Mason v. Ryan

          ORDER

          DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Nathan Sterling Mason brought this civil rights action under 42 U.S.C. § 1983 against Arizona Department of Corrections (ADC) Director Charles L. Ryan; Correctional Officer Joshua Baese; Corizon, LLC; and Nurse Practitioner Andreas Thude. (Doc. 46.) Mason alleged several Eighth Amendment claims, including that he was subjected to a threat to his safety and denied adequate medical care for injuries he suffered after an attack by other inmates. (Id.) On April 2, 2019, the Court appointed counsel to represent Mason. (Doc. 372.) Pending before the Court is Mason's Motion for Preliminary Injunction, which relates to medical care. (Doc. 303.) Corizon and Thude (Defendants) responded. (Doc. 323.) The Court will deny the Motion.

         I. Background

         In his First Amended Complaint, Mason alleged that in December 2015, he suffered a neck injury, and his C5-C6 discs bulged through his spinal canal, causing extreme and chronic pain and medical problems. (Doc. 46 at 3.) On October 31, 2018, Mason underwent Mobi-C disc replacement surgery. (Doc. 303 at 1.) In his Motion for Preliminary Injunction, Mason seeks an order directing Defendants to send him back to the orthopedic surgeon for follow-up, to provide specialist-recommended pain medication, and to provide him with a medical wedge and medical mattress. (Id.)

         II. Preliminary Injunction 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. Nat. 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” version of the sliding-scale test, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. See Alliance for the Wild Rockies, 632 F.3d at 1135.

         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 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).

         “The urgency of obtaining a preliminary injunction necessitates a prompt determination” and makes it difficult for a party to procure supporting evidence in a form that would be admissible at trial. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). As a result, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). In its determination on a motion for a preliminary injunction, “a court may properly consider evidence that would otherwise be inadmissible at trial.” Cherokee Inc. v. Wilson Sporting Goods Co., No. CV 15-04023 BRO (Ex), 2015 WL 3930041, at *3 (C.D. Cal. June 25, 2015); see Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (district court did not abuse its discretion by considering “unverified client complaints” and the plaintiff's counsel's interested declaration when it granted a preliminary injunction); Flynt Distrib. Co., 734 F.2d at 1394 (the district court has discretion to rely on hearsay statements when deciding whether to issue a preliminary injunction). A court may also consider evidence or developments that postdate the pleadings. Farmer v. Brennan, 511 U.S. 825, 846 (1994).

         When evaluating the merits of a preliminary injunction motion, a court's factual findings and legal conclusions are not binding at trial on the merits. Camenisch, 451 U.S. at 395.

         III. Relevant Facts

         On October 31, 2018, Mason underwent an outpatient, anterior discectomy with a Mobi-C disk replacement of level C5-C6. (Doc. 323-2 at 23, 27.) The orthopedic surgeon, Dr. Waldrip, ordered that Mason be placed in the infirmary for 48 hours, wear a cervical collar at all times, and return for a follow-up appointment on November 6, 2018. (Id. at 26, 30.) The discharge medication instructions directed Mason to take the following medications, for which printed prescriptions were provided: acetaminophen-hydrocodone (Norco), 1 tablet every 6 hours as needed for pain for 7 days; and cephalexin 500 mg (Keflex, an antibiotic), 1 capsule 4 times a day for 7 days. (Id. at 28, 34-35.) Dr. Waldrip directed that in addition to the new prescriptions, Mason should continue taking ibuprofen, 600 mg 3 times a day, and amlodipine and lisinopril (high blood pressure medications) once a day. (Id. at 29.)

         On October 31, 2018, when Mason returned to the prison, he saw Nurse Reginald Harrell, who documented that Mason denied any numbness or tingling and agreed to notify staff with any problems or concerns. (Id. at 36-37, 40.) Mason was not placed in the infirmary. (Id. at 45; Doc. 295.) Nor was Mason given the Norco or Keflex medications as prescribed. (Id.) Instead, he was prescribed Tylenol #3 tablets, 300 mg twice a day for seven days, and Keflex, 500 mg just once a day. (Doc. 323-2 at 47-48, 50, 56.)

         On his first night back from the hospital, Mason tried to lay flat on his bed but was paralyzed with pain; he began shaking and experienced labored breathing, which prevented him from being able to call for help. (Doc. 298, Mason Decl. ¶ 6.) When Mason's cellmate woke up, the cellmate called for help for hours, but there was no response. (Id. ¶ 7.) Mason's cellmate helped lift Mason up to a seated position, where Mason stayed until the cell doors were opened for breakfast, at which time he slowly made his way out to contact corrections officers. (Id. ¶¶ 8-9, 11-12.) The officers initiated an Incident Command System for a medical emergency because Mason was unable to move due to extreme pain. (Doc. 323-2 at 66.) Medical staff responded after approximately 30 minutes. (Doc. 298, Mason Decl. ¶ 12.) Mason told medical staff that he could not sit or lay down, so he was told to stand. (Id.) The medical record documented that Mason was prescribed bed rest and “lay in” for 7 days with meals in his room. (Doc. 323-2 at 70.)

         The next day, just before 6:00 a.m., a second Incident Command System was initiated when Mason reported that he could not sit or lay down due to pain, that the Tylenol #3 tablets provided to him were doing nothing for pain, and that he had not slept for two days since his surgery. (Id. at 73.) The responding nurse was unable to do an assessment because Mason refused to be touched and wanted to go to the medical unit to see the provider. (Id. at 74.) Mason was administered a Toradol injection for pain, and a prescription for Methocarbamol (muscle relaxant) was issued. (Doc. 323-3 at 4.)

         About an hour later, at 7:00 a.m., Mason was brought to the medical unit for an assessment; he reported constant, throbbing pain since his surgery, and stated that he had not sat or laid down for two days due to pain. (Id. at 11.) Mason was transported by emergency personnel to the hospital, where he was provided treatment and pain medications, including Norco, morphine, antibiotics, and another Toradol injection, after which Mason reported that he felt much better. (Id. at 11, 15, 17-18, 31; Doc. 295.) An x-ray was taken of his cervical spine and it showed no hardware deformity. (Doc. 323-3 at 18.) The emergency room physician contacted Dr. Waldrip, who recommended increasing ibuprofen to 800 mg three times a day. (Id.)^[1] Mason was discharged the same day from the hospital with a ...