United States District Court, D. Arizona
Robert F. Lindley, Jr., Plaintiff,
Corizon Health, et al., Defendants.
G. Campbell Senior United States District Judge.
Robert F. Lindley, Jr., who is currently confined in the
Arizona State Prison Complex (ASPC)-Lewis, brought this civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the Court is Plaintiff's “Motion for Court
Order to Stop Retaliation” (Doc. 60), which the Court
construes as a motion for preliminary injunction. The Court
will deny the Motion without prejudice.
screening of Plaintiff's one-count Complaint under 28
U.S.C. § 1915A(a), the Court determined that Plaintiff
stated Eighth Amendment medical care claims against
Defendants Corizon Health, medical provider Itoro Elijah, and
three members of Corizon's Utilization Management
Committee based on their alleged failures to provide or
approve proper treatment or MRIs for Plaintiff's temporal
lobe cyst and possibly compromised shunt. (Docs. 8.) The
Court ordered Defendants to answer these claims.
(Id.; Doc. 88.)
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).
Motion, Plaintiff alleges that he has tried for three months
to be seen by medical staff, but “has been
ignored.” (Doc. 60 at 1.) He claims this violates
Corizon policy, which requires medical staff to respond to
prisoners' health needs requests (HNRs) within 72 hours.
(Id.) He states that he has filed four HNRs and an
informal grievance, but has received no response, which he
asserts is in retaliation for his filing this lawsuit and
making complaints. (Id. at 1-2.) He requests that
the Court order medical staff “to properly see and
treat his medical issues, ” and he alleges that this is
“the only way Plaintiff will be seen and
treated.” (Id. at 2.) Plaintiff also attaches
copies of his Informal Complaint, an Inmate Grievance, and
four HNRs. (Id. at 5-10.)
Court will deny the Motion because Plaintiff fails to make a
showing as to any of the Winter factors, including
that he faces irreparable harm absent preliminary injunctive
relief. Plaintiff only generally claims that he has sought
medical attention for three months and has been ignored, in
violation of Corizon policy. But a policy violation, on its
own, is not a basis for the Court to intervene absent a
threat of irreparable harm. Plaintiff's Motion does not
identify any specific medical complaints for which he needs
immediate treatment; nor do his attached grievances, which
complain only that his HNRs have gone unanswered.
(See Doc. 60 at 5-6.) To the extent Plaintiff's
attached HNRs are legible, they at most show that Plaintiff
requested an MRI, which was denied (see Id. at 10).
They do not provide any information about Plaintiff's
current medical issues for which he needs immediate
treatment. Plaintiff's request that the Court order
medical staff “to promptly see and treat his medical
issues” is also too vague to support an immediate
threat to Plaintiff's health or safety, and it too broad
to allow the Court to fashion relief that is “narrowly
drawn” to address any specific threat of harm.
IS ORDERED that the reference to the Magistrate
Judge is withdrawn as to Plaintiff's
“Motion for Court Order to Stop Retaliation”
(Doc. 60), which the Court construes a motion for ...