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Carpenter v. Ryan

United States District Court, D. Arizona

January 14, 2019

Edward Lamar Carpenter, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge.

         Plaintiff Edward Lamar Carpenter, who is currently confined in the Arizona State Prison Complex (ASPC)-Buckeye, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's Amended Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 18). The Court will deny the Motion in part as to Plaintiff's requests for relief for his hernia and skin cancer and will order Defendants Corizon and Russell to file a response to the part of the Motion in which Plaintiff seeks relief for his dental issues.

         I. Background

         In his four-count First Amended Complaint, Plaintiff sued Arizona Department of Corrections (ADC) Director Charles L. Ryan, Corizon Health Services, Nurse Practitioner Lawrence Ende, Nurse LaToya Bryce, Mary Rankin, “N.P.C.” Susan Thompson, and Dr. Russell for their alleged violations of his Eighth Amendment rights regarding his medical care. On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated claims against (1) Defendant Bryce in Counts One and Three related to her alleged failure to adequately treat Plaintiff's hernia-related pain and knee pain, (2) Defendant Corizon in Count One regarding its alleged failure to treat Plaintiff's hernia, and (3) Defendant Russell in Count Four regarding his alleged failure to clean Plaintiff's teeth. (Doc. 12.) The Court dismissed the remaining claims and Defendants. (Id.) The Court also denied in part Plaintiff's then-pending Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 2) to the extent that Plaintiff sought a Temporary Restraining Order, and it directed Defendants Corizon, Bryce, and Russell to answer the First Amended Complaint and the portion of Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order seeking a preliminary injunction.. (Doc. 12.)

         Prior to Service, Plaintiff filed a Second Amended Complaint (Doc. 13) and the now-pending Amended Motion for Preliminary Injunction and Temporary Restraining Order (“Amended Motion”) (Doc. 18), prompting the Court to stay service pending further order from the Court. (Doc. 14.) Following Magistrate Judge Metcalf's unopposed Report and Recommendation (R&R), the Court granted Plaintiff leave to amend and found that Plaintiff continued to state the above claims and had stated an additional claim in Count One against Defendant Ende related to Ende's alleged failure to treat Plaintiff's hernia pain. (Docs. 17, 28.) The Court ordered Defendants Corizon, Ende, Bryce, and Russell to respond to the Second Amended Complaint as set forth in the R&R. (Doc. 28.)

         The Court subsequently determined that Plaintiff's Amended Motion was a duplicate of his original Motion and ordered Defendants Corizon and Bryce (hereinafter “Defendants”) to file a response to the Amended Motion. (Doc. 30.) Because the Court had previously found that the Motion was unrelated to conduct of Defendants Ende and Russell, it did not require them to respond. (Id.)

         Defendants have filed “Defendants' Special Appearance in Order to Respond to Plaintiff's Amended Motion for Preliminary Injunction and Temporary Restraining Order” (Doc. 35), and Plaintiff has not filed a reply, although the time to do so has elapsed.

         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. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).

         The Prison Litigation Reform Act imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials. It 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).

         III. Amended Motion for Injunctive Relief

         In his Amended Motion, Plaintiff seeks a Court order directing Defendants to provide immediate treatment for his skin cancer and surgical repair of his hernia and to send him immediately to a periodontist because Dental has refused to clean his teeth for three years. (Doc. 18 at 3-4.) Plaintiff does not include any specific facts about these medical issues in his Amended Motion, Affidavit (Doc. 4), or Memorandum of Law in Support (Doc. 5).[1] In his Second Amended Complaint, however, he alleges that he was diagnosed with a hernia in 2011 and has “had to endure pain related to this injury by [Corizon] medical staff, ” who have refused to treat him; N.P. Ende saw him for his hernia on March 28, 2018 and said he would order Tylenol, but Plaintiff did not receive any medication; and when Plaintiff inquired about getting hernia-repair surgery, Ende told him Corizon would not spend the money, and Plaintiff would have to wait for a new contracted provider. (Doc. 13 at 3-4.)

         As to his skin cancer, Plaintiff alleges that a dermatologist diagnosed him in 2016 with skin cancer and prescribed medication that Plaintiff never received; instead, the medication was only temporarily applied to Plaintiff's back at “pill call” for one or two weeks. Plaintiff's skin cancer has become “noticeably worse, ” and Ende said he would look into renewing Plaintiff's medication, but Plaintiff has received nothing to ...


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