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David Arenberg v. Charles Ryan

January 5, 2011

DAVID ARENBERG, PLAINTIFF,
v.
CHARLES RYAN, ET AL.,
DEFENDANTS.



WO JDN

ORDER

Plaintiff David Arenberg brought this civil rights action under 42 U.S.C. § 1983 against various officials from the Arizona Department of Corrections (ADC) (Doc. 1). Before the Court is Plaintiff's Motion for Preliminary Injunction (PI) (Doc. 5).

The Court will direct Defendant Ryan to file a Supplemental Notice with the Court and deny Plaintiff's motion without prejudice. The Court will also vacate a portion of its prior order dismissing Jim Taylor, reinstate Taylor as a Defendant, and order service on him.

I. Background

Plaintiff's claim arose during his confinement at the Arizona State Prison Complex (ASPC)-Lewis Complex and ASPC-Florence Complex (Doc. 1 at 2-3). He named as Defendants Charles Ryan, ADC Director; Sharon Malcolm, Facility Health Administrator at the ASPC-Lewis Complex; and Jim Taylor, the Regional Health Administrator (id. at 2). Plaintiff alleged that Defendants failed to treat his serious medical need in violation of the Eighth Amendment (id.).

In his verified Complaint, Plaintiff set forth the following facts:

In May 2008, Plaintiff was sent to an outside consultation with a urologist, who diagnosed Plaintiff with an enlarged prostate, prescribed medication, and advised Plaintiff that he would require surgery if the medication did not work. Plaintiff took increasing dosages of the medication for over a year, but his condition worsened. In July 2009, Plaintiff sought medical care, and a prison physician-Dr. Kanter-referred Plaintiff for another outside urology consultation (id. at 3-4). By November 2009, four months after the referral, Plaintiff still had not seen a urologist, so he initiated the prison grievance process. In response to his grievance, Malcolm informed Plaintiff that ADC had lost its contracts with outside medical providers; therefore, all outside consultations were indefinitely postponed (id. at 4). Plaintiff appealed his grievance but received no responses and did not see a urologist (id.).

In June 2010, Plaintiff was transferred to ASPC-Florence, where he resubmitted his request for an outside urology consultation. On September 14, 2010, he received a response to his grievance appeal from Taylor, who informed Plaintiff that an outside urology consultation would occur within 30 days (id. at 4-5). Taylor also acknowledged the delay in responding to the appeal and apologized to Plaintiff (id.). Plaintiff did not see a urologist within 30 days (id. at 5). Therefore, in October 2010, he initiated this action.

Plaintiff claimed that his medical condition caused him to get up to urinate at least 8-12 times a night. He stated that the condition worsened and urination became so difficult that he was issued and is currently using a catheter (id.). Plaintiff alleged that he suffers severe sleep deprivation and mental anguish (id.).

In conjunction with his Complaint, Plaintiff filed a Motion for PI (Doc. 5). The Court screened the Complaint and ordered Ryan to respond to the claim that he was deliberately indifferent based on his failure to maintain contracts with outside medical providers (Doc. 6). Ryan was also directed to file a response to the PI motion (id.).

The Court found that Plaintiff's allegations against Malcolm and Taylor, however, failed to support a deliberate indifference claim, and they were dismissed without prejudice (id.). Plaintiff moved the Court to reconsider dismissal of these Defendants (Doc. 8).

Because Plaintiff did not meet the standard for reconsideration, that request was denied (Doc. 9).

II. Parties' Contentions

A. Plaintiff's Motion for PI

Plaintiff seeks an order from the Court directing Ryan and Taylor to immediately arrange an outside urology consultation for Plaintiff (Doc. 5). With his motion, Plaintiff submits his declaration, which restates the facts set forth in his Complaint (id., Attach., Pl. Decl. ¶¶ 2-10). He also submits copies of the grievance response from Malcolm and the grievance appeal response from Taylor (id., Ex. 1).

Plaintiff argues that injunctive relief is appropriate because he is threatened with irreparable harm (id. at 4). He submits that he has been denied care for a serious medical need in contradiction to a physician's instructions; namely, Dr. Kanter's referral for an outside urology consultation (id. at 2, 4). Plaintiff claims that he is suffering mental anguish due to sleep deprivation and the use of a catheter, and he contends that without a preliminary injunction, he is unlikely to obtain the necessary medical treatment in the near future (id. at 5).

Plaintiff next argues that the balance of hardships weigh in his favor (id.). He states that his present and potential future suffering is enormous; whereas, the "suffering" to Defendants consists of taking Plaintiff to a doctor and carrying out that doctor's orders (id.). Plaintiff contends this is something that Defendants are already obligated to do; thus, he maintains there would be no hardship if an injunction is issued (id.).

Plaintiff further contends that an injunction is warranted because he will likely succeed on the merits (id. at 6). Plaintiff notes that he is now using a catheter and clearly suffers a serious medical need. He argues that he has waited over fifteen months to see a urologist to commence the necessary treatment and that treatment has been denied in clear violation of his constitutional rights (id.).

Plaintiff submits that an injunction will serve the public interest because it is always in the public interest for prison officials to obey the law (id. at 7).

Lastly, Plaintiff asks the Court to exercise its discretion to excuse the requirement to post security for injunctive relief (id.). Plaintiff notes that he is indigent and proceeding in forma pauperis (id.).

B. Ryan's Motion for Extension

Ryan filed a motion seeking 30 additional days to respond to Plaintiff's PI Motion (Doc. 10). Before receiving any response from Plaintiff, the Court ruled on the motion and denied it part (Doc. 11). Ryan was directed to file a response to the PI motion by December 17, 2010, which was 3 days from the Court's Order (id.). Two days later, the Court received Plaintiff's response to Ryan's motion for an extension (Doc. 13). In this response, Plaintiff stated that since the filing of his PI motion, he was taken to an outside urologist, who recommended that Plaintiff ...


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