Fernando Navarro Hernandez v. James E. Dzurenda, et al.

• Court: District Court, D. Nevada
• Decided: November 7, 2025
• Docket: 3:24-cv-00001
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 FERNANDO NAVARRO HERNANDEZ, Case No. 3:24-cv-0001-ART-CLB 6 Plaintiff, ORDER 7 v.

8 JAMES E. DZURENDA, et al.,

9 Defendants.

11 Plaintiff Fernando Hernandez brings this civil rights action under 42 U.S.C. 12 § 1983 for events occurring while Plaintiff was housed at Ely State Prison (“ESP”). 13 (ECF No. 6.) Mr. Hernandez sues Defendants Nurse Erica Ceballos, Acting 14 Medical Director Dr. Joseph Benton, Dr. Barreti, Dr. Roxanne Bybee, NDOC 15 Administrator Pritchard (“Pritchard”), and Director of Nursing Michelle Perkins 16 (“Perkins”) (collectively, “Defendants”) for deliberate indifference to serious 17 medical needs based on the treatment of his neurological condition. (ECF No. 6.) 18 Mr. Hernandez also sues Defendants Pritchard and Perkins for deliberate 19 indifference related to his damaged nose tissue and dermatological condition. (Id.) 20 Before the Court is Plaintiff’s motion for a preliminary injunction, 21 requesting the Court order Defendants “to stop denying [Hernandez] 300 mg 22 Tegretol and 600 mg Neurontin, twice daily;” to “receive the recommended nasal 23 surgery;” and to relieve his “daily chest pain and shortness of breath and 24 symptom attacks.” (ECF No. 22 at 2, 19.) Defendants responded, (ECF No. 26), 25 and Mr. Hernandez replied, (ECF No. 34). On July 22, 2025, the magistrate judge 26 ordered Defendants to file supplemental briefing to address issues not thoroughly 27 developed by the response. (ECF No. 39.) Defendants filed their supplemental 28 1 brief, (ECF No. 45), and Mr. Hernandez replied. (ECF No. 49.) 2 United States Magistrate Judge Carla L. Baldwin has issued a Report and 3 Recommendation (“R&R”) (ECF No. 53) recommending denial of Plaintiff’s 4 preliminary injunction. Plaintiff filed an objection to that R&R after the deadline. 5 (ECF No. 61.) For the reasons identified below, the Court overrules Plaintiff’s 6 objection, affirms the R&R, and denies Plaintiff’s motion for a preliminary 7 injunction. (ECF No 22.) 8 I. Factual and Procedural Background 9 Upon review, the Court agrees with and adopts the magistrate judge’s 10 factual and procedural history (ECF No. 53 at 1-2) in full: 11 Mr. Hernandez is an inmate currently in the custody of Nevada Department 12 of Corrections (“NDOC”) and is currently housed at the Northern Nevada 13 Correctional Center (“NNCC”). Mr. Hernandez is classified as a medically stable 14 inmate with multiple medical conditions. (ECF Nos. 22 at 2-3, 26 at 1-2.) 15 Mr. Hernandez alleges he suffers from a chronic neurological condition that 16 causes “partial seizures, symptoms, and . . . severe neuropathic pain disorder 17 attacks.” (ECF No. 22 at 2.) In short, he alleges for years NDOC prescribed him 18 300mg Tegretol and 600mg of Neurontin, twice daily, for his symptoms but in 19 2022, Defendants revoked the prescription without cause. (Id. at 2-7) He alleges 20 he was not treated for 13 months and since December 2023, NDOC doctors have 21 prescribed different medications that have not addressed his symptoms. (Id.) He 22 acknowledges he now receives some Tegretol but not Neurontin and he continues 23 to have “daily severe spasms activity attacks” and other symptoms. (Id.) 24 Defendants assert that in 2022, NDOC moved away from the general practice of 25 prescribing Neurontin due to its high trade value in the prison setting as a drug 26 that can create a euphoric effect. (ECF No. 45.) Defendants state Mr. Hernandez 27 continues to receive treatment to address his neurological condition and that an 28 electroencephalogram (“EEG”) would take place within 45 days of the date of their 1 supplemental brief, which was filed on August 5, 2025. (Id.) Mr. Hernandez 2 received the EEG on August 27, 2025. (ECF No. 61 at 3.) 3 In addition to his neurological condition, Mr. Hernandez also alleges he 4 suffers from a growth in his nose that he asserts is cancerous. (ECF No. 22 at 7- 5 10.) Mr. Hernandez alleges he was told by NDOC doctors he needed surgery and 6 was referred to an ENT specialist to address the “tumor”, but Defendants have 7 not scheduled his surgery. (Id.) He states the tumor causes him constant pain, 8 bleeding, and a rotten smell and alleges he has not received treatment since July 9 2024. (Id.) In supplemental briefing, Defendants acknowledge the need for 10 surgery of this growth and note the surgery is scheduled to occur within 60 days 11 of the date of their supplemental briefing. (ECF No. 45.) Mr. Hernandez confirmed 12 in his objection that he is scheduled for surgery on a day between September 17 13 and September 19, 2025. (ECF No. 61.) 14 Finally, Mr. Hernandez alleges he has significant heart issues dating back 15 to a 2003 heart attack. (ECF No. 22 at 10-13.) In his complaint he alleged 16 Defendants have failed to address many symptoms he continues to feel such as 17 high blood pressure, chest pain, loss of taste, and dizziness and have not 18 permitted him to see a cardiologist. (Id.) 19 II. Legal Standard 20 A. Preliminary Injunction 21 A party seeking a preliminary injunction must demonstrate (1) a likelihood 22 of success on the merits, (2) a likelihood of irreparable harm if preliminary relief 23 is not granted, (3) the balance of equities is in their favor, and (4) an injunction 24 is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 25 U.S. 7, 20 (2008). 26 A plaintiff who seeks a mandatory injunction—one that goes beyond simply 27 maintaining the status quo during litigation—bears a “doubly demanding” 28 burden: “[he] must establish that the law and facts clearly favor [his] position, 1 not simply that [he] is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 2 (9th Cir. 2015) (en banc). The Ninth Circuit has cautioned that mandatory 3 injunctions are “particularly disfavored” and “should not issue in doubtful cases.” 4 Id. (internal quotations omitted). 5 The Prison Litigation Reform Act (“PLRA”) similarly instructs that any 6 restraining order or preliminary injunction granted with respect to prison 7 conditions “must be narrowly drawn, extend no further than necessary to correct 8 the harm the court finds requires preliminary relief, and be the least intrusive 9 means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Thus, section 10 3626(a)(2) limits the Court’s power to grant preliminary injunctive relief to 11 inmates. Gilmore v. California, 220 F.3d 987, 998 (9th Cir. 2000). “Section 12 3626(a)(2) . . . operates simultaneously to restrict the equity jurisdiction of federal 13 courts and to protect the bargaining power of prison administrators — no longer 14 may courts grant or approve relief that binds prison administrators to do more 15 than the constitutional minimum.” Id. at 999. 16 Where the motion for preliminary injunction is related to new allegations 17 of misconduct—distinct from the allegations at issue in the complaint—such a 18 motion must be denied. See, e.g., Padilla v. Nevada, No. 2:08-cv-410-LRH-RAM, 19 2011 WL 2746653, at *8 (D. Nev. June 3, 2011) (denying request for preliminary 20 injunction unrelated to claims in the complaint); Mitchell v. Haviland, No. 2:09- 21 cv-3012-JAM-KJN, 2014 WL 458218, at *2 (E.D. Ca. February 4, 2014) (denying 22 motion for preliminary injunction where the conduct asserted in the motions is 23 based on new assertions of misconduct unrelated to the acts of misconduct 24 asserted in the complaint); Burton v. Paramo, No. 3:17-cv-1953-BEN-KSC, 2017 25 WL 6048805, at *4 (S.D. Ca. Dec. 5, 2017) (denying motion for preliminary 26 injunction seeking injunction claimed retaliation for bringing underlying lawsuit 27 because those acts were separate from claims asserted within the complaint 28 itself.) 1 A preliminary injunction is an extraordinary remedy never awarded as of 2 right. Winters, 555 U.S. at 24. Therefore, as a threshold matter, the court lacks 3 authority to issue injunctive relief when there is no “relationship between the 4 injury claimed in the motion for injunctive relief and the conduct asserted in the 5 underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 6 F.3d 631, 636 (9th Cir. 2015) (citing Devose v. Herrington, 42 F.3d 470, 471 (8th 7 Cir. 1994)). Thus, the moving party must establish there is a sufficient nexus 8 between the claims raised by the injunctive relief motion and the conduct 9 asserted in the underlying complaint. Id. 10 B. Review of Reports and Recommendations 11 Under the Federal Magistrates Act, a court “may accept, reject, or modify, 12 in whole or in part, the findings or recommendations made by [a] magistrate 13 judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's 14 report and recommendation, then the court is required to “make a de 15 novo determination of those portions of the [report and recommendation] to which 16 objection is made.” 28 U.S.C. § 636(b)(1). A court is not required to conduct “any 17 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 18 Arn, 474 U.S. 140, 149 (1985). Mr. Hernandez objected to the R&R. (ECF No. 6.) 19 Therefore, the Court reviews the R&R de novo. 20 III. Analysis 21 In his objection, Mr. Hernandez notes that he did not receive the R&R until 22 September 10, 2025, after the deadline to object, because he was in the hospital. 23 (ECF No. 61 at 2.) The Court sua sponte grants Mr. Hernandez an extension of 24 time to file his objection and will consider it timely filed. Mr. Hernandez objects 25 to the R&R first, on the basis that he met the subjective standard for an Eighth 26 Amendment violation for deliberate indifference in regard to the denial of 27 Neurontin, an anti-seizure medication, and second, that he faced an unnecessary 28 delay in the approval of surgery for his nasal growth. (ECF No. 61.) 1 a. Neurological Medication 2 The magistrate judge recommends denying the motion for preliminary 3 injunction because it does not meet the standard of a mandatory injunction. That 4 motion requests that the Court order Defendants to reinstate Mr. Hernandez’s 5 previous prescription of “300 mg Tegretol and 600 mg Neurontin, twice daily” to 6 address his neurological symptoms. The magistrate judge found that while Mr. 7 Hernandez met the objective prong of the deliberate indifference analysis, he did 8 not meet the subjective prong nor the showing for irreparable harm. (ECF No. 53) 9 Mr. Hernandez objects to this recommendation on the grounds that he has 10 met the subjective prong of the deliberate indifference analysis. (ECF No. 61 at 11 4.) He argues that that the alternative treatment options he was provided were 12 an “obvious failure” as evidenced by continued seizures, symptoms, and pain and 13 were therefore medically unacceptable. (Id.) 14 Mr. Hernandez is requesting a mandatory injunction because he is asking 15 for an order for a party to take an action. See Marlyn Nutraceuticals, Inc. v. Mucos 16 Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (“This relief is treated as 17 a mandatory injunction, because it ‘orders a responsible party to ‘take action.’”) 18 (citation omitted). Because Mr. Hernandez objects to the magistrate judge’s 19 analysis of the subjective prong of the deliberate indifference standard, the Court 20 will focus its analysis there. 21 i. Deliberate Indifference Subjective Standard 22 To establish that a difference of opinion amounts to deliberate indifference, 23 a prisoner “must show that the course of treatment the doctors chose was 24 medically unacceptable under the circumstances” and “that they chose this 25 course in conscious disregard of an excessive risk to [the prisoner’s] health.” See 26 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other 27 grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014)); see also 28 Sandoval v. Cnty. of San Diego, 985 F.3d 657, 679 (9th Cir. 2021) (“Our cases 1 make clear that prison officials violate the Constitution when they ‘deny, delay or 2 intentionally interfere’ with needed medical treatment. . . . The same is true when 3 prison officials choose a course of treatment that is ‘medically unacceptable 4 under the circumstances.’”) (internal citations omitted)), cert. denied sub nom. 5 San Diego Cnty. v. Sandoval, 142 S. Ct. 711 (2021). Typically, a difference of 6 opinion between the physician and the prisoner concerning the appropriate 7 course of treatment does not amount to deliberate indifference to serious medical 8 needs. See Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019); Hamby v. 9 Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016); Toguchi v. Chung, 391 F.3d 1058 10 (9th Cir. 2004); Franklin v. Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 11 1981). 12 “[S]tate prison authorities have wide discretion regarding the nature and 13 extent of medical treatment.” Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986), 14 overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 15 2014) (en banc). “Deliberate indifference is a high legal standard. A showing of 16 medical malpractice or negligence is insufficient to establish a constitutional 17 deprivation under the Eighth Amendment” Hamby, 821 F.3d at 1092 (internal 18 quotation marks and citation omitted).). 19 Due to the urgency of obtaining a preliminary injunction at a point when 20 there has been limited factual development, the rules of evidence do not apply 21 strictly to preliminary injunction proceedings. Herb Reed Enterprises, LLC v. 22 Florida Entm't Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013) (citing 23 Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988) (“It was 24 within the discretion of the district court to accept ... hearsay for purposes of 25 deciding whether to issue the preliminary injunction.”)). 26 Mr. Hernandez cites Nall v. Adamson for the proposition that Ms. Cass’s 27 Declaration, stating that NDOC is moving away from the prescription of 28 Neurontin because it has “high trade value,” is not credible. No. 3:19-cv-0054- 1 MMD-CLB, 2021 WL 5541932 (D. Nev. 2021); (ECF No. 45 at 2-3.) In that case, 2 the Court denied the defendants’ motion for summary judgment on the plaintiff’s 3 Eighth Amendment deliberate indifference claim because they did not offer any 4 reason for the discontinuance of Neurontin as a formulary throughout NDOC, 5 which resulted in the plaintiff’s increased symptomatic pain. Id. at *4. This legal 6 conclusion is not a finding that the plaintiff’s Eighth Amendment rights were 7 violated, but that there was a genuine dispute of material fact. This does not 8 demonstrate a likelihood of success on the merits that is necessary for the 9 mandatory injunction that Mr. Hernandez seeks. This case is also 10 distinguishable: here, Neurontin is not being categorically denied to all patients 11 but is discouraged as a formulary with preferences for alternatives. (See ECF No. 12 45.) 13 Mr. Hernandez also argues that Defendants failed to quickly replace his 14 Neurontin with a new medication to treat his seizures. (ECF No. 61.) The record 15 reflects that Defendants has made consistent attempts to treat Mr. Hernandez 16 after changing his prescription, including providing alternative medications and 17 an EEG. (ECF No. 45 at 3, 47-1.) The record does not reflect that the treatment 18 Mr. Hernandez is receiving is medically unacceptable under the circumstances. 19 The Court therefore agrees with the magistrate judge’s conclusions. 20 b. Nasal Growth 21 The magistrate judge also recommends that Mr. Hernandez’s motion for a 22 preliminary injunction in regard to receiving a recommended nasal surgery be 23 denied it is moot, because the Defendants represented to the Court that Mr. 24 Hernandez was seen by a specialist that recommended surgery, and that the 25 procedure was authorized and scheduled to occur within sixty days of July 2, 26 2025. (ECF No. 53 at 12.) Mr. Hernandez objects that Defendants could have 27 approved the procedure back in September 2023, and therefore his rights were 28 violated. (ECF No. 61 at 8.) 1 The Court agrees with the magistrate judge that Mr. Hernandez’s request 2 || for surgery is moot. A case is moot when it has “lost its character as a present, 3 || live controversy of the kind that must exist if [the court is] to avoid advisory 4 || opinions on abstract propositions of law.” Oregon v. FERC, 636 F.3d 1203, 1206 5 || (9th Cir. 2011) (per curiam). A motion for a preliminary injunction can therefore 6 || be moot where the relief requested has been obtained. See DeFunis v. Odegaard, 7 || 416 U.S. 312 (1974) (holding that case was moot where plaintiff was afforded the 8 || remedy requested). The record demonstrates Defendants are actively working to 9 || provide Mr. Hernandez with the proper medical treatment for the nasal growth 10 || and will provide the surgery in due course. 11 IV. Conclusion 12 It is therefore ordered that Plaintiff's objection to Judge Baldwin’s Report 13 || and Recommendation (ECF No. 61) is OVERRULED. 14 It is further ordered that Judge Baldwin’s Report and Recommendation 15 || recommending denial of Plaintiffs motions for a preliminary injunction and 16 || temporary restraining order (ECF No. 53) is AFFIRMED. 17 It is further ordered that Plaintiff's motion for a preliminary injunction (ECF 18 || No. 22) is DENIED. 19 20 Dated this 7 day of November, 2025. 21 22 Ara jlosead Jen 23 ANNE R. TRAUM 24 UNITED STATES DISTRICT JUDGE 25 26 27 28