(PC) Cortinas v. Ikegbu ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:23-cv-00285-CKD P 12 Plaintiff, 13 v. ORDER AND 14 N. IKEGBU, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and 19 Local Rule 302. 20 I. Factual and Procedural History 21 At the time of filing the initial complaint in this matter, plaintiff also filed a motion for a 22 temporary restraining order and/or a preliminary injunction. ECF No. 3. A second ex parte 23 motion for a temporary restraining order was filed on March 26, 2023.1 ECF No. 8. 24 On May 1, 2023, the court screened plaintiff’s complaint and gave him the option of 25 proceeding on the Eighth Amendment deliberate indifference claims against defendants Ikegbu, 26 Osman, Haile, and Patterson or of amending his complaint to fix the deficiencies with respect to 27 1 The filing date was calculated using the prison mailbox rule. See Houston v. Lack, 487 U.S. 28 266 (1988). 1 the remaining defendant and claims. In a separate order filed the same date, the court directed the 2 Supervising Deputy Attorney General to enter a special appearance in this action prior to service 3 of the complaint, and to file a response to plaintiff’s motions seeking injunctive relief. ECF No. 4 10. On May 15, 2023, a response was filed. ECF No. 15. Plaintiff’s motions seeking 5 preliminary injunctive relief have now been fully briefed. ECF Nos. 16-19. 6 II. Motions for a Temporary Restraining Order 7 In his original motion, plaintiff seeks a preliminary injunction requiring defendants to 8 follow the treatment recommendations of Neurosurgeon Morris Senegor documented in medical 9 reports dated November 15, 2021 and March 14, 2022. ECF No. 3. Specifically, plaintiff 10 indicates that Dr. Senegor recommended that his morphine dose be increased, Baclofen be added 11 to his pain management regimen, and that plaintiff have arthroplastic surgery of the C5-6 and C6- 12 7 discs with a Mobi-C device implanted. ECF No. 3 at 4. In a more detailed second motion for 13 preliminary injunctive relief, plaintiff attaches the reports of Dr. Senegor that contain these 14 treatment recommendations. ECF No. 8 at 11-17. Plaintiff further indicates that defendant 15 Ikegbu has cancelled the orders of other doctors to provide plaintiff with morphine for pain 16 management. ECF No. 8 at 2. According to plaintiff, he has been denied surgery for his lumbar 17 issues as well as adequate pain management as retaliation against him for filing the present 18 lawsuit and to maliciously cause him pain. ECF No. 8 at 5. Regarding his ability to succeed on 19 the merits of his Eighth Amendment deliberate indifference claims, plaintiff points out that there 20 is no dueling medical opinions in this case because defendant Ikegbu has never examined or 21 treated plaintiff. ECF No. 8 at 2; ECF No. 8-1 at 4-5. In the absence of injunctive relief, plaintiff 22 alleges that he suffers diminished daily functioning based on the ongoing denial of surgery and 23 adequate pain medication. ECF No. 8-1 at 8. 24 In response to these motions, defendants “acknowledge that plaintiff has a serious medical 25 need and that the surgery recommended by Dr. Senegor is needed. Defendants, however, have 26 legitimate medical concerns whether authorizing the surgery at the present time would lead to an 27 unfavorable outcome because of plaintiff’s lack of participation in physical therapy and the high 28 dosages of pain medication, including opioid medication, which pose risks of addiction and 1 dependence. Rather, the [d]efendants continue to recommend participation in physical therapy 2 and a reduction in pain medication in favor of safer alternatives.” ECF No. 15 at 7. According to 3 defendants, plaintiff’s claims “raise a dispute concerning a course of treatment which does not 4 constitute deliberate indifference” in violation of the Eighth Amendment. ECF No. 15 at 7. 5 Regarding whether plaintiff will suffer irreparable harm without injunctive relief, defendants 6 point out that the recommendation for cervical spine surgery was made on an elective basis and 7 not on an emergency basis. ECF No. 15 at 19. Defendants also submit that the requested 8 injunctive relief extends further than necessary to correct the asserted harm which violates the 9 Prison Litigation Reform Act (“PLRA”). Id. 10 The defendants’ response also includes declarations from defendants Dr. Haile and Dr. 11 Ikegbu. ECF No. 15 at 24-45. This evidence indicates that plaintiff’s case was presented to the 12 interdisciplinary Care Team Enhancement Conference (“CTEC”) on March 30, 2022, which 13 included a presentation of Dr. Senegor’s recommendations. ECF No. 15 at 26. “The CTEC 14 noted that the surgery recommended by Dr. Senegor could be an appropriate treatment option but 15 was not the first option of treatment at that time due to concerns whether the recommended 16 surgery would result in a good outcome….” ECF No. 15 at 26. In May 2022, plaintiff’s case was 17 also presented to the Complex Case Conference Committee at the California Medical Facility. 18 ECF No. 15 at 26-27. “This committee also supported interdisciplinary modalities to chronic 19 pain management in lieu of the use of long-term opioids, based on concerns regarding Mr. 20 Cortinas’ past refusal to participate in …physical therapy, and the lack of evidence in the medical 21 community that the long term use of opioid medications had been successful in managing 22 mechanical cervical and low back pain….” Id. Based on the treatment recommendations of 23 these two committees, “the level of morphine sulfate prescribed for Mr. Cortinas has been tapered 24 down and reduced, and the Lyrica and Baclofen have been tapered and discontinued….” Id. at 25 27. While defendant Ikegbu acknowledges “tak[ing] steps to discontinue the use of medication 26 inconsistent with the CTEC and the Complex Case Conference committee recommendations[, 27 t]hese steps have not been taken to inflict harm or pain to Mr. Cortinas; rather, these steps have 28 been taken in order to provide appropriate medication and treatment consistent with current best 1 medical practices and to address Mr. Cortinas’ symptoms and complaints without prompting 2 adverse outcomes such as opioid addiction and dependence and poor surgical results.” ECF No. 3 15 at 43. 4 By way of reply, plaintiff indicates that he is currently engaged in additional physical 5 therapy sessions recommended by defendant Haile. ECF No. 16 at 1. He disputes ever testing 6 positive for heroin or cannabis while in custody. Id.; see also ECF No. 17 at 1 (plaintiff’s 7 supplemental declaration). According to plaintiff, his current dose of morphine is below the daily 8 maximum dosage outlined in CDCR guidelines. ECF No. 16 at 3. Plaintiff also filed an 9 objection to defendants’ response disputing the contents of the declarations provided by Dr. 10 Ikegbu and Dr. Haile. ECF No. 19. In the objections, plaintiff generally disputes the medications 11 that he was prescribed and what type of pain they are used to treat even though he is not a 12 medical doctor. ECF No. 19. In a separately filed pleading, plaintiff requests that the court take 13 judicial notice of an April 26, 2022 Addendum prepared by Dr. Haile that contains a list of the 14 medications he was taking. ECF No. 18 at 7-9. According to plaintiff, this contradicts Dr. 15 Haile’s declaration and also impeaches that of Dr. Ikegbu. ECF No. 18 at 5. Lastly, plaintiff 16 filed a separate objection to Dr. Haile’s declaration on the basis that his signature on the 17 document is not witnessed. ECF No. 20. 18 III. Legal Standards 19 A temporary restraining order is an extraordinary and temporary “fix” that the court may 20 issue without notice to the adverse party if, in an affidavit or verified complaint, the movant 21 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 22 before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). A 23 preliminary injunction represents the exercise of a far-reaching power not to be indulged except 24 in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 25 1964). “A preliminary injunction... is not a preliminary adjudication on the merits but rather a 26 device for preserving the status quo and preventing the irreparable loss of rights before 27 judgment.” Sierra On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). 28 “The proper legal standard for preliminary injunctive relief requires a party to demonstrate 1 ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 2 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 3 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing 4 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (internal quotations omitted). 5 The Ninth Circuit’s sliding-scale test for a preliminary injunction has been incorporated into the 6 Supreme Court’s four-part Winter’s standard. Alliance for Wild Rockies v. Cottrell, 632 F.3d 7 1127, 1131 (9th Cir. 2011) (explaining that the sliding scale approach allowed a stronger showing 8 of one element to offset a weaker showing of another element). “In other words, ‘serious 9 questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can 10 support issuance of an injunction, assuming the other two elements of the Winter test are also 11 met.” Alliance, 632 F.3d at 1131-32 (citations omitted). Additionally, in cases brought by 12 prisoners involving conditions of confinement, any preliminary injunction “must be narrowly 13 drawn, extend no further than necessary to correct the harm the court finds requires preliminary 14 relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 15 A motion for preliminary injunction must be supported by “[e]vidence that goes beyond 16 the unverified allegations of the pleadings.” Fidelity Nat. Title Ins. Co. v. Castle, No. C-11- 17 00896-SI, 2011 WL 5882878, *3 (N.D. Cal. Nov. 23, 2011) (citing 9 Wright & Miller, Federal 18 Practice & Procedure § 2949 (2011)). The plaintiff, as the moving party, bears the burden of 19 establishing the merits of his or her claims. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 20 7, 20 (2008). 21 In this case, plaintiff seeks a mandatory injunction requiring defendants to provide 22 specific medical treatment. A mandatory injunction orders a party to take action. Marlyn 23 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). Because 24 a mandatory injunction “goes well beyond simply maintaining the status quo… [it] is particularly 25 disfavored.” Id. (internal alterations omitted). “In general, mandatory injunctions ‘are not 26 granted unless extreme or very serious damage will result and are not issued in doubtful cases or 27 where the injury complained of is capable of compensation in damages.’” Id. (quoting Anderson 28 v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979)). 1 IV. Analysis 2 Under the first test for a preliminary injunction, plaintiff must demonstrate a “high 3 probability of success on the merits” of the case. See Associated Gen. Contractors of California, 4 Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991). The only claims that 5 were found cognizable in the court’s screening order were Eighth Amendment deliberate 6 indifference claims based on the treatment of plaintiff’s back injury. 7 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 8 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 9 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 10 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 11 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 12 pain.’” Id., citing Estelle, 429 U.S. at 104. Here, defendants concede that plaintiff has 13 demonstrated a serious medical need for treatment of his back injury. 14 So the only issue is whether plaintiff has sufficiently demonstrated that defendants’ 15 response to his serious medical need was deliberately indifferent. Jett, 439 F.3d at 1096. This 16 second prong is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain 17 or possible medical need and (b) harm caused by the indifference. Id. Under this standard, the 18 prison official must not only “be aware of facts from which the inference could be drawn that a 19 substantial risk of serious harm exists,” but that person “must also draw the inference.” Farmer v. 20 Brennan, 511 U.S. 825, 837 (1994). This “subjective approach” focuses only “on what a 21 defendant’s mental attitude actually was.” Id. at 839. A showing of merely negligent medical 22 care is not enough to establish a constitutional violation. Frost v. Agnos, 152 F.3d 1124, 1130 23 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A difference of opinion about the proper 24 course of treatment is not deliberate indifference, nor does a dispute between a prisoner and 25 prison officials over the necessity for or extent of medical treatment amount to a constitutional 26 violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 27 891 F.2d 240, 242 (9th Cir. 1989). “[T]o prevail on a claim involving choices between 28 alternative courses of treatment, a prisoner must show that the chosen course of treatment was 1 medically unacceptable under the circumstances, and was chosen in conscious disregard of an 2 excessive risk to [the prisoner's] health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) 3 (internal quotation marks omitted)). Where a prisoner alleges that delay of medical treatment 4 evinces deliberate indifference, the prisoner must show that the delay caused “significant harm 5 and that Defendants should have known this to be the case.” Hallett, 296 F.3d at 745-46; see 6 McGuckin, 974 F.2d at 1060. 7 Even though the court has screened plaintiff's complaint and found that it states a 8 cognizable Eighth Amendment claim against certain defendants, this does not mean that plaintiff 9 has shown a likelihood of success on the merits to warrant a preliminary injunction. In his 10 argument in support of injunctive relief, plaintiff suggests that there are no medical opinions that 11 differ from those of Dr. Senegor. However, defendants’ response indicates that plaintiff’s case 12 has been submitted to the interdisciplinary Care Team Enhancement Conference (“CTEC”) and 13 the Complex Case Conference Committee at the California Medical Facility. The present record 14 demonstrates a plethora of medical opinions.2 The CTEC indicated that cervical spine surgery 15 “may be an option[,] but it is not a first option of treatment at this point in time.” ECF No. 15 at 16 30 (Declaration of Defendant Haile). The Complex Case Conference Committee did not 17 recommend long-term opioid use for the management of plaintiff’s pain based on the risks 18 associated with its use. ECF No. 15 at 38; see also ECF No. 15 at 42-43 (Declaration of 19 Defendant Ikegbu) (noting that “Expert opinions and national guidelines have moved away from 20 this approach.”). Based on the number of medical professionals involved in managing plaintiff’s 21 treatment and the numerous medical conditions that plaintiff suffers from, this court is not in any 22 position to say which medical opinion is right at this preliminary stage in the legal proceedings. 23 The undersigned finds that plaintiff has not shown that defendants’ chosen course of treatment is 24 medically unacceptable under the circumstances, or that defendants opted to forego the spinal 25 surgery in conscious disregard of an excessive risk to his health given the totality of his numerous 26 27 2 The court denies plaintiff’s request for judicial notice of a select portion of his medical records, although this information has been reviewed and considered in support of plaintiff’s motion for 28 injunctive relief. 1 | medical conditions. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Because 2 | plaintiff has not met the first prong required for injunctive relief, the court finds it unnecessary to 3 || address the remaining factors. Accordingly, the court recommends denying plaintiff's motions 4 | for preliminary injunctive relief. 5 IV. Plain Language Summary for Pro Se Party 6 The following information is meant to explain this order in plain English and is not 7 || intended as legal advice. 8 The undersigned magistrate judge is recommending that your motions for preliminary 9 || injunctive relief be denied. If you do not agree with this decision, you have 14 days to explain 10 || why it is not correct. Label your explanation as “Objections to Magistrate Judge’s Findings and 11 || Recommendations.” The district judge assigned to your case will make the final decision on your 12 || motion for a preliminary injunction. 13 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this 14 || matter to a district court judge. 15 IT IS FURTHER RECOMMENDED that plaintiff's motions for a temporary restraining 16 || order and/or a preliminary injunction (ECF Nos. 3, 8) be denied. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 19 || after being served with these findings and recommendations, any party may file written 20 || objections with the court and serve a copy on all parties. Such a document should be captioned 21 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 || objections shall be filed and served within fourteen days after service of the objections. The 23 || parties are advised that failure to file objections within the specified time may waive the right to 24 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 | Dated: June 15, 2023 / hice fr fA. ? *6 CAROLYNK.DELANEY 27 UNITED STATES MAGISTRATE JUDGE 28 12/cort0285.57. TRO. merits