United States District Court, D. Arizona
G. Campbell, United States District Judge
Michael More, who is currently confined in the Arizona State
Prison Complex-Buckeye, has filed a pro se civil rights
Complaint pursuant to 42 U.S.C. § 1983. Before the Court
is Plaintiff's Motion for Preliminary Injunction and
Temporary Restraining Order. (Doc. 5.) The Court will deny
screening pursuant to 28 U.S.C. § 1915(A)(a), the Court
found that Plaintiff stated Eighth Amendment medical claims
against Defendants Corizon, Ende, Rogers, Labar, Coleman,
Grabowski, Myers, Elijah, and Barnett and directed them to
answer. (Doc. 15.) The Court dismissed the remaining claims
and Defendants (Id.)
now moves for injunctive relief and seeks a Court order
directing Defendants to have his automated implantable
cardioverter defibrillator (AICD) replaced and to take him
for follow-up echocardiograms (ECG) every three months. (Doc.
5 at 3.)
Motion for Injunctive Relief
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.
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. INS, 795 F.2d 1434, 1441 (9th Cir. 1986)
Prison Litigation Reform Act 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 intrusive means
necessary to correct the harm. 18 U.S.C. § 3626(a)(2);
see Gilmore v. People of the State of Cal., 220 F.3d
987, 999 (9th Cir. 2000).
Court will deny Plaintiff's motion because he has failed
to show that he is likely to succeed on the merits of his
claim or that he will suffer irreparable harm absent
injunctive relief. To establish a likelihood of success on
the merits of an Eighth Amendment medical care claim, a
prisoner must demonstrate “deliberate indifference to
serious medical needs.” Jett v. Penner, 439
F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). The prisoner must show
(1) that his condition constitutes a “serious medical
need” and (2) that the defendant's current response
to that need is deliberately indifferent. Jett , 439
F.3d at 1096.
have presented evidence that Plaintiff had his AICD
successfully replaced during an offsite procedure on March
12, 2018, and that when the new AICD was tested during an
offsite follow-up appointment on March 30, 2018, it was
reported as functioning normally. (Doc. 17 at 30-35, 48.)
Since the replacement of his AICD, Plaintiff has reported
improvement of his symptoms. (Id. at 48.) Further,
the results of Plaintiff's most recent ECG on January 22,
2018 were normal and a follow-up ECG in six months was
recommended. (Id. at 26-27.) Plaintiff has failed to
produce any contradictory medical evidence.
based on the available facts, there is no evidence that
Plaintiff's serious medical needs have been disregarded.
Plaintiff has also failed to show that he will suffer
irreparable harm if his ...