United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
Edward Lamar Carpenter, who is currently confined in the
Arizona State Prison Complex (ASPC)-Lewis, 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.
Court previously denied the Motion to the extent Plaintiff
sought a Temporary Restraining Order and to the extent he
sought preliminary injunctive relief as to his hernia and
skin cancer, and ordered Defendants Corizon Health, Inc.
(“Corizon”) and Dentist Dr. Russell to file a
response to the remaining part of the Motion in which
Plaintiff seeks relief for his dental issues. (Doc. 44.)
Defendants have since filed a Response in opposition to the
Amended Motion (Doc. 49), and Plaintiff has not filed a
reply, and the time to do so has passed. The Court will deny
the Amended Motion for Preliminary Injunction, but will
require Defendants to file a Notice regarding their
compliance with Dr. Russell's treatment plan.
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).
Amended Motion for Injunctive Relief (Dental Care)
Amended Motion, Plaintiff seeks a Court order directing
Defendants to send him to a periodontist because Dental has
refused to clean his teeth for three years. (Doc. 18 at 3-4.)
In his Second Amended Complaint, he alleges that prison
dental staff have refused to clean his teeth since 2015, and,
as a result, his teeth have started to loosen and fall out,
causing him to lose 4 teeth; Defendant Dr. Russell saw
Plaintiff in June 2018 and also refused to clean his teeth,
and instead insisted on pulling more teeth; Dr. Russell
confirmed that Plaintiff's teeth needed deep cleaning but
did not provide this; and the prison only allows Plaintiff a
2-inch toothbrush, with which Plaintiff is unable to maintain
proper dental hygiene without periodic cleanings.
(Id. at 13.)
argues that (1) he is suffering irreparable harm absent
injunctive relief, (2) his suffering outweighs
Defendants' interests in saving money, (3) he has made
viable claims for relief, and (4) it is in the public
interest for prisoners, including Plaintiff, to receive
adequate medical care. (Doc. 18 at 2-3.) He further argues
that his request for relief extends no further than is needed
to address his injuries.
argue that Plaintiff cannot show a likelihood of success on
the merits of his underlying claim or a likelihood of
irreparable harm because he has already received appropriate
dental care, and a periodontal visit is not medically
indicated. (Doc. 44 at 6-8.)
Plaintiff's Dental Records
produce evidence that Plaintiff saw Dr. Favela on July 31,
2015 in response to a Health Needs Request (HNR) for a
routine teeth cleaning, and Dr. Favela took x-rays,
hand-scaled Plaintiff's teeth to remove plaque, calculus,
and stains, and diagnosed Plaintiff as having “advanced
periodontitis” and other dental issues-including
missing, loose, or dangling teeth-for which she advised him
to submit an HNR requesting a dental exam. (Doc. 49-1 at
2-3.) Thereafter, on August 3, 2015, Plaintiff refused his
follow-up appointment and signed a “Refusal to Submit
to Treatment” form, in which ...