United States District Court, D. Arizona
ORDER
David
G, Campbell Senior United States District Judge
Plaintiff
Edward Lamar Carpenter, who is currently confined in the
Arizona State Prison Complex-Lewis, filed a pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983. Before
the Court is Plaintiff's “Motion: To Add Additional
Facts to Motion Sent 28 Feb 2019 Hernia, Knee & Hemroid
[sic]” (Doc. 70) and “Motion: Discovery of Dental
Records and Additional Facts” (Doc. 83), which the
Court construes as Motions for Preliminary Injunction. The
Court is also in receipt of Defendants Corizon Health, Inc.
(“Corizon”) and Dentist Dr. Larry Russell's
“Joint Notice to Court Regarding Periodontal
Treatment” (Doc. 66), to which Plaintiff has filed a
Response (Doc. 67).
I.
Background
On
screening of Plaintiff's four-count First Amended
Complaint (Doc. 30) under 28 U.S.C. § 1915A(a), the
Court determined that Plaintiff stated claims against
Defendants Corizon, Nurse Practitioner (NP) Lawrence Ende,
Nurse LaToya Bryce, and Dr. Russell for alleged violations of
Plaintiff's Eighth Amendment rights regarding his medical
and dental care. (Docs. 17, 48.)
II.
Notice Regarding Periodontal Treatment
On
February 12, 2019, the Court denied without prejudice
Plaintiff's Amended Motion for Preliminary Injunction
(Doc. 18), in which Plaintiff sought relief for various
medical issues, including an asserted need for urgent dental
care. (See Doc. 55.) In denying the Motion, the
Court relied in part on Dr. Russell's December 21, 2018
treatment plan for Plaintiff to receive follow-up periodontal
treatment and gave Defendants Corizon and Russell 30 days to
“file a Notice indicating whether they have provided
follow-up periodontal treatment for Plaintiff in accordance
with Dr. Russell's December 21, 2018 treatment plan or
explaining why such treatment has not been provided.”
(Doc. 55.)
In
their Notice, filed on March 13, 2019, Corizon and Russell
(“Defendants”) produce dental records showing
that Plaintiff received the follow-up periodontal treatment
Dr. Russell prescribed. (Doc. 66.) The records show that, on
February 22, 2019, Plaintiff was seen by Dental Assistant
Delvia Orellana for teeth cleaning. (Doc. 66-3.) He was also
seen by Dentist Jose DeLossantos, who completed scaling and
root planing of all four quadrants of Plaintiff's mouth
based on Plaintiff's desire to keep his teeth as long as
possible and discussed Plaintiff's need for extractions
of teeth 29 and 30 due to mobility and bone loss, which
Plaintiff indicated he understood. (Doc. 66-4.) This
treatment was in accordance with Dr. Russell's December
21, 2018 treatment plan. (See Doc. 66-1.)
Plaintiff
filed a Response to the Notice (Doc. 67), in which he largely
realleges complaints about his dental care that the Court
already addressed in its February 12, 2019 Order denying all
of Plaintiff's requests for preliminary injunctive
relief. (See Doc. 55.) Although Plaintiff continues
to disagree with the course of dental treatment Defendants
have provided going back to 2011, he does not dispute that he
has received the care Dr. Russell prescribed, which was the
only remaining issue from Plaintiff's Amended Motion for
Preliminary Injunction (Doc. 18) still pending before the
Court. Because Defendants have produced evidence that
Plaintiff received this treatment, there are no remaining
issues to address relative to that Motion, and no further
notice or action from Defendants with respect to that Motion
is required.
III.
Plaintiff's New Motions for Preliminary
Injunction
A.
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 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).
B.
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