Dent v. Viever

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 BENJAMIN DENT, ) 4 ) Plaintiff, ) Case No.: 2:20-cv-00136-GMN-EJY 5 vs. ) ) ORDER 6 MICHAEL VIEVER, et al., ) 7 ) Defendants. ) 8 )

9 10 Pending before the Court is Plaintiff Benjamin Dent’s Motion for Preliminary 11 Injunction, (ECF No. 29).1 Defendants Michael Viever, Gregory Bryan, and Brian Williams 12 (collectively, “Defendants”) filed a Response, (ECF No. 5), and Plaintiff filed a Reply, (ECF 13 No. 10). 14 On March 18, 2020, Plaintiff submitted an Application for Leave to Proceed in forma 15 pauperis (“IFP”), (ECF No. 12). On September 1, 2020, while the IFP was still pending, 16 Plaintiff filed a second Motion for Preliminary Injunction, (ECF No. 16). Defendants filed a 17 Response, (ECF No. 19), and Plaintiff filed a Reply, (ECF No. 27). The matter of the filing fee 18 has been temporarily deferred while the Court rules on the Motions for Preliminary Injunction. 19 Also pending before the Court is Plaintiff’s Motion to Take Action, (ECF No. 13), 20 regarding Plaintiff’s first Motion for Preliminary Injunction, (ECF No. 29). The Court declared 21 that Defendants need not respond to the Motion to Take Action. (See Order, ECF No. 15). 22 23 24 25 1 The Complaint was initially received as an exhibit to initiating documents on January 17, 2020. (See Compl., Ex. 1 to Receipt of Initiating Documents, ECF No. 1-1). The same Complaint was docketed as its own entry on October 15, 2020, following the Undersigned’s Screening Order, (ECF No. 28). 1 Also pending before the Court is Defendants’ Motion for Clarification regarding 2 Plaintiff’s Motion for Preliminary Injunction, (ECF No. 17). 3 Also Pending before the Court is Defendants’ Motion for Leave to File Exhibits to 4 Supplemental Response to Motion for Temporary Restraining Order Under Seal, (ECF No. 25). 5 For the reasons discussed below, the Court DENIES Plaintiff’s Motions for Preliminary 6 Injunction. Further, the Court DENIES as moot Plaintiff’s Motion to Take Action and 7 Defendants’ Motion for Clarification. The Court GRANTS Defendants’ Motion for Leave to 8 File Exhibits Under Seal. 9 I. BACKGROUND 10 This case arises from Defendants’ alleged failure to provide medical treatment to 11 Plaintiff while he is incarcerated at High Desert State Prison. (See generally Mot. Prelim. Inj. 12 (“First Mot. P.I.”), ECF No. 29). Plaintiff contends that after receiving leg surgery for 13 compartment syndrome on or about January 6, 2020, his physician prescribed him “intense 14 physical therapy” to better his chances of walking again. (Id. at 5); (Resp. Mot. Prelim. Inj. 15 (“Resp.”) 2:15, ECF No. 5). However, Plaintiff alleges that Defendants “refuse to order 16 transport” to physical therapy appointments, and instead, order him to “do exercise” on his 17 own. (First Mot. P.I. at 5). Plaintiff claims that he is unable to walk and confined to a 18 wheelchair, and that while Defendants provide him with pain medication, they are leaving the 19 underlying issue untreated. (Id. at 4). 20 Defendants claim that the Nevada Department of Corrections approved two visits to an 21 out-of-facility physical therapist for Plaintiff. (Resp. 2:17–21). On March 27, 2019, Plaintiff 22 was transported to Summerlin Hospital Outpatient Rehabilitation, where he was examined by

23 Rithea Vong (“Mr. Vong”). (Id. 2:21–25). Defendants assert that Mr. Vong provided Plaintiff 24 with a physical therapy regimen that could be completed in his cell two to three times per week 25 for twelve weeks. (Id.). However, the medical records provided by Defendant concerning this 1 appointment indicate that Mr. Vong additionally prescribed Plaintiff electrical stimulation and 2 manual therapy three times per week for four weeks. (See Ex. A to Resp., at 11, ECF No. 6-2). 3 On May 29, 2020, Plaintiff was transported to a physical therapy appointment at MML 4 Physical Therapy, where he was evaluated by Karen Crawford (“Ms. Crawford”). (See Suppl. 5 Resp. Mot. Emergency Inj. (“Suppl. Resp.”) 3:6–7, ECF No. 19); (Reply Suppl. Resp. 6 (“Reply”) at 1, ECF No. 27). Plaintiff claims that Ms. Crawford gave him exercises to 7 complete “until we get you back in for your next session.” (Reply at 1). Defendants counter 8 that Ms. Crawford only needed to see Plaintiff one time and gave him a physical therapy 9 regimen that could be completed entirely on his own in his cell. (Suppl. Resp. 3:13–19); (Ex. A 10 to Suppl. Resp., at 3–5, ECF No. 19-2). 11 II. LEGAL STANDARD 12 Preliminary injunctions are governed by Rule 65 of the Federal Rules of Civil 13 Procedure, which provides that a “court may issue a preliminary injunction only on notice to 14 the adverse party.” Fed. R. Civ. P. 65(a)(1). 15 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never 16 awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 (2008). “A 17 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the 18 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 19 balance of equities tips in his favor, and that an injunction is in the public interest.” Am. 20 Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 21 Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act (“PLRA”), 22 preliminary injunctive relief must be “narrowly drawn,” must “extend no further than necessary

23 to correct the harm,” and must be “the least intrusive means necessary to correct the harm.” 18 24 U.S.C. § 3626(a)(2). 25 1 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and 2 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and 3 decency.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth 4 Amendment when he acts with “deliberate indifference” to the serious medical needs of 5 an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment 6 violation, a plaintiff must satisfy both an objective standard—that the deprivation was serious 7 enough to constitute cruel and unusual punishment—and a subjective standard—deliberate 8 indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). 9 To establish the first prong, “the plaintiff must show a serious medical need by 10 demonstrating that failure to treat a prisoner’s condition could result in further significant injury 11 or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 12 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff 13 must show “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical 14 need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison 15 officials deny, delay or intentionally interfere with medical treatment, or it may be shown by 16 the way in which prison physicians provide medical care.” Id. (internal quotations omitted). 17 When a prisoner alleges that delay of medical treatment evinces deliberate indifference, 18 the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State 19 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, 20 without more, is insufficient to state a claim of deliberate medical indifference”). 21 III. DISCUSSION 22 In the present case, Plaintiff seeks injunctive relief “to have [a] chance at walking again

23 in some capacity.” (Mot. Prelim. Inj. (“Second Mot. P.I.”) at 1, ECF No. 16). Specifically, 24 Plaintiff alleges that he needs consistent out-of-facility physical therapy and that Defendants 25 refuse to transport him to these appointments. (See First Mot. P.I. at 5); (Second Mot. P.I. at 1). 1 Defendants counter that they need not transfer Plaintiff to out-of-facility appointments because 2 he can complete his physical therapy regimen in his cell. (See Resp. 4:4–6); (Suppl. Resp. 3 4:13–20). 4 To be granted a preliminary injunction, Plaintiff must first show that he is likely to 5 succeed on the merits of his claim by demonstrating deliberate indifference to a serious medical 6 need. See Farmer, 511 U.S. at 828. The Court fist assesses whether Plaintiff’s medical 7 condition is “serious.” Examples of conditions that are “serious” in nature include “an injury 8 that a reasonable doctor or patient would find important and worthy of comment or treatment; 9 the presence of a medical condition that significantly affects an individual’s daily activities; or 10 the existence of chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059–60 11 (9th Cir. 2012); see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting 12 McGuckin, and finding that an inmate whose jaw was broken and mouth was wired shut for 13 several months demonstrated a serious medical need). 14 The Court determines that Plaintiff does demonstrate a serious medical need. A 15 reasonable doctor would find that the inability to walk would constitute an injury “worthy of 16 comment or treatment” that, in addition, would continue “the existence of chronic and 17 substantial pain.” See McGuckin, 974 F.2d at 1059. Further, confinement to a wheelchair 18 certainly “affects an individual’s daily activities.” Id. 19 However, even if Plaintiff suffers from a serious medical need, he still must establish 20 Defendants’ deliberate indifference. A prison physician is not deliberately indifferent to an 21 inmate’s serious medical need by merely prescribing a different method of treatment than 22 requested by the inmate. See McGuckin, 974 F.2d at 1059 (explaining that negligence in

23 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 24 Amendment rights); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (holding that a 25 difference of opinion regarding the best course of medical treatment does not amount to 1 deliberate indifference); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (holding that 2 a difference of opinion between a prisoner-patient and medical staff regarding treatment is not 3 cognizable under § 1983). To establish that a difference of opinion has actually risen to the 4 level of deliberate indifference, the inmate “must show that the course of treatment the doctors 5 chose was medically unacceptable under the circumstances” and that the course of treatment 6 was chosen “in conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson v. 7 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 8 Here, the medical records initially submitted by Defendants indicate that Mr. Vong 9 prescribed Plaintiff physical therapy that would need to be completed out-of-facility, such as 10 electrical stimulation and manual therapy. (See Ex. A to Resp., at 11). Nonetheless, Plaintiff 11 has not shown that the first-prescribed therapy is essential to preserve his ability to walk 12 because Ms. Crawford later prescribed a treatment plan that he could complete in his cell. (See 13 Ex. A to Suppl. Resp., at 5) (instructing Plaintiff “in the independent performance of a home 14 exercise program”). 15 While an at-home regimen is different than the treatment plan requested by Plaintiff, it is 16 not “medically unacceptable under the circumstances” because a licensed physical therapist 17 provided Plaintiff with an at-home regimen “that addresses the problems and achieve[s] the 18 goals outlined in [Plaintiff’s] plan of care.” See Jackson, 90 F.3d at 332; (Ex. A to Suppl. 19 Resp., at 5). Moreover, the conflict between Plaintiff’s request for out-of-facility physical 20 therapy and the provided at-home regimen amounts to a difference of opinion regarding the 21 course of treatment, which does not demonstrate deliberate indifference. See Sanchez, 891 F.2d 22 at 242. Therefore, Plaintiff has not met his burden to show he will suffer irreparable harm if he

23 is not transported to out-of-facility physical therapy appointments because the medical evidence 24 in the record suggests that Plaintiff can complete therapy in his cell sufficient to enable him to 25 walk. Accordingly, the Court denies Plaintiff’s Motions for Preliminary Injunction. 1 IV. CONCLUSION 2 IT IS HEREBY ORDERED that Plaintiff’s Motion for Preliminary Injunction, (ECF 3 No. 29), is DENIED. 4 IT IS FURTHER ORDERED that Plaintiff’s Motion for Preliminary Injunction, (ECF 5 No. 16), is DENIED. 6 IT IS FURTHER ORDERED that Plaintiff’s Motion to Take Action re Plaintiff’s 7 Emergency Request for Injunction, (ECF No. 13), is DENIED as moot. 8 IT IS FURTHER ORDERED that Defendants’ Motion for Clarification re Plaintiff’s 9 Motion for Preliminary Injunction, (ECF No. 17), is DENIED as moot. 10 IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File Exhibits to 11 Supplemental Response to Motion for Temporary Restraining Order Under Seal, (ECF No. 25), 12 is GRANTED.2 13 DATED this __3___ day of November, 2020. 14 15 ___________________________________ Gloria M. Navarro, District Judge 16 United States District Court 17 18 19 20 21 22 23

24 2 Defendants filed a Motion to File Exhibits Under Seal, (ECF No. 25), asserting that the Declaration of Gregory 25 Bryan, M.D. and Exhibit A to their Supplemental Response, (ECF No. 19), contain Plaintiff’s confidential and sensitive medical information. (Mot. Seal 3:4–11, ECF No. 25). The Court finds that good cause exists to seal these documents and grants Defendants’ Motion to File Exhibits Under Seal.