Bollinger 328092 v. NaphCare Incorporated

Opinion

1 WO 2 JDN 3 4 5 8 9 Johnny Ray Bollinger, No. CV-23-02008-PHX-DGC (MTM) 10 Plaintiff, 11 v. ORDER 12 NaphCare Incorporated, et al., 13 Defendants.

14 15 Plaintiff Johnny Ray Bollinger, who is currently confined in the Arizona State 16 Prison Complex (ASPC)-Lewis, Barchey Unit, brought this pro se civil rights action under 17 42 U.S.C. § 1983 against NaphCare Incorporated (“NaphCare”) and Nurse Practitioner 18 Grace Adams. (Doc. 1.) Before the Court are Plaintiff’s Motion for Preliminary Injunction 19 (Doc. 41) and Motion for Leave to Supplement Briefing (Doc. 81). The Court will grant 20 the Motion for Leave to Supplement Briefing and grant in part the Motion for Preliminary 21 Injunction. 22 I. Background 23 In his Complaint, Plaintiff set forth an Eighth Amendment medical care claim based 24 on Defendants’ alleged denial of adequate medical care for Plaintiff’s psoriatic and 25 rheumatoid arthritis. (Doc. 1 at 4, 9.) Prior to his incarceration, Plaintiff was prescribed 26 methotrexate and Enbrel,1 which were effective in treating his symptoms. (Id. at 4.) 27 28 1 Methotrexate tablets are a dihydrofolate reductase inhibitor indicated for the treatment of rheumatoid arthritis and severe psoriasis. See Methotrexate label, https://www.accessdata.fda.gov/drugsatfda_docs/label/2020/040054s015,s016,s017.pdf 1 Plaintiff alleged that Defendants have refused to provide him Enbrel, Special Needs Orders 2 (SNOs) for assistive medical devices, and an appointment with a rheumatologist, despite a 3 non-party doctor’s recommendation for a specialist appointment. (Id. at 6–10.) Plaintiff 4 alleged that his symptoms have worsened and have resulted in progressive disability when 5 walking or performing other basic life activities. (Id. at 7.) Plaintiff requested damages 6 and declaratory and injunctive relief. (Id. at 5.) 7 On October 21, 2024, Plaintiff filed his pending Motion for Preliminary Injunction, 8 which seeks the following relief: an appointment with rheumatologist Dr. Ulker Tok within 9 14 days; a directive that all Dr. Tok’s orders and recommendations be promptly followed; 10 the administration of Enbrel as prescribed by Dr. Tok; a directive to schedule and ensure 11 physical therapy; and a directive that Defendants file notices of compliance every 30 days. 12 (Doc. 41 at 1–2, 20.) 13 On November 20, 2024, the Court ordered Defendants to file a response with 14 complete medical records. (Doc. 42.) 15 On December 4, 2024, NaphCare filed its Response, which opposes the Motion in 16 part because Plaintiff was scheduled to start biologic injection treatment the next day. 17 (Doc. 49.) 18 On December 18, 2024, Plaintiff filed his Reply, stating that he had not yet started 19 any biologic injection treatment. (Doc. 56.) 20 On March 11, 2025, Plaintiff filed his pending Motion for Leave to Supplement 21 Briefing, in which he states that, to date, he has not had the 3-month follow up appointment 22 that Dr. Tok ordered in October 2024. (Doc. 81). 23 II. Preliminary Injunction Standard 24 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 25

26 (last visited April 1, 2025). Enbrel is the brand name for etanercept, a tumor necrosis factor (TNF) blocker indicated for the treatment of rheumatoid arthritis and psoriatic arthritis. 27 Enbrel is administered by subcutaneous injection. See Enbrel (etanercept) Label, https://www.accessdata.fda.gov/drugsatfda_docs/label/2012/103795s5503lbl.pdf (last 28 visited April 1, 2025). Enbrel is a biologic medication. See Enbrel (etanercept), Nat’l Psoriasis Foundation, https://www.psoriasis.org/enbrel/ (last visited April 1, 2025). 1 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 2 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 3 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 4 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 5 never awarded as of right”). Nonetheless, “federal courts must not shrink from their 6 obligation to enforce the constitutional rights of all persons, including prisoners,” and must 7 not “allow constitutional violations to continue simply because a remedy would involve 8 intrusion into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037, 9 1047 (9th Cir. 2021) (citation omitted). 10 A plaintiff seeking a preliminary injunction must show: (1) he is likely to succeed 11 on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; 12 (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. 13 Winter, 555 U.S. at 20. When the government opposes a preliminary injunction, “[t]he 14 third and fourth factors of the preliminary-injunction test—balance of equities and public 15 interest—merge into one inquiry.” Porretti, 11 F.4th at 1047. The “balance of equities” 16 concerns the burdens or hardships to a prisoner complainant compared with the burden on 17 the government defendants if an injunction is ordered. Id. The public interest mostly 18 concerns the injunction’s impact on nonparties. Id. (citation omitted). Regardless, “[i]t is 19 always in the public interest to prevent the violation of a party’s constitutional rights.” Id. 20 (citation omitted). 21 Where a plaintiff seeks a mandatory injunction, rather than a prohibitory injunction, 22 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 23 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 24 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 25 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 26 (9th Cir. 2009)). Further, under the Prison Litigation Reform Act, injunctive relief must 27 be narrowly drawn and be the least intrusive means necessary to correct the harm. 18 28 1 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2 2000). 3 III. Motion for Leave to Supplement Briefing2 4 As set for below, in October 2024, Plaintiff saw rheumatologist Dr. Tok. (Doc. 81 5 at 7.) At that time, Dr. Tok ordered that Plaintiff return for follow up in 3 months. (Id.) 6 In his Motion for Leave to Supplement Briefing, Plaintiff requests to supplement the record 7 with the fact that, as of March 11, 2024, NaphCare has not scheduled Plaintiff for follow 8 up with Dr. Tok as recommended in October 2024. (Id. at 1.) 9 On March 25, 2025, NaphCare filed its Response, which opposes Plaintiff’s Motion 10 on the grounds that the Motion for Preliminary Injunction is fully briefed; Plaintiff only 11 sought a particular medication, and that request is moot; and Plaintiff is scheduled to see 12 the outside rheumatologist next week, so relief premised on seeing a rheumatologist is 13 moot. (Doc. 84.) 14 Plaintiff’s Motion included not just a request for a particular medication—Enbrel— 15 but also a request that NaphCare be directed to promptly follow all the rheumatologist’s 16 orders and recommendations. (Doc. 41 at 1–2.) The outside rheumatologist specifically 17 ordered a follow-up appointment to occur three months after the October 21, 2024 18 appointment. (Doc. 81 at 7.) Thus, the supplemental fact that Plaintiff seeks to include in 19 the record—that no such follow up has occurred—is related to his original request for 20 injunctive relief. 21 NaphCare submits no evidence, such as a medical record or sworn statement from 22 a medical official with personal knowledge, to support defense counsel’s assertion that 23 Plaintiff is scheduled to see the outside rheumatologist next week. (See Doc. 84.) See 24 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 923 (9th Cir. 2001) 25 (“arguments of counsel, however, are not evidence”) (internal quotation marks and citation 26

27 2 Because the Court grants Plaintiff’s Motion for Leave to Supplement Briefing, 28 Plaintiff is not prejudiced by the Court ruling on the Motion before receiving Plaintiff’s Reply. 1 omitted); Single Chip Systems Corp. v. Intermec IP Corp., 495 F. Supp. 2d 1052, 1062 2 (S.D. Cal. 2007) (“this Court cannot consider factual evidence that [is] only proffered by 3 counsel”). Accordingly, Plaintiff request for a follow up appointment is not moot. 4 Finally, the fact that the Motion for Preliminary Injunction was fully briefed months 5 ago is not a basis for disregarding supplemental facts for purposes of ruling on the motion. 6 When addressing a motion for preliminary injunction, courts may consider evidence or 7 developments that postdate the pleadings. Farmer v. Brennan, 511 U.S. 825, 846 (1994). 8 Indeed, it is the defendant’s current conduct that determines whether injunctive relief is 9 warranted. Id. at 845. 10 The Court will grant Plaintiff’s Motion for Leave to Supplement Briefing and 11 include in its analysis the fact that, to date, Plaintiff has not had the 3-month follow up that 12 the specialist recommended in October 2024. 13 IV. Relevant Facts 14 In 2007, Plaintiff was diagnosed with psoriatic and rheumatoid arthritis. (Doc. 41 15 at 1.) These conditions cause severe pain and swelling in Plaintiff’s joints, skin 16 inflammation, rashes, psoriasis, and limited mobility. (Doc. 1 at 4; Doc. 41 at 4.) 17 Rheumatoid arthritis also impairs the immune system, which causes significant symptoms 18 such as immune suppression, difficulty in recovering from infections, and fatigue. 19 (Doc. 41 at 4.) Prior to incarceration, Plaintiff was treated by Dr. Steven Baak, a 20 rheumatologist practicing in St. Louis, Missouri. (Id.) Dr. Baak devised a treatment 21 regimen that combined methotrexate and Enbrel, which effectively treated Plaintiff’s 22 symptoms. (Id.; Doc. 1 at 4.) 23 When Plaintiff entered ADCRR custody in 2018, he informed medical officials of 24 his diagnoses and treatment regimen at intake. (Doc. 41 at 4.) The intake provider 25 informed Plaintiff that he could not receive Enbrel; Plaintiff was given only methotrexate. 26 (Id. at 4, 27.) 27 NaphCare took over as the ADCRR contracted healthcare provider in October 2022. 28 (Doc. 49 at 2.) 1 Starting at ASPC-Eyman, Special Management Unit (SMU) 1, and continuing at 2 every facility at which he was housed, Plaintiff repeatedly requested a regimen of Enbrel 3 injections at provider appointments, but he was consistently informed that Enbrel is not on 4 the formulary and NaphCare does not approve Enbrel due to cost. (Doc. 41 at 5.) Providers 5 instead provided numerous other medications that were ineffective, including Ibuprofen, 6 Tylenol, Naproxen, and Meloxicam. (Id.) 7 Plaintiff continued to complain via Health Needs Requests (HNRs) and the 8 grievance system about his worsening symptoms, including worsening systemic joint pain, 9 which made most daily living activities—movement, exercise, and basic functions—nearly 10 impossible, and he requested to be given Enbrel and to see a rheumatologist. (Id.; see Doc. 11 41-1 at 8, 9, 11–13.) 12 On May 25, 2023, Plaintiff saw NP Ellis via telemedicine and requested Enbrel. 13 (Doc. 41 at 5.) NP Ellis informed Plaintiff that any treatment regimen involving Enbrel 14 would be rejected by NaphCare due to the expense and NaphCare policy. (Id. at 5–6.) 15 On June 7, 2023, Plaintiff saw NP Adams, who informed Plaintiff that there was no 16 need for him to see a specialist because all they would do is monitor Plaintiff, and that can 17 be done at the prison. (Doc. 41-1 at 23.) 18 On August 25, 2023, Plaintiff saw Dr. Warren Tripp, who took Plaintiff’s history 19 and conducted a comprehensive examination. (Id. at 2; Doc. 41 at 6.) Dr. Tripp determined 20 that Plaintiff’s current medication regimen was ineffective, and he informed Plaintiff that 21 he would submit a request for Enbrel. (Doc. 41 at 6.) The medical record noted “consider 22 referral to Rheumatologist pending labs.” (Doc. 41-1 at 5.) Plaintiff was not prescribed 23 Enbrel thereafter. (Doc. 41 at 6.) 24 In November 2023, Plaintiff was transferred to ASPC-Lewis, Barchey Unit, and he 25 again requested an appointment with a rheumatologist and a prescription for Enbrel. (Id.) 26 Plaintiff’s requests were denied, and he was told multiple times during video appointments 27 with providers that such medications are not prescribed due to their significant cost. (Id.) 28 1 On November 28, 2023, Plaintiff saw Staff Physician Vikki Owen via telemedicine 2 for a chronic care visit for asthma and rheumatoid arthritis. (Doc. 49-1 at 24, 26.) Dr. 3 Owen documented Plaintiff’s report that he was “doing ok” and “he hasn’t needed an 4 inhaler.” (Id. at 26.) 5 On February 22, 2024, Plaintiff saw Dr. Abdelmohaymin Abdalla for a chronic care 6 visit for asthma and psoriatic and rheumatoid arthritis. (Id. at 40, 42.) The medical record 7 documented Plaintiff’s report that his psoriatic and rheumatoid arthritis had “recently 8 worsened with prolonged morning stiffness and breakthrough rashes.” (Id. at 42.) Dr. 9 Abdalla noted that, prior to incarceration, Plaintiff had been on Enbrel. (Id.) Dr. Abdalla 10 also noted that Plaintiff had synovitis (inflammation) in all “PCP and MCP joints.” (Id. at 11 50.) The documented plan was to prescribe folic acid and “add rheumatology consultation 12 given his worsening and concomitant psoriatic arthritis. Anticipate that he needs to restart 13 Enbrel.” (Id. at 55.) 14 On April 17, 2024, provider Oyuki Coronado submitted an “eConsult” 15 rheumatology consult for Plaintiff due to his rheumatoid and psoriatic arthritis and “recent 16 worsening joint pains and skin eruptions.” (Doc. 41-1 at 50.) On April 18, 2024, the 17 eConsult specialist responded to the request with the opinion that, because “management 18 with biological DMARDs can be complex and require familiarity with medications,” 19 referral to a rheumatologist may be indicated. (Id. at 51–52.)3 20 On June 10, 2024, Plaintiff saw Physician Assistant (PA) Adrian Kelley via 21 telemedicine for another chronic care visit for asthma and psoriatic and rheumatoid 22 arthritis. (Id. at 56, 58.) PA Kelley documented Plaintiff’s complaint of continued mild 23 joint pains and rashes but noted that he denied swelling. (Id. at 58.) PA Kelley also noted 24 that Plaintiff was on Enbrel prior to incarceration. (Id. at 58.) PA Kelly documented a 25 plan to “request rheumatologist referral for RA/psoriatic arthritis” and follow up in 3 26 months. (Id. at 71.) 27

28 3 DMARD stands for Disease-Modifying Antirheumatic Drugs. 1 On July 25, 2024, Plaintiff saw rheumatologist Dr. Tok. (Doc. 41-1 at 35.) Dr. Tok 2 took medical, family, and surgical histories and conducted a thorough physical 3 examination. (Id. at 35–36.) Dr. Tok recommended that Plaintiff continue taking 4 methotrexate as well as folate, and to start a biologic. (Id. at 36.) Dr. Tok noted she “will 5 recommend Enbrel as he did well with it in past.” (Id.) Dr. Tok issued the following 6 prescription: 7 Enbrel (sureclick Autoinjctr) 50 mg/1 ML, Start: 07/25/24 Solution, 1 pen sq 8 [subcutaneous] q wk [once a week], Subcutaneous, Qty. 4, Substitutions Allowed, Refills: 0 9 (Id.) Dr. Tok administered the first dose of Enbrel via an injection, and she advised 10 Plaintiff that he would be injected with the biologic once a week. (Doc. 41 at 7.) Dr. Tok’s 11 office drew blood for numerous lab tests. (Id. at 6; Doc. 41-1 at 36–37.) Dr. Tok 12 documented her advisement of “the importance of taking meds as prescribed and 13 complying with monitoring and follow up appts for therapy of rheumatic disease.” (Id. at 14 37.) Finally, Dr. Tok ordered follow up in 3 months. (Id.) 15 Plaintiff’s condition improved slightly over the next week. (Doc. 41 at 7.) 16 On July 29, 2024, NP Miller prescribed ibuprofen, 600 mg twice a day for arthritic 17 pain. (Doc. 49-2 at 5.) 18 On July 30, 2024, a non-formulary medication request for Enbrel was submitted. 19 (Doc. 41-1 at 39.) 20 On July 31, 2024, “Pharm D” Kelly Lobdell entered an Addendum into Plaintiff’s 21 medical record with an “Alert” sent to the provider stating: 22 Regarding non-formulary request for Enbrel: NaphCare/ADCRR preferred 23 biologic DMARD is Hadlima. Will also need lab results before starting any 24 biologic (looks like labs were collected at offsite visit on 7/25/24). Once labs are uploaded to chart and underlying infection ruled out, please submit new 25 non-formulary request for Hadlima. Thank you. 26 (Id.) 27 The week after his appointment with Dr. Tok, Plaintiff spoke to two nurses about 28 the prescription for Enbrel injections; they both informed Plaintiff that he would not receive 1 the injections and there was no paperwork from the appointment with Dr. Tok. (Doc. 41 2 at 7.) In response to his continued inquires, medical staff repeatedly told Plaintiff that 3 Enbrel was not on the formulary and would not be given. (Id.) 4 On August 21, 2024, a “Patient Notification – Laboratory Test Results” medical 5 record form was completed by NP Brenda Rosas. (Doc. 41-1 at 40.) This form 6 documented that Plaintiff’s laboratory test results were within acceptable limits and there 7 was no need for further evaluation. (Id.) 8 Meanwhile, although Plaintiff’s condition slightly improved the week after the 9 Enbrel injection by Dr. Tok, Plaintiff did not receive any other injections thereafter, and 10 his symptoms began to worsen. (Doc. 41 at 7.) 11 On September 3, 2024, Plaintiff saw NP Megan Slattery via telemedicine for a 12 chronic care visit for asthma and psoriatic and rheumatoid arthritis. (Id. at 72, 75.) NP 13 Slattery documented Plaintiff’s complaints of mild joint pain to hands, knees, and 14 shoulders. (Id. at 75.) NP Slattery wrote, “pending follow up with rheumatology, order 15 was placed for Enbrel but will switch to hadlima as that [is] what is in formulary pending 16 approval.” (Id. at 90.) NP Slattery also noted a plan to order diclofenac gel for joint pain 17 because ibuprofen was not beneficial. (Id.) 18 On October 21, 2024, Plaintiff saw rheumatologist Dr. Tok. (Doc. 49-2 at 31.) The 19 medical record from this encounter documented Plaintiff’s complaint of psoriasis 20 “patches” on hands and elbows, joint pains in neck and shoulders, and that his activities of 21 daily living were moderately limited. (Id.) When Plaintiff reported that he was taking 22 methotrexate but had not received any Enbrel or other biologic injections, Dr. Tok became 23 angry. (Id.; Doc. 56 at 11.) Dr. Tok took medical, surgical, social, and family histories; 24 conducted a thorough examination, and reviewed Plaintiff’s lab results, which were 25 reported to Dr. Tok’s office on July 26, 2024. (Doc. 49-2 at 31–33.) Dr. Tok recommended 26 a biologic. (Id. at 34.) She wrote that “if Enbrel is not preferred due to cost an adalimumab 27 biosimilar q 2 wk [once every two weeks] is acceptable.” (Id.) Dr. Tok prescribed 28 methotrexate, folic acid, and Enbrel. (Id.) Dr. Tok again advised of “the importance of 1 taking meds as prescribed and complying with monitoring and follow up appts[.]” (Id.) 2 Dr. Tok ordered follow up in 3 months, and noted “[pls] do not send pt [patient] back if pt 3 is noncompliant with biologic.” (Id.) 4 On December 2, 2024, a non-formulary medication request was completed by NP 5 Patricia Miller for the medication Hadlima, 40 mg, to be delivered subcutaneously. 6 (Doc. 41-2 at 8,10.) NP Miller noted that this medication was “specifically recommended 7 by rheumatology,” and was to be given every other week for 90 days, starting December 8 2, 2024. (Id. at 10.) 9 Also on December 2, 2024, about 45 minutes after NP Miller’s medication request, 10 “Pharm D” Kelly Lobdell completed a non-formulary medication request for Yusimry, 40 11 mg, to be delivered subcutaneously. (Id. at 13, 17.) Lobdell noted that this medication 12 was requested by the rheumatologist, that the patient has psoriatic arthritis and has failed 13 monotherapy with methotrexate, that a biologic will be added, and that they were 14 “[u]tilizing our current preferred Humira biosimilar, Yusimry.” (Id. at 14.) Yusimry was 15 to be administrated every 2 weeks for 90 days, starting on December 5, 2024. (Id. at 17.) 16 As of December 18, 2024, Plaintiff had still not received Yusimry or any other 17 biologic. (Doc. 56 at 4.) He was receiving only Tramadol (pain medication) and 18 methotrexate. (Id.) 19 As of March 11, 2025, Plaintiff had not returned to see Dr. Tok for follow up since 20 the October 21, 2024 appointment. (Doc. 81.) 21 V. Eighth Amendment Standard 22 To support a medical care claim under the Eighth Amendment, a prisoner must 23 demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 24 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are 25 two prongs to the deliberate-indifference analysis: an objective standard and a subjective 26 standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). A 27 “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in 28 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin 1 v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), overruled on other grounds by WMX 2 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal citation 3 omitted). Examples of indications that a prisoner has a serious medical need include “[t]he 4 existence of an injury that a reasonable doctor or patient would find important and worthy 5 of comment or treatment; the presence of a medical condition that significantly affects an 6 individual’s daily activities; or the existence of chronic and substantial pain.” Id. at 1059– 7 60. 8 Second, a prisoner must show that the defendant’s response to that need was 9 deliberately indifferent. Jett, 439 F.3d at 1096. “Prison officials are deliberately 10 indifferent to a prisoner’s serious medical needs when they ‘deny, delay or intentionally 11 interfere with medical treatment.’” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 12 1990) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). Deliberate 13 indifference may also be shown where prison officials fail to respond to a prisoner’s pain 14 or possible medical need. Jett, 439 F.3d at 1096. “In deciding whether there has been 15 deliberate indifference to an inmate’s serious medical needs, [courts] need not defer to the 16 judgment of prison doctors or administrators.’” Colwell v. Bannister, 763 F.3d 1060, 1066 17 (9th Cir. 2014) (quoting Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989)). 18 Even if deliberate indifference is shown, to support an Eighth Amendment claim, 19 the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096; see 20 Hunt, 865 F.2d at 200 (delay in providing medical treatment does not constitute Eighth 21 Amendment violation unless delay was harmful). 22 VI. Discussion 23 A. Likelihood of Success 24 As to the objective prong of the Eighth Amendment deliberate indifference analysis, 25 NaphCare presents no argument that Plaintiff’s psoriatic and rheumatoid arthritis 26 conditions do not constitute a serious medical need. See Norfleet v. Webster, 439 F.3d 392, 27 395 (7th Cir.2006) (finding no dispute that rheumatoid arthritis is serious medical need); 28 Dittmer v. Bradshaw, No. 12-81309-CV, 2015 WL 471371, at *5 (S.D. Fla. Feb. 4, 2015) 1 (osteoarthritis and rheumatoid arthritis are a serious medical need) (citations omitted). The 2 record shows that Plaintiff’s conditions were serious enough for NaphCare to label them 3 “chronic care” conditions, that Plaintiff receives treatment and pain medication for these 4 conditions, and that these conditions significantly affect his daily activities and cause pain. 5 (See Doc. 49-1 at 8, 10; Doc. 49-2 at 5; Doc. 56 at 4; Doc. 49-4 at 2, Pacheco Decl. ¶ 4; 6 Doc. 41-1 at 8–13.) See McGuckin, 974 F.2d at 1059–60. Thus, Plaintiff’s conditions 7 constituted a serious medical need. 8 The Court therefore turns to the second prong—whether there was deliberate 9 indifference to Plaintiff’s serious medical need. 10 At the outset, the Court addresses NaphCare’s attempt to limit Plaintiff’s claim to 11 the denial of Enbrel. (Doc. 49 at 9.) NaphCare asserts that “Plaintiff’s lone count against 12 NaphCare pertains to Plaintiff’s allegations that NaphCare has a policy of blacklisting 13 certain medications, and, as a result, he was denied what he claims is a necessary 14 medication to treat his arthritis condition[.]” (Doc. 49 at 8–9.) But in his Complaint, 15 Plaintiff alleged that, despite his repeated HNRs to medical about his worsening symptoms 16 and progressive disability when walking, his HNRs were ignored and he was never seen 17 by a provider. (Doc. 1 at 7.) Plaintiff alleged that when he finally saw a provider he was 18 told he would have to try an alternative treatment plan before a request for Enbrel could be 19 made, but was never told what such an alternative treatment plan would entail, and his 20 request to see a rheumatologist was denied. (Id. at 7–8.) Plaintiff further alleged that 21 another provider, Dr. Tripp, recommended that Plaintiff be seen by a rheumatologist, yet, 22 at the time Plaintiff filed his Complaint in September 2023, he still had not been seen by a 23 rheumatologist or received any further treatment. (Id. at 9–10.) These allegations are 24 sufficient to assert a claim against NaphCare for the denial and delay of medical care, in 25 addition to Plaintiff’s allegation that NaphCare improperly denied the medication Enbrel. 26 Moreover, in his pending Motion for Preliminary Injunction, Plaintiff alleges that, 27 after his November 2023 move to ASPC-Lewis, Barchey Unit, his requests to see a 28 rheumatologist continued to be denied, despite reports to medical of his worsening 1 symptoms. (Doc. 41 at 6.) Plaintiff alleges that after he finally saw the rheumatologist in 2 July 2024, NaphCare refused to comply with the treatment ordered by the specialist or offer 3 any other treatment, even though Plaintiff became unable to stand or walk for significant 4 periods of time and suffered severe joint pain, rashes, and fatigue. (Id. at 6–7.) These 5 allegations further support a claim against NaphCare based on the denial and delay of care 6 and the failure to comply with specialist-recommended treatment. See Erickson v. Pardus, 7 551 U.S. 89, 94 (2007) (a pro se litigant can “bolster[ ] his claim by making more specific 8 allegations . . . in later filings”); Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (the 9 court is required to afford a pro se litigant “the benefit of any doubt in ascertaining what 10 claims he raised in his compliant and argued to the district court”) (emphasis in original) 11 (quoting Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001). 12 The record shows that in 2023 Plaintiff filed HNRs and grievances to report 13 worsening symptoms that affected daily living activities, but his repeated requests for 14 Enbrel and to see a rheumatologist were denied. (See Doc. 41-1 at 8, 9, 11–13, 23; Doc. 15 41 at 5.) In August 2023, Dr. Tripp determined Plaintiff’s current medication regimen was 16 ineffective and submitted a request for Enbrel, and he documented “consider referral to 17 rheumatologist.” (Doc. 41 at 6; Doc. 41-1 at 5.) But Plaintiff did not receive Enbrel or see 18 a rheumatologist after the encounter with Dr. Tripp. The record further shows that, in 19 February 2024, Dr. Abdalla documented worsening symptoms, including joint 20 inflammation, and submitted a rheumatology consult. (Doc. 49-1 at 42, 50, 55.) In April 21 2024, through “eConsult,” a rheumatologist recommended a rheumatology consult based 22 on Plaintiff’s worsening joint pains and skin eruptions and due to the complexity of 23 managing medications necessary for treatment. (Doc. 41-1 at 50–52.) Plaintiff was finally 24 taken to a rheumatologist in July 2024. (Doc. 41-1 at 35.) 25 NaphCare argues that Plaintiff has been seen repeatedly every three months to 26 address his arthritic conditions. (Doc. 49 at 2.) But the fact that Plaintiff was seen is 27 meaningless if the medical staff failed to respond to or treat Plaintiff’s serious medical 28 need. See Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (“access to medical 1 staff is meaningless unless that staff is competent and can render competent care”); Lopez 2 v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (prisoner does not have to prove that he was 3 completely denied medical care to support deliberate indifference claim). As Plaintiff 4 wrote in a May 2023 grievance, in one telemedicine appointment where the provider 5 informed Plaintiff that Enbrel would not be approved and he would have to try an 6 alternative treatment plan, the provider did not explain any alternative treatment plan, 7 thereby giving Plaintiff no meaningful treatment for his serious medical need. (Doc. 41-1 8 at 11–12.) 9 NaphCare also argues that there were only “minor delays in scheduling” the July 10 2024 rheumatologist appointment. (Doc. 49 at 9.) But Dr. Tripp noted “consider referral 11 to rheumatologist” in August 2023, some 11 months before the appointment. (Doc. 41-1 12 at 5.) Dr. Abdalla submitted a rheumatology consult in February 2024, five months before 13 the appointment. (Doc. 49-1 at 55.) These are significant delays. 14 For more than a year prior to the July 2024 rheumatologist appointment, Plaintiff 15 repeatedly requested Enbrel and a rheumatologist appointment, yet NaphCare provided 16 only methotrexate, a multi-vitamin and, from June to September 2023, an ointment. 17 (Doc. 49-2 at 27–29.) In August 2023, this treatment regimen was determined to be 18 ineffective. (Doc. 41 at 6.) A provider added folic acid in February 2024. (Doc. 42-9 at 19 27.) Plaintiff’s symptoms, joint swelling, and pain continued to worsen. Despite Plaintiff’s 20 worsening condition and providers’ recommendations, NaphCare refused to provide 21 Enbrel (a proven effective medication) or any comparable alternative medication, and 22 delayed bringing Plaintiff to a rheumatologist until July 2024. This delay, during which 23 NaphCare refused to provide any substantive treatment, reflects deliberate indifference. 24 See Arnett v. Webster, 658 F.3d 742, 752 (7th Cir. 2011) (holding that, where the prisoner 25 suffered from rheumatoid arthritis (RA), “[e]ven if the prison couldn’t get Enbrel because 26 it wasn’t on the formulary, medical personnel cannot stand idly by for more than ten months 27 while [the plaintiff’s] RA progressively worsened and caused permanent damage to his 28 joints; they must explore alternative treatments that are available”). 1 Plaintiff argues that NaphCare failed to comply with the treating rheumatologist’s 2 recommendations and orders following the July 25, 2023 specialist appointment. 3 (Doc. 41.) At that appointment, labs were drawn and Dr. Tok prescribed weekly Enbrel 4 injections to be added to Plaintiff’s current medication regimen of methotrexate and folic 5 acid. (Doc. 41-1 at 36.) In fact, Dr. Tok started the Enbrel treatment by injecting Plaintiff 6 at the appointment. (Doc. 41 at 7.) Despite Dr. Tok’s prescription and initiation of the 7 treatment, NaphCare argues that it “was . . . determined that multiple labs had to first be 8 conducted, and then, if underlying infection was ruled out, the biologic that would need to 9 be ordered was one comparable to Enbrel.” (Doc. 49 at 4.) In support, NaphCare cites Dr. 10 Tok’s July 25, 2024 medical record, but there is nothing in the record stating that lab results 11 needed to be received and reviewed before administration of the treatment, and Dr. Tok’s 12 injection of Plaintiff directly contradicts such a suggestion. (Id., citing Doc. 41-1 at 34– 13 37.) It was Kelly Lobdell “Pharm D” who noted in a July 31, 2024 record that they will 14 “need lab results before starting any biologic (looks like labs were collected at offsite visit 15 on 7/25/2024.)” (Doc. 41-1 at 39.) There is no indication that Lobdell is a provider or a 16 physician, much less a rheumatologist or related specialist. Yet based on this note, the 17 specific treatment ordered and started by the treating specialist was stopped. 18 Even if NaphCare required the lab results before authorizing Enbrel or a similar 19 medication, they were already available when Lobdell made this medical note. According 20 to the records, Plaintiff’s lab results were reported to Dr. Tok’s office on July 26, 2024. 21 (Doc. 49-2 at 32 (“results reported on 7/26/2024”).) NaphCare knew Dr. Tok’s office 22 collected the labs as evidenced by Lobdell’s July 31, 2024 note, yet failed to timely inquire 23 about the results, despite its claim that the results were needed before complying with Dr. 24 Tok’s order to continue Enbrel injections. The record shows that three weeks later on 25 August 21, 2024, a NaphCare NP notified Plaintiff that his lab results were all within 26 normal limits. (Doc. 41-1 at 40.) Thus, NaphCare had the lab results and Enbrel—or a 27 substitute biologic—treatment could have resumed. No such treatment was provided. 28 Instead, Naphcare speciously asserts that “Plaintiff was then sent back to the 1 rheumatologist following the labs, to confirm recommended treatment, on October 21, 2 2024.” (Doc. 49 at 4.) At the October 21, 2024 follow-up appointment, Dr. Tok was angry 3 when she learned NaphCare had not been administering the Enbrel treatment as ordered. 4 (Doc. 56 at 11.) 5 NaphCare failed to comply with Dr. Tok’s July 25, 2024 unequivocal 6 recommendation for Enbrel (or a substitute biologic) treatment. 7 At the October 21, 2024 appointment, Dr. Tok again prescribed Enbrel or a 8 substitute biologic and ordered that Plaintiff return for a follow-up appointment in three 9 months. (Doc. 49-2 at 34.) Despite NaphCare’s representation to the Court that treatment 10 with a substitute biologic, Yusimry, was supposed to begin on December 5, 2024, Plaintiff 11 had still not received Yusimry or any other biologic when he filed his Reply on 12 December 18, 2024. (Doc. 49-4, Pacheco Decl. ¶ 5; Doc. 56 at 4.) And although the 3- 13 month follow-up appointment should have occurred in late January 2025, as of March 11, 14 2025, no follow up has occurred. (Doc. 81.) 15 The Ninth Circuit has held that failure to follow a specialist’s recommendation may 16 amount to a course of treatment that is medically unacceptable. See Colwell v. Bannister, 17 763 F.3d 1060, 1069 (9th Cir. 2014) (denying summary judgment where prison officials 18 “ignored the recommendations of treating specialists and instead relied on the opinions of 19 non-specialist and non-treating medical officials who made decisions based on an 20 administrative policy”); Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (where the 21 treating physician and specialist recommended surgery, a reasonable jury could conclude 22 that it was medically unacceptable for the non-treating, non-specialist physicians to deny 23 recommendations for surgery), overruled in part on other grounds by Peralta v. Dillard, 24 744 F.3d 1076, 1083 (9th Cir. 2014); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999) 25 (the defendant physician’s refusal to follow the advice of treating specialists could 26 constitute deliberate indifference to serious medical needs). 27 The record shows that NaphCare failed to follow the treating specialist’s 28 recommendations to administer Enbrel or a substitute following the July 25, 2024 1 appointment; failed to timely administer Enbrel or Yusimry after the October 21, 2024 2 appointment; and failed to return Plaintiff for the 3-month follow-up appointment. Based 3 on the above case law, NaphCare’s conduct likely constitutes deliberate indifference. 4 Accordingly, there exists a likelihood of success on the merits of Plaintiff’s claim 5 against NaphCare. 6 B. Irreparable Injury 7 Plaintiff must demonstrate that absent an injunction he will be exposed to 8 irreparable harm. Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th 9 Cir. 1988); see Winter, 555 U.S. at 22. “[T]here must be a presently existing threat of 10 harm, although injury need not be certain to occur.” Villaneuva v. Sisto, CIV S-06-2706 11 LKK EFB P, 2008 WL 4467512, at *3 (E.D. Cal. Oct. 3, 2008) (citing FDIC v. Garner, 12 125 F.3d 1272, 1279–80 (9th Cir. 1997)). To support a mandatory preliminary injunction 13 for specific medical treatment, a plaintiff must demonstrate ongoing harm or the present 14 threat of irreparable injury, not a past injury. See Conn. v. Mass., 282 U.S. 660, 674 (1931) 15 (an injunction is only appropriate “to prevent existing or presently threatened injuries”); 16 Caribbean Marine, 844 F.2d at 674. Delays in necessary treatment and pain can constitute 17 irreparable harm. See Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004) (irreparable harm 18 includes delayed and/or complete lack of necessary treatment, and increased pain); 19 McNearney v. Wash. Dep’t of Corrs., No. C11-5930 RLB/KLS, 2012 WL 3545267, at *14 20 (W.D. Wash. June 15, 2012) (finding a likelihood of irreparable injury where the evidence 21 showed that the plaintiff continued to suffer unnecessary pain due to the defendants’ 22 inadequate treatment plan); Von Collin v. Cnty. of Ventura, 189 F.R.D. 583, 598 (C.D. Cal. 23 1989) (“[d]efendants do not argue that pain and suffering is not irreparable harm, nor could 24 they”). 25 NaphCare argues that Plaintiff cannot show irreparable harm because he “is being 26 treated consistently, repeatedly and adequately for his arthritic condition,” he has only 27 experienced mild joint pain and plaque breakouts on his knuckles and elbows, he is not 28 bedridden, and he is not communicating debilitating pain to his providers. (Doc. 49 at 11.) 1 The record does not support NaphCare’s argument. NaphCare has not followed the treating 2 specialist’s treatment recommendations or provided any effective alternative treatment. 3 Thus, Plaintiff has not been treated adequately. At Plaintiff’s last medical encounter, Dr. 4 Tok documented that Plaintiff had psoriasis on his hands and elbows, joint pain in his neck 5 and shoulders, and that his activities of daily living are moderately limited. (Doc. 49-2 at 6 31.) 7 Plaintiff asserts that he is subject to irreparable harm because his symptoms have 8 progressively worsened; he is deteriorating; he suffers severe joint pain, rashes, and 9 fatigue; at times he has been unable to stand or walk for significant periods of time; and 10 his pain is worsening. (Doc. 41 at 6–7, 18; Doc. 56 at 14.) 11 Plaintiff relies on Farnam v. Walker, which addressed a preliminary injunction 12 motion brought by a prisoner with cystic fibrosis. 593 F. Supp. 2d 1000, 1004–07 (C.D. 13 Ill. 2009). There, the plaintiff brought a lawsuit seeking specific treatment for his condition 14 after prison officials confiscated his “flutter valve” device used to clean his airways and 15 substituted Plaintiff’s prescription medication and fat-soluble vitamins with alternatives 16 that were harmful to the plaintiff and ineffective at treating his condition. Id. at 105–109. 17 The plaintiff saw a pulmonologist who specializes in cystic fibrosis and recommended that 18 the plaintiff receive the primary relevant protocols for cystic fibrosis treatment: an airway 19 clearance device, the inhaled form of an antibiotic, pancreatic enzymes, fat soluble 20 vitamins, and annual evaluations at a cystic fibrosis center. Id. at 1006–1010. After the 21 specialist issued his report with these recommendations, the plaintiff received everything 22 except an evaluation at a cystic fibrosis center “or any enforceable commitment that, once 23 he is seen at a Cystic Fibrosis Center, the recommendations of the Cystic Fibrosis Center 24 will be followed.” Id. at 1010. The district court found a risk of irreparable harm remained 25 because (1) the plaintiff demonstrated a likelihood of success on the merits, (2) he was only 26 provided with the relevant treatment protocols after appearance of counsel and the 27 specialist’s report, (3) the plaintiff still had not been established as a patient at a cystic 28 fibrosis center, (4) the defendants had not made an enforceable commitment to continue 1 providing necessary treatment after resolution of the case, (5) continuation of treatment 2 was not a reasonable assumption after the defendants’ past conduct, and (6) the defendants 3 still maintained that the plaintiff’s serious medical needs were being met and he had no 4 acute problem. Id. at 1013.4 5 This case presents a very similar scenario. Plaintiff has demonstrated a likelihood 6 of success on the merits and he has not been provided all the treatment recommended by 7 the treating specialist. NaphCare’s claim that Plaintiff was going to receive Yusimry as an 8 alternative to Enbrel came only after Plaintiff filed his Motion for Preliminary Injunction 9 and the Court ordered NaphCare to respond. (See Docs. 41, 42, 49.) Although NaphCare 10 asserts that Plaintiff is scheduled to see the rheumatologist next week, there is no evidence 11 to support this assertion. (Doc. 84.) In light of NaphCare’s prior conduct—failing to follow 12 Dr. Tok’s July 25 and October 21, 2024 orders and failing to follow through on their claim 13 that biologic injections would start on December 5, 2024—it is not reasonable to assume 14 that Plaintiff will see a specialist next week or that NaphCare will comply with the 15 specialist’s recommendations. 16 NaphCare maintains that Plaintiff’s serious medical needs are being met and that he 17 is not bedridden or at risk of death. (Doc. 49 at 11.) As discussed in Farnam, under the 18 Supreme Court’s holding in Helling v. McKinney, the Eighth Amendment “protects against 19 further harm” as well as current harm, and a prisoner-plaintiff does not have to wait for 20 something catastrophic to occur before being entitled to injunctive relief. 593 F. Supp. 2d 21 at 1012 (quoting 509 U.S. 25, 33 (1993)). Plaintiff does not have to wait until his 22 progressive rheumatoid arthritis worsens to the point of his being bedridden before he is 23 entitled to injunctive relief. Plaintiff has demonstrated worsening symptoms and pain as a 24 result of NaphCare’s poor treatment and its failure to follow the specialist’s treatment 25 recommendations. 26 27 4 NaphCare did not address Farnam or challenge Plaintiff’s reliance on the case. (See Doc. 49.) 28 1 Finally, Plaintiff argues that he has no adequate remedy at law to prevent irreparable 2 harm because money damages are an inadequate remedy for further damage and 3 debilitating symptoms caused by his condition. (Doc. 41 at 19.) See Farnam, 593 F. Supp. 4 2d at 1013 (stating that “[w]hether the plaintiff has an adequate remedy at law seems 5 substantially the same question as whether he will suffer irreparable injury,” and 6 concluding that “[m]oney hardly seems an adequate remedy . . . for significant pain and 7 suffering from increased symptoms”). NaphCare does not address this argument. (See 8 Doc. 49.) The Ninth Circuit has held that “the deprivation of [a prisoner’s] constitutional 9 right to adequate medical care is sufficient to establish irreparable harm.” Porretti, 11 10 F.4th at 1050 (quoting Edmo v. Corizon, Inc., 935 F.3d 757, 798) (9th Cir. 2019)); see 11 Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) (“[u]nlike monetary injuries, 12 constitutional violations cannot be adequately remedied through damages and therefore 13 generally constitute irreparable harm”), rev’d and remanded on other grounds, 562 U.S. 14 134 (2011). 15 For the above reasons, Plaintiff satisfies the second Winter element. 16 C. Balance of Equities/Public Interest 17 Courts “must balance the competing claims of injury and must consider the effect 18 on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 19 24 (quotation omitted). NaphCare insists that entering any injunctive relief order would 20 force it to “restructure[e] the procedures and policies for one single inmate and which could 21 result in security and safety breaches, inmate unrest and staffing issues[.]” (Doc. 49 at 12.) 22 But NaphCare also asserts that the treatment sought in Plaintiff’s motion has already 23 occurred or is underway. (Id.) NaphCare provides no evidence to support its fears of 24 security breaches and inmate unrest if it is ordered to provide adequate medical care. 25 Because an injunction would simply direct NaphCare do what it already claims to be doing, 26 there is no basis for such fears. Accordingly, the balance of equities tips sharply in 27 Plaintiff’s favor. 28 1 As noted above, “it is always in the public interest to prevent the violation of a 2 party’s constitutional rights.” Porretti, 11 F.4th at 1047. Moreover, “the public has a 3 strong interest in the provision of constitutionally-adequate health care to prisoners.” 4 McNearney, 2012 WL 3545267, at *16 (quoting Flynn v. Doyle, 630 F. Supp. 2d 987, 993 5 (E.D. Wis. 2009)); see Farnam, 593 F. Supp. 2d at 1017 (holding that the public had an 6 interest in the maintenance of prisoner’s health during the pendency of the lawsuit). Here, 7 it is in the public interest to ensure that Plaintiff receives constitutionally adequate health 8 care as prescribed by the treating specialist. Thus, the public interest weighs in favor of 9 granting an injunction. 10 D. Narrowly Tailored Relief 11 The PLRA requires any injunctive relief to be narrowly drawn and the least intrusive 12 means necessary to correct the harm. 18 U.S.C. § 3626(a)(2). 13 In his Motion, Plaintiff made five specific requests for relief: (1) to see Dr. Tok 14 within 14 days; (2) that all Dr. Tok’s orders and recommendations be promptly followed; 15 (3) the administration of Enbrel; (4) that Plaintiff receive physical therapy; and (5) that 16 Defendants be required to file notices of compliance every 30 days. (Doc. 41 at 1–2, 20.) 17 The Court will grant Plaintiff’s Motion as to the request to see Dr. Tok within 14 18 days. The Court recognizes the security concerns and reasons for withholding from 19 prisoners the exact dates and times of upcoming appointments. Therefore, the Court will 20 direct NaphCare to file a Notice, under seal, indicating the date of Plaintiff’s appointment 21 with Dr. Tok. Further, because a specialist appointment is meaningless if the specialist’s 22 treatment orders are not followed, the Court will also grant Plaintiff’s request for an order 23 directing NaphCare to comply with all Dr. Tok’s recommendations made at this 24 appointment. 25 As to Plaintiff’s request for Enbrel, Dr. Tok previously specified that a substitution 26 is allowed, specifically, an adalimumab biosimilar. (Doc. 81 at 7.) Because this order 27 incorporates a directive that NaphCare follow Dr. Tok’s medication and injection 28 recommendations made at the upcoming follow-up appointment, Plaintiff’s request for an 1 order for Enbrel will be denied. It follows, however, that if Dr. Tok prescribes Enbrel and 2 indicates that a substitute is no longer permitted, NaphCare must follow that 3 recommendation. 4 This order for relief is sufficiently narrow to satisfy the requirements of the PLRA. 5 E. Bond Requirement 6 Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a 7 preliminary injunction or a temporary restraining order only if the movant gives security 8 in an amount that the court considers proper to pay the costs and damages sustained by any 9 party found to have been wrongfully enjoined or restrained.” Despite this mandatory 10 language, “Rule 65(c) invests the district court with discretion as to the amount of security 11 required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (internal 12 quotation omitted). The district court may dispense with the filing of a bond when it 13 concludes there is no realistic likelihood of harm to the defendant from enjoining his or her 14 conduct. Id. 15 NaphCare has not requested a bond or submitted any evidence regarding likely 16 damages. It is also difficult to envision how NaphCare would incur compensable costs or 17 damages. Accordingly, the Court will waive the bond requirement. 18 IT IS ORDERED: 19 (1) The reference is withdrawn as to Plaintiff’s Motion for Leave to Supplement 20 Briefing (Doc. 81) and the Motion is granted. 21 (2) Plaintiff’s Motion for Preliminary Injunction (Doc. 41) is granted in part as 22 follows: 23 (a) Defendant NaphCare must immediately schedule Plaintiff for a 24 follow-up appointment at Dr. Tok’s office to occur within 14 days from the 25 date of this Order: 26 (b) Within 5 days of the date of this Order, Defendant NaphCare must 27 file a Notice, under seal, with the date of Plaintiff’s follow-up appointment 28 at Dr. Tok’s office. 1 (c) Defendant NaphCare must provide any treatment, medications, 2 procedures, injections, tests, therapy, and follow-up recommended by Dr. 3 Tok or one of her residents at the follow-up appointment. 4 (d) Within 10 days of Plaintiff's follow-up appointment with Dr. Tok, 5 Defendant NaphCare must file a Notice, supported by medical records and a 6 sworn statement from an official with personal knowledge, stating Dr. Tok’s 7 recommendations and the steps NaphCare is taking to follow the 8 recommendations. 9 (3) This relief is narrowly drawn, extends no further than necessary to correct 10 | the harm, and is the least intrusive means necessary to correct the harm. See 18 U.S.C. 11 | § 3626(a)(2). 12 (4) This Order shall remain in effect until further notice from the Court. 13 (5) Plaintiff is not required to post bond. 14 Dated this 4th day of April, 2025. 15

David G. Campbell 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 28 -23-