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Benge v. Ryan

United States District Court, D. Arizona

February 23, 2015

Robert Joseph Benge, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Robert Joseph Benge, who is incarcerated in the Arizona State Prison Complex-Lewis ("ASPC-Lewis"), brought this civil rights case pursuant to 42 U.S.C. ยง 1983. (Doc. 1). Thereafter, Plaintiff filed a "Motion Requesting Preliminary Injunction and a Temporary Restraining Order." (Doc. 12.) Seven days later, Plaintiff filed his Motion again, adding four pages that were apparently missing from the original motion, and exhibits. (Doc. 16.) Defendants Corizon and Tucker filed a Response to Plaintiff's Motions (Doc. 25) and Defendants Pratt and Ryan filed a separate Response (Doc. 31). Plaintiff filed a Reply in support of the Motions. (Doc. 36.) Plaintiff has also filed a "Motion Requesting Appointment of Expert Witness to Assist/Preliminary Injunction and Temporary Restraining Order Hearing." (Doc. 39.)

I. Background

A. Complaint

Plaintiff filed a Complaint seeking damages and asserting two Counts of the denial of constitutionally adequate medical care. (Doc. 1.) In Count I, Plaintiff alleged that his Eighth Amendment rights were violated when he was denied immediate treatment for a fractured tibia in May 2012. Plaintiff did not receive an MRI until July 3, 2012, which showed "an incomplete transverse fracture through the medial tibial, " and Plaintiff did not receive the results of the MRI until a visit with an orthopedic surgeon on November 15, 2012. (Doc. 1 at 9-10.) As a result of the lack of immediate treatment, Plaintiff avers that he has suffered permanent injury and continuing pain.

In Count II, Plaintiff alleged that his Eighth Amendment rights were violated when, on multiple occasions, he did not receive prescribed pain medication. Plaintiff alleged that on June 18, 2013, his prescription medications Gabapentin and Propranolol were abruptly discontinued for three months because Defendant Mahler failed to renew those prescriptions and failed to give Plaintiff's chart to the healthcare provider. Plaintiff also claimed that Mahler refused to arrange for Plaintiff to see a healthcare provider for pain management issues. Plaintiff alleged that on September 18, 2013 Defendant Tucker abruptly discontinued Plaintiff's Baclofen 60 mg daily and reduced his Gabapentin from 3200 mg daily to 600 mg, even though both were prescribed for "neurovascular compromise, muscle spasms for the fracture[d] tibia that was never treated." (Doc. 1 at 18.) Plaintiff's Tramadol 50 mg twice daily for pain management related to an eye condition was stopped on November 5, 2013 and his Gabapentin 600 mg daily was stopped "cold turkey" on January 16, 2014 and has not been renewed. ( Id. ) Plaintiff saw an outside eye specialist on January 14, 2014, who wrote a prescription for Tramadol 300 mg twice daily for pain management, but Defendant Tucker refused to prescribe this medication for Plaintiff.

The Court determined that Plaintiff's allegations sufficiently stated a claim and ordered Defendants Ryan, Pratt, Wexford, Merchant, and Mahler to answer the allegations in Count I and Defendants Ryan, Pratt, Corizon and Tucker to answer the allegations in Count II. (Doc. 6.) The Court dismissed the remaining Defendants without prejudice.[1]

B. Motions for Preliminary Injunction and Temporary Restraining Order

In his two Motions, Plaintiff alleges that he has been deprived of the following: (1) "adequate pain management medication(s)" ("Baclofen 60 mg daily, Tramadol 300 mg daily, and Gabapentin 3200 mg daily"), which were "suddenly discontinued without explanation"; (2) physical therapy for his fractured tibia; (3) four consultations that were denied by Corizon in the past fifteen months; (4) supportive walking shoes with custom orthotics; and (5) an evaluation by a neurosurgeon in order to have an electromyography and nerve conduction test ("EMG/NCV") for "nerve damage from [Plaintiff's] untreated fracture[d] tibia." (Doc. 16 at 2-3.)

Plaintiff seeks an order from the Court compelling Defendants Ryan, Pratt and Corizon to provide Plaintiff with the following: (1) pain management medications (Tramadol 300 mg daily, Gabapentin 3200 mg daily, and Baclofen 60 mg daily); (2) a support cane; (3) physical therapy twice a week for 120 days; (4) medical ice as needed; (5) supportive walking shoe(s) and custom orthotics; (6) an appointment to see a podiatrist; (7) an appointment to see a neurosurgeon to have an EMG/NCV test performed, as well as a CT scan or MRI; (8) and a knee brace. (Doc. 16 at 19-21.) Plaintiff also seeks an order requiring Librarian R. Padilla and Paralegal Uliberry, who are not named as Defendants in this case, "to stop den[y]ing Plaintiff meaningful access to this Court with their interference with regards to legal photocopies." ( Id. at 20.)

II. Legal Standard

"A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) ("[a] preliminary injunction is an extraordinary remedy never awarded as of right"). A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. "But if a plaintiff can only show that there are serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, ' and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, "[t]he elements... must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez, 680 F.3d at 1072.

Regardless of which standard applies, the movant "has the burden of proof on each element of the test." See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted "unless the facts and law clearly favor the plaintiff." Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).

The Prison Litigation Reform Act ("PLRA") imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials and requires that any injunctive relief be narrowly drawn and the least ...


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