United States District Court, D. Arizona
ORDER
David
G. Campbell Senior United States District Judge
Plaintiff
Cleveland Yarrow Cook, who is currently confined in the
Arizona State Prison Complex-Lewis, filed a pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983. Before
the Court is Plaintiff's Motion for a Temporary
Restraining Order and Preliminary Injunction (Doc. 26). The
Court will deny the motion.
I.
Background
On
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated Eighth Amendment
failure-to-protect claims in Count One against Defendants
Lee, Kaufman, Metzler, Charette, and Pontious, and Eighth
Amendment medical claims in Count Two against Defendants
Young, Endie, and Elisha. (Doc. 7.) The Court dismissed the
remaining claims and Defendants. (Id.)
Plaintiff
alleged in Count Two of his Complaint that after another
inmate hit him in the head twice with handcuffs, Defendants
Young, Endie, and Elisha denied him medical care for injuries
related to the assault. (See generally, Doc. 1, Doc.
7.)
II.
Motion for Injunctive Relief
In his
Motion seeking injunctive relief, Plaintiff alleges that he
is being denied pain management medications for his ear and
physical therapy, and that he is experiencing continued pain,
stiffness, headaches, and limited motion in his neck. (Doc.
26 at 2.) Plaintiff specifically alleges that on May 17,
2017, Defendant Ende told him that there is a way to fix the
ringing in Plaintiff's ear, but “we [sic] will not
get the same treatment in prison as we would in
society.” (Doc. 28 at 2.) Plaintiff further alleges
that Defendants Ende and Elijah discontinued Plaintiff's
medications for pain management, and denied Plaintiff's
requests to be seen by a specialist and for physical therapy.
(Id.) Plaintiff asserts that his neck is stiff and
painful, he has headaches, and his hearing is impaired.
(Id.)
As
relief, Plaintiff seeks “a medically appropriate course
of physical therapy designed to restore and maintain the full
function of his neck, ” examination by “a
qualified hearing specialist and orthopedic specialist and to
be put back on . . . Gabapentin and Tramadol.” (Doc. 27
at 2.)
In
Response, Defendants Young, Elijah, and Ende present the
following relevant evidence. With regard to Plaintiff's
request for physical therapy for his neck pain, Plaintiff has
submitted no HNRs since September 2017 related to neck pain
and did not complain about it during his January 31, 2018
visit with Ende. Even so, if Plaintiff's neck pain is not
well-managed, physical therapy is a realistic option, and a
Physical Therapy consult request has been entered for
Plaintiff, though not yet approved.
With
regard to Plaintiffs' complaints of ringing in the ears,
Plaintiff has not complained of ringing in his ears since
September 13, 2017, tinnitus (ringing in the ears) is not
generally a sign of a serious problem, and there is no cure
or treatment. Nonetheless, in an abundance of caution, an ENT
consult request has been entered for Plaintiff “for
persistent tinnitus in the right ear” given
Plaintiff's trauma history. With regard to
Plaintiff's requests for Gabapentin and Tramadol,
Defendant Ende does not believe those medications are
indicated for Plaintiffs' chronic pain, and Plaintiff has
not explained what adverse reactions he is having to other
pain medications he has been prescribed such that his
providers would need to consider alternatives.
In
Reply, Plaintiff states specific side effects he has had from
other medications. He also argues that there are
“hearing aids and some type of supplements available to
treat Tinnitus.” (Doc. 38.)
III.
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 ...