United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.)
Preliminary Injunction Standard
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.
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).
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).
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.
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.)
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.)
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.)
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.)
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.) Mason was
discharged the same day from the hospital with a ...