.) Olmstead, though, does not say how Plaintiff manifested 11 “poor tolerance/side effects” or point to any medical records showing poor tolerance/side 12 effects to Tramadol. Nor does she explain why, if Plaintiff had poor tolerance/side effects 13 to Tramadol which would contraindicate its use, he has been prescribed Tramadol while in 14 the hospital and prison infirmary. Olmstead does say that Plaintiff “is still being prescribed 15 some pain medication, including a topical aspercream [sic] lidocaine patch to place on his 16 lower back for pain, due to the lower risk of drug interaction and side effects, especially 17 with [Plaintiff’s] advancing age the fact that he is a fall risk.” (Doc. 114-6 at 2 ¶ 5.) But 18 Olmstead does not address the history of falls Plaintiff has had since his regular Tramadol 19 prescription was stopped in September 2020 or how Tramadol has increased the likelihood 20 of falls by Plaintiff. Moreover, Dr. Davidson, who reviewed Plaintiff’s medical records 21 and evaluated Plaintiff by telephone, did not attribute the falls to Tramadol use and 22 recommends that a “prescribed moderate dose of Tramadol should be sustained,” noting 23 Tramadol’s “prior effectiveness and its lack of side-effects over the span of many years.” 24 (Doc. 109 at 29 ¶ 41.) Dr. Feiz-Erfan has recommended epidural injection(s), and, 25 although Centurion Defendants indicated at the hearing that Plaintiff would have an 26 27 28 5 Defendants made this argument before Plaintiff saw Dr. Feiz-Erfan for the second time on July 30, 2021. 1 injection around mid-November, it is unknown if Plaintiff will receive more than one 2 injection or on a regular basis, as Dr. Davidson indicates may be necessary. 3 Centurion Defendants’ post-hearing evidence of an unwritten policy that opiates 4 only be prescribed for cancer patients with severe pain, terminal illness with pain, or other 5 long-term disease implicating severe pain symptoms is unpersuasive, especially 6 considering Plaintiff’s past use of Tramadol for over ten years in the prison setting when 7 Plaintiff was neither a cancer patient nor had a terminal illness. Specifically, the Court 8 finds the policy unpersuasive because there was no evidence that it was based on a patient 9 specific medical justification or a penological justification. Moreover, it appears Plaintiff’s 10 pain may fall under the unwritten policy’s category of “long-term disease implicating 11 severe pain symptoms.” 12 Of particular concern to the Court is Centurion Defendants’ delay of more than a 13 year of treating Plaintiff’s severe pain with something as effective as Tramadol. See Hallet, 14 296 F.3d at 744; Jett, 439 F.3d at 1096. Plaintiff’s expert, who has interviewed and 15 evaluated Plaintiff, recommended in June 2021 that Plaintiff be prescribed Tramadol on an 16 ongoing basis, but Plaintiff has only received Tramadol when hospitalized or in the 17 infirmary. Defendants finally sent Plaintiff to a specialist this summer, who recommended 18 on July 30, 2021 that Plaintiff receive epidural injections and follow-up in three months, 19 but Plaintiff had not received those injections as of October 29, 2021, and was not 20 scheduled to receive an injection until sometime in November 2021, and there is no 21 evidence that a follow-up appointment with Dr. Feiz-Erfan has been scheduled. The Ninth 22 Circuit and other courts have routinely found that failure to follow a specialist’s 23 recommendation may amount to a course of treatment that is medically unacceptable. See 24 Colwell v. Bannister, 763 F.3d 1060, 1069 (9th Cir. 2014) (denying summary judgment 25 where prison officials “ignored the recommendations of treating specialists and instead 26 relied on the opinions of non-specialist and non-treating medical officials who made 27 decisions based on an administrative policy”); Snow v. McDaniel, 681 F.3d 978, 988 (9th 28 Cir. 2012) (where the treating physician and specialist recommended surgery, a reasonable 1 jury could conclude that it was medically unacceptable for the non-treating, non-specialist 2 physicians to deny recommendations for surgery), overruled in part on other grounds by 3 Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014); Jones v. Simek, 193 F.3d 485, 490 4 (7th Cir. 1999) (the defendant physician’s refusal to follow the advice of treating specialists 5 could constitute deliberate indifference to serious medical needs); McNearney v. Wash. 6 Dep’t of Corrs., C11-5930 RBL/KLS, 2012 WL 3545267, at *26 (W.D. Wash. June 15, 7 2012) (in granting a preliminary injunction for specialist treatment, the district court found 8 that the prisoner plaintiff showed a likelihood of success on the merits of her Eighth 9 Amendment claim where the defendants failed to follow an orthopedic surgeon’s strong 10 recommendation for further orthopedic evaluation). In addition, a failure to competently 11 treat a serious medical condition, even if some treatment is prescribed, may constitute 12 deliberate indifference in a particular case. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 13 (9th Cir. 1989) (“access to medical staff is meaningless unless that staff is competent and 14 can render competent care”); see Estelle, 429 U.S. at 105 & n.10 (the treatment received 15 by a prisoner can be so bad that the treatment itself manifests deliberate indifference); 16 Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (prisoner does not have to prove that 17 he was completely denied medical care). 18 Based on this record, Plaintiff has shown a likelihood of success on the merits of his 19 deliberate indifference claim regarding the treatment of his pain. While up until the time 20 of the hearing Plaintiff had received minimal treatment, the evidence shows that treatment 21 is inadequate. And, the continual delays in providing adequate alternative pain 22 management also support that Plaintiff will succeed on the merits of this claim. A 23 reasonable jury could find that, in these circumstances, Centurion Defendants failed to 24 competently treat Plaintiff’s serious pain needs and acted with deliberate indifference. 25 2. Irreparable Injury 26 In addition to showing a likelihood of success, Plaintiff must demonstrate that 27 absent an injunction, he will be exposed to irreparable harm. Caribbean Marine Servs. 28 Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th 1988) (speculative injury is not irreparable 1 injury sufficient for a preliminary injunction); see Winter, 555 U.S. at 22. To support a 2 mandatory preliminary injunction for specific medical treatment, a plaintiff must 3 demonstrate ongoing harm or the present threat of irreparable injury, not a past injury. See 4 Conn. v. Mass., 282 U.S. 660, 674 (1931) (an injunction is only appropriate “to prevent 5 existing or presently threatened injuries”); Caribbean Marine, 844 F.2d at 674. “[T]here 6 must be a presently existing threat of harm, although injury need not be certain to occur.” 7 Villaneuva v. Sisto, CIV S-06-2706 LKK EFB P, 2008 WL 4467512, at *3 (E.D. Cal. Oct. 8 3, 2008) (citing FDIC v. Garner, 125 F.3d 1272, 1279–80 (9th Cir. 1997)). Pain can 9 constitute irreparable harm. See Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004) 10 (irreparable harm includes delayed and/or complete lack of necessary treatment, and 11 increased pain); McNearney, 2012 WL 3545267, at *14 (finding a likelihood of irreparable 12 injury where the plaintiff’s medical condition predated her incarceration and had not 13 worsened, but the evidence showed that she continued to suffer unnecessary pain due to 14 the defendants’ inadequate treatment plan); Von Collin v. Cnty. of Ventura, 189 F.R.D. 15 583, 598 (C.D. Cal. 1989) (“Defendants do not argue that pain and suffering is not 16 irreparable harm, nor could they”). 17 Prior to his kidney issues earlier this year, Plaintiff reported to Dr. Davidson that his 18 pain was constant at 8 out of 10, he suffers “incomprehensible pain” when he transfers to 19 and from the wheelchair, a history of falls, that the pain is only somewhat lessened by 20 remaining in a seated position, that he cannot lie down at all, and he only sleeps 21 sporadically. After Plaintiff’s treatment for kidney issues, his pain is now at 9 out of 10, 22 his ability to transfer has decreased even more, and his sleep is even more compromised. 23 Plaintiff’s ongoing severe pain and associated issues are sufficient to support a 24 finding of irreparable harm. See Estelle, 429 U.S. at 103 (Eighth Amendment applies even 25 to “less serious cases, [where] denial of medical care may result in pain and suffering which 26 no one suggests would serve any penological purpose” ); McGuckin, 974 F.2d at 1060 (pain 27 and anguish suffered by prisoner constituted harm sufficient to support a § 1983 action). 28 3. Balance of Hardships 1 Courts “must balance the competing claims of injury and must consider the effect 2 on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 3 24 (quotation omitted). The Ninth Circuit has held that the interest in protecting individuals 4 from physical harm outweighs a government entity’s monetary costs. See Harris v. Bd. of 5 Supervisors, L.A. Cnty., 366 F.3d 754, 766 (9th Cir. 2004) (“faced with [ ] a conflict 6 between financial concerns and preventable human suffering, [the court has] little difficulty 7 concluding that the balance of hardships tips decidedly in plaintiff’s favor”) (quotation 8 omitted). 9 Centurion Defendants argue that “restructuring the procedures and policies for one 10 single inmate could result in security and safety breaches, inmate unrest and staffing issues, 11 particularly where the relief sought is not necessary or is already being processed.” (Doc. 12 114 at 9-10.) They further argue that the relief requested would trigger federalism concerns 13 and cause the Court to needlessly interfere with the prison’s operations. 14 The Court is unconvinced by Centurion Defendants’ general argument, without any 15 citation to any procedures or policies, that “restructuring the procedures and policies for 16 one single inmate could result in security and safety breaches [and] inmate unrest and 17 staffing issues.” The Court is also unconvinced that granting Plaintiff pain relief would 18 result in needless interference in the prison’s operations. 19 As articulated above, Plaintiff is likely to suffer irreparable injury absent an 20 injunction; thus, his injury is more than just speculative. Furthermore, Centurion 21 Defendants have made no showing that they will face any harm if an injunction issues. The 22 Court finds that the balance of hardships tips sharply in Plaintiff’s favor. 23 4. Public Interest 24 “[I]t is always in the public interest to prevent the violation of a party’s 25 constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quotation 26 omitted). Moreover, “the public has a strong interest in the provision of constitutionally- 27 adequate health care to prisoners.” McNearney, 2012 WL 3545267, at *16 (quoting Flynn 28 v. Doyle, 630 F. Supp. 2d 987, 993 (E.D. Wis. 2009)); see Farnam v. Walker, 593 F. Supp. 1 2d 1000, 1017 (C.D. Ill. 2009) (holding that public had an interest in the maintenance of 2 prisoner’s health during the pendency of the lawsuit). 3 Centurion Defendants argue that granting injunctive relief “would not be in the 4 public interest because it would require this Court to override the decisions of correctional 5 authorities and medical providers, who are responsible for the safety, security, care and 6 efficient operation of the prison, as well as for the healthcare of Plaintiff.” (Doc. 114 at 7 10.) They further contend that “the public welfare militates against the issuance of 8 extraordinary relief in the prison context, absent a sufficient showing of a violation of 9 constitutional rights.” (Id.) 10 Contrary to Centurion Defendants’ assertions, the record supports Plaintiff’s claims 11 that he is suffering significant pain, sleeplessness, and related issues and is being denied 12 constitutionally adequate medical care for his pain. The Court finds that it is in the public 13 interest to prevent Plaintiff from suffering ongoing pain and other complications during the 14 remainder of this lawsuit. Accordingly, this factor favors injunctive relief that requires 15 Centurion Defendants to provide the epidural injection(s) recommended by Dr. Feiz-Erfan 16 and to re-start Plaintiff’s prescription for Tramadol, unless a specialist recommends an 17 alternative pain medication. 18 5. Narrowly Tailored Relief 19 As stated, the PLRA requires any injunctive relief to be narrowly drawn and the 20 least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2). Centurion 21 Defendants do not address this factor. 22 As noted, Plaintiff wants his prescription for Tramadol re-started, as recommended 23 by Dr. Davidson, and the epidural injection(s) recommended by Dr. Feiz-Erfan. Adhering 24 to the specialists’ recommendations is the most narrowly drawn relief necessary to correct 25 the harm identified by Plaintiff. Thus, Plaintiff’s request for relief satisfies the 26 requirements of the PLRA. 27 6. Bond Requirement 28 1 Rule 65(c) of the Federal Rules of Civil Procedure provides that “[t]he court may 2 issue a preliminary injunction or a temporary restraining order only if the movant gives 3 security in an amount that the court considers proper to pay the costs and damages sustained 4 by any party found to have been wrongfully enjoined or restrained.” Despite this 5 mandatory language, “Rule 65(c) invests the district court with discretion as to the amount 6 of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) 7 (internal quotation omitted). The district court may dispense with the filing of a bond when 8 it concludes there is no realistic likelihood of harm to the defendant from enjoining his or 9 her conduct. Id. 10 Here, Centurion Defendants have not requested a bond or submitted any evidence 11 regarding likely damages. Accordingly, the Court will waive the bond requirement. 12 Having met all requirements for injunctive relief, the Court will require Centurion 13 Defendants to provide Plaintiff with the epidural injection(s) and to re-start Plaintiff’s 14 prescription for Tramadol, unless a specialist recommends an alternative pain medication. 15 B. Housing 16 As to Plaintiff’s request for different housing, ADC Defendants argue that this relief 17 is wholly unrelated to the remaining claims in this lawsuit and therefore inappropriate. 18 (Doc. 118 at 5.) In his First Amended Complaint, Plaintiff alleged that on July 12, 2019, 19 Defendant Days moved Plaintiff from the death-row wheelchair pod to the death-row 20 security threat group pod and housed Plaintiff in a cell without handicap bars, causing 21 Plaintiff to fall repeatedly while transferring to and from his wheelchair to his bunk and 22 toilet. (Doc. 36 at 5, 14.) ADC Defendants point out that the prison has now installed grab 23 bars in Plaintiff’s cell and the specific areas of the prison he requested. (Doc. 118 at 5, 24 citing Doc. 61; see also Doc. 37 at 28 (denying as moot Plaintiff’s request for grab bars in 25 his cell and shower).) Plaintiff does not address ADC Defendants’ argument that his 26 request for a transfer to a different unit is unrelated to his existing claims or requested relief. 27 “[T]here must be a relationship between the injury claimed in the motion for 28 injunctive relief and the conduct asserted in the underlying complaint.” Pac. Radiation 1 Oncology, LLC v. Queen’s Med. Center, 810 F.3d 631, 636 (9th Cir. 2015); see Devose v. 2 Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (affirming denial of a preliminary injunction 3 request based on alleged retaliatory conduct unrelated to the basis of a prisoner’s § 1983 4 claim). Plaintiff’s requested relief for a transfer is unrelated to his claim about the lack of 5 handicap bars in his cell and certain areas of the prison, which have been resolved, and 6 there is no existing claim regarding 24-hour transfer assistance or that Plaintiff has 7 requested and been denied such assistance. Accordingly, the Court will deny this request 8 for relief. 9 C. Surgical Evaluation 10 Plaintiff filed his Motion on June 22, 2021, seeking “an immediate evaluation by an 11 orthopedic specialist to determine available surgical options that could treat and improve 12 his condition.” (Doc. 109 at 2.) Plaintiff’s expert, Dr. Davidson, recommended an 13 evaluation by either an orthopedic spine surgeon or neurosurgeon to determine his surgical 14 options. In his Reply, Plaintiff states that he “asked this Court to order an evaluation with 15 a neurosurgeon, and although he “was evaluated by such a specialist in late June, nothing 16 has yet come of that evaluation and consult.” (Doc. 125 at 5 n.2.) After he filed his Reply 17 on July 19, 2021, Plaintiff saw Dr. Feiz-Erfan a second time—on July 30, 2021—and Dr. 18 Feiz-Erfan recommended epidural injection(s) to relieve Plaintiff’s pain. Dr. Feiz-Erfan 19 did not include any recommendations or comments regarding surgical options in his report. 20 Because Plaintiff has now been evaluated by a neurosurgeon, and the Court has 21 already ordered compliance with Dr. Feiz-Efran’s recommendations for epidural 22 injection(s), this request for injunctive relief is moot. 23 IT IS ORDERED: 24 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 25 for Temporary Restraining Order and Preliminary Injunction (Doc. 109). 26 (2) Plaintiff’s Motion for Temporary Restraining Order and Preliminary 27 Injunction (Doc. 109) is granted in part as follows: 28 1 (a) Within ten (10) days of the date of this Order, Centurion Defendants 2 must re-start Plaintiff's prior prescription for Tramadol, unless a specialist has 3 recommended an equally effective alternative pain medication. 4 (b) Within ten (10) days of the date of this Order, Centurion Defendants 5 must schedule the epidural injection(s) recommended by Dr. Feiz-Erfan unless the 6 injection(s) have already occurred. 7 (c) | Centurion Defendants must file a Notice with the Court within 20 days 8 of the date of this Order, that Plaintiff has been re-started on Tramadol, or on an 9 equally effective alternative pain medication recommended by a specialist, has 10 received at least one epidural injection, and when any future injections are 11 scheduled.°® 12 (d) This relief is narrowly drawn, extends no further than necessary to 13 correct the harm, and is the least intrusive means necessary to correct the harm. See 14 18 U.S.C. § 3626(a)(2). 15 (e) Plaintiff is not required to post bond. 16 (3) | The Motion is otherwise denied. 17 Dated this 7th day of December, 2021. 18 19 20 James A. Teilborg Senior United States District Judge 22 23 24 25 26 7 ° The Court recognizes that for security reasons, it may not be appropriate for Defendants to divulge the exact dates and times of the scheduled appointments for 28 injections. But Defendants’ Notice must include the week(s) in which the injection(s) are scheduled. Defendants may redact the day—but not the month or year—of the appointments or may seek to file the dates under seal for ex parte review.