1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Francis, No. CV-22-02071-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 Plaintiff James Francis, who is currently confined in the Arizona State Prison 16 Complex (ASPC)-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 17 1983. Before the Court is Plaintiff’s Motion to Compel (Doc. 30), which the Court 18 construes as a Motion seeking injunctive relief. 19 I. Background 20 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 21 Eighth Amendment medical care claims against Defendants Naphcare, Centurion, Shinn, 22 Stewart, and Thomas based on Plaintiff’s allegations relating to deliberate indifference in 23 the treatment of Plaintiff’s urological cancer. (Doc. 5.) 24 On January 23, 2023, the Court granted a preliminary injunction in favor of Plaintiff 25 as follows: (a) Defendants must ensure that Plaintiff undergoes a 26 cystoscopy of his bladder mass within ten (10) days of the date 27 of this Order. (b) Within fifteen (15) days of the date of this Order, 28 Defendants must file a Notice indicating that Plaintiff received the cystoscopy and attach a copy of the medical record 1 documenting the results of the cystoscopy. 2 (c) Defendants must immediately provide any treatment or follow up recommended by the offsite specialist. 3 (Doc. 19 at 14-15.) Defendants have since filed Notices with the Court indicating the 4 current status of Plaintiff’s medical care. (Docs. 23, 24, 31, 42.) 5 II. Motion to Compel 6 In his Motion to Compel, Plaintiff asserts that during his March 3, 2023 7 appointment, the urologist told him that he needed immediate treatment for his cancer, but 8 treatment was being delayed by NaphCare and non-Defendant Nurse Practitioner (NP) 9 Adams. Plaintiff asserted that: (1) NaphCare told the doctor not to tell Plaintiff about his 10 findings concerning Plaintiff’s cancer, but the doctor told him anyway; (2) Naphcare 11 denied Plaintiff unidentified pain medication recommended by the urologist; (3) NP Adams 12 refuses to approve a special needs order that allows Plaintiff to wear his tennis shoes to his 13 medical appointments; and (4) Naphcare and NP Adams refuse to give Plaintiff medical 14 lay-in meal trays while he is undergoing cancer treatment. (Doc. 30.) 15 After Plaintiff filed his Motion to Compel, the Court issued an Order requiring a 16 response to the Motion to Compel as follows: 17 Defendants filed the required urgent status update as 18 directed by the Court’s February 28, 2023 Order (Doc. 28). 19 The most recent status report confirmed Plaintiff’s diagnosis of “high grade bladder cancer” (Doc. 31-1 at 4). The 20 urologist’s notes also reflect Plaintiff should return for follow 21 up in one to two months and will likely require a second transurethral resection of a bladder tumor (“TURBT”) 22 procedure in which the surgeon will administer Mitomycin 23 (chemotherapy). Clearly, Plaintiff’s condition is serious and will require long-term treatment. Defendants’ next status 24 report will be due no later than noon on Wednesday, April 12, 2023. In that update, Defendants must provide notes and 25 records from any intervening appointment or treatment and a 26 copy of the pathology report from Plaintiff’s cystoscopies. Defendants must also indicate what treatment Plaintiff is being 27 provided for pain management. 28 . . . . [In Response to the Motion to Compel,] Defendants 1 must specifically address what supportive treatment is being 2 provided to Plaintiff (pain management, lay-in privileges, supportive clothing and footwear, etc.), and if any treatment 3 Plaintiff has not been provided, explain why the treatment is 4 not being provided. Defendants must also discuss their policy prohibiting outside treating physicians from discussing a 5 patient’s recommended treatment plan or medication (Doc. 31- 6 1 at 7). 7 (Doc. 32.)1 8 In Response to Plaintiff’s Motion, Defendants assert that Plaintiff is being provided 9 lay-in trays, he was recently prescribed Tramadol and is currently on Acetaminophen 500 10 mg and did not raise any issues with his medications during his recent appointment with 11 NP Adams, he has “no duty” and “no work” orders in place, and he has prescription shoes 12 and inserts. (Doc. 38.) Defendants further assert that Plaintiff can obtain his medical 13 records and Naphcare does not prohibit specialists from discussing a prisoner’s care with 14 the prisoner, but rather advise doctors to not allow prisoners to overhear conversations 15 regarding care, recommended appointments, etc., and the medical records confirm that the 16 specialists do discuss prisoners’ treatment with them. Defendants finally assert that 17 Plaintiff’s next TURBT procedure was scheduled for the last week of April 2023. 18 In Reply, Plaintiff asserts that NP Adams refuses to provide him medical lay-in 19 trays, and Plaintiff was not receiving medical lay-in trays as of March 31, 2023. (Doc.41.) 20 Plaintiff further asserts that the urologist wanted Plaintiff back quickly to “deal with 21 the cancer mass on this bladder” and said that Plaintiff needed a biopsy. 22 Plaintiff finally asserts that he raised the issue that he needed “stronger pain 23 medication” and NP Adams denied his request, and, although he was prescribed medical
24 25 1 In his Reply in support of his Motion, Plaintiff raises an issue for the first time relating to seeing a cancer surgeon for removal of stitches in his left ear. Because 26 Defendants have not been given a proper opportunity to respond to Plaintiff’s allegations 27 regarding this assertion, this issue is not properly before the Court. Moreover, this issue appears to be unrelated to the claims alleged in Plaintiff’s operative Complaint and appears 28 to be asserted against non-Defendant Adams, so it appears that at this time, the Court lacks jurisdiction to grant Plaintiff any relief in relation to this issue. 1 tennis shoes and inserts, NP Adams “continues to delay” Plaintiff’s medical tennis shoes 2 and inserts. 3 A. Legal Standard 4 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 5 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 6 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 7 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 8 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 9 never awarded as of right”). Nonetheless, “federal courts must not shrink from their 10 obligation to enforce the constitutional rights of all persons, including prisoners” and must 11 not “allow constitutional violations to continue simply because a remedy would involve 12 intrusion into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037, 13 1047 (9th Cir. 2021) (citation omitted). 14 A plaintiff seeking injunctive relief under Rule 65 of the Federal Rules of Civil 15 Procedure must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer 16 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 17 favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, 18 Inc., 555 U.S. 7, 20 (2008).
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1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Francis, No. CV-22-02071-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 Plaintiff James Francis, who is currently confined in the Arizona State Prison 16 Complex (ASPC)-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 17 1983. Before the Court is Plaintiff’s Motion to Compel (Doc. 30), which the Court 18 construes as a Motion seeking injunctive relief. 19 I. Background 20 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 21 Eighth Amendment medical care claims against Defendants Naphcare, Centurion, Shinn, 22 Stewart, and Thomas based on Plaintiff’s allegations relating to deliberate indifference in 23 the treatment of Plaintiff’s urological cancer. (Doc. 5.) 24 On January 23, 2023, the Court granted a preliminary injunction in favor of Plaintiff 25 as follows: (a) Defendants must ensure that Plaintiff undergoes a 26 cystoscopy of his bladder mass within ten (10) days of the date 27 of this Order. (b) Within fifteen (15) days of the date of this Order, 28 Defendants must file a Notice indicating that Plaintiff received the cystoscopy and attach a copy of the medical record 1 documenting the results of the cystoscopy. 2 (c) Defendants must immediately provide any treatment or follow up recommended by the offsite specialist. 3 (Doc. 19 at 14-15.) Defendants have since filed Notices with the Court indicating the 4 current status of Plaintiff’s medical care. (Docs. 23, 24, 31, 42.) 5 II. Motion to Compel 6 In his Motion to Compel, Plaintiff asserts that during his March 3, 2023 7 appointment, the urologist told him that he needed immediate treatment for his cancer, but 8 treatment was being delayed by NaphCare and non-Defendant Nurse Practitioner (NP) 9 Adams. Plaintiff asserted that: (1) NaphCare told the doctor not to tell Plaintiff about his 10 findings concerning Plaintiff’s cancer, but the doctor told him anyway; (2) Naphcare 11 denied Plaintiff unidentified pain medication recommended by the urologist; (3) NP Adams 12 refuses to approve a special needs order that allows Plaintiff to wear his tennis shoes to his 13 medical appointments; and (4) Naphcare and NP Adams refuse to give Plaintiff medical 14 lay-in meal trays while he is undergoing cancer treatment. (Doc. 30.) 15 After Plaintiff filed his Motion to Compel, the Court issued an Order requiring a 16 response to the Motion to Compel as follows: 17 Defendants filed the required urgent status update as 18 directed by the Court’s February 28, 2023 Order (Doc. 28). 19 The most recent status report confirmed Plaintiff’s diagnosis of “high grade bladder cancer” (Doc. 31-1 at 4). The 20 urologist’s notes also reflect Plaintiff should return for follow 21 up in one to two months and will likely require a second transurethral resection of a bladder tumor (“TURBT”) 22 procedure in which the surgeon will administer Mitomycin 23 (chemotherapy). Clearly, Plaintiff’s condition is serious and will require long-term treatment. Defendants’ next status 24 report will be due no later than noon on Wednesday, April 12, 2023. In that update, Defendants must provide notes and 25 records from any intervening appointment or treatment and a 26 copy of the pathology report from Plaintiff’s cystoscopies. Defendants must also indicate what treatment Plaintiff is being 27 provided for pain management. 28 . . . . [In Response to the Motion to Compel,] Defendants 1 must specifically address what supportive treatment is being 2 provided to Plaintiff (pain management, lay-in privileges, supportive clothing and footwear, etc.), and if any treatment 3 Plaintiff has not been provided, explain why the treatment is 4 not being provided. Defendants must also discuss their policy prohibiting outside treating physicians from discussing a 5 patient’s recommended treatment plan or medication (Doc. 31- 6 1 at 7). 7 (Doc. 32.)1 8 In Response to Plaintiff’s Motion, Defendants assert that Plaintiff is being provided 9 lay-in trays, he was recently prescribed Tramadol and is currently on Acetaminophen 500 10 mg and did not raise any issues with his medications during his recent appointment with 11 NP Adams, he has “no duty” and “no work” orders in place, and he has prescription shoes 12 and inserts. (Doc. 38.) Defendants further assert that Plaintiff can obtain his medical 13 records and Naphcare does not prohibit specialists from discussing a prisoner’s care with 14 the prisoner, but rather advise doctors to not allow prisoners to overhear conversations 15 regarding care, recommended appointments, etc., and the medical records confirm that the 16 specialists do discuss prisoners’ treatment with them. Defendants finally assert that 17 Plaintiff’s next TURBT procedure was scheduled for the last week of April 2023. 18 In Reply, Plaintiff asserts that NP Adams refuses to provide him medical lay-in 19 trays, and Plaintiff was not receiving medical lay-in trays as of March 31, 2023. (Doc.41.) 20 Plaintiff further asserts that the urologist wanted Plaintiff back quickly to “deal with 21 the cancer mass on this bladder” and said that Plaintiff needed a biopsy. 22 Plaintiff finally asserts that he raised the issue that he needed “stronger pain 23 medication” and NP Adams denied his request, and, although he was prescribed medical
24 25 1 In his Reply in support of his Motion, Plaintiff raises an issue for the first time relating to seeing a cancer surgeon for removal of stitches in his left ear. Because 26 Defendants have not been given a proper opportunity to respond to Plaintiff’s allegations 27 regarding this assertion, this issue is not properly before the Court. Moreover, this issue appears to be unrelated to the claims alleged in Plaintiff’s operative Complaint and appears 28 to be asserted against non-Defendant Adams, so it appears that at this time, the Court lacks jurisdiction to grant Plaintiff any relief in relation to this issue. 1 tennis shoes and inserts, NP Adams “continues to delay” Plaintiff’s medical tennis shoes 2 and inserts. 3 A. Legal Standard 4 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 5 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 6 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 7 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 8 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 9 never awarded as of right”). Nonetheless, “federal courts must not shrink from their 10 obligation to enforce the constitutional rights of all persons, including prisoners” and must 11 not “allow constitutional violations to continue simply because a remedy would involve 12 intrusion into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037, 13 1047 (9th Cir. 2021) (citation omitted). 14 A plaintiff seeking injunctive relief under Rule 65 of the Federal Rules of Civil 15 Procedure must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer 16 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 17 favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, 18 Inc., 555 U.S. 7, 20 (2008). When the government opposes a preliminary injunction, “[t]he 19 third and fourth factors of the preliminary-injunction test—balance of equities and public 20 interest—merge into one inquiry .” Porretti, 11 F.4th at 1047. The “balance of equities” 21 concerns the burdens or hardships to a prisoner complainant compared with the burden on 22 the government defendants if an injunction is ordered. Id. The public interest mostly 23 concerns the injunction’s impact on nonparties rather than parties. Id. (citation omitted). 24 Regardless, “[i]t is always in the public interest to prevent the violation of a party’s 25 constitutional rights.” Id. (citation omitted). 26 Where a plaintiff seeks a mandatory injunction, rather than a prohibitory injunction, 27 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 28 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 1 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 2 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 3 (9th Cir. 2009)). Further, under the Prison Litigation Reform Act, injunctive relief must 4 be narrowly drawn and be the least intrusive means necessary to correct the harm. 18 5 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 6 2000). 7 B. Discussion 8 1. Pain Medication, Tennis Shoes, Lay-Ins 9 Plaintiff bears the burden of demonstrating that he is entitled to injunctive relief. 10 Plaintiff’s requests relating to pain medication are vague and lack any detail through which 11 the Court could conclude that denial of any specific pain medication is likely to result in a 12 violation of Plaintiff’s constitutional rights. Moreover, Plaintiff’s requests relating to 13 tennis shoes, lay-ins, and pain medications appear to be unrelated to the claims in Plaintiff’s 14 underlying Complaint and are directed toward non-Defendant Adams. Plaintiff has not 15 made any non-conclusory argument or submitted any evidence that non-Defendant Adams 16 is making these alleged decisions pursuant to a policy, practice, or custom of Defendants 17 Naphcare and/or Thornell. Accordingly, on this record, Plaintiff has not shown that the 18 Court has jurisdiction to grant relief relating to such claims. See Pacific Radiation 19 Oncology, LLC v. Queen’s Med. Center, 810 F.3d 631, 636 (9th Cir. 2015) (“[w]hen a 20 plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does 21 not have the authority to issue an injunction” ); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 22 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the 23 parties and subject matter jurisdiction over the claim; it may not attempt to determine the 24 rights of persons not before the court.”).2 25 26 2 If Plaintiff seeks to amend his Complaint to assert additional claims against 27 Defendant Adams, he must file a proper motion to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure and Local Rule of Civil Procedure 15. Moreover, because the 28 deadline has passed to seek leave to amend (Doc. 21), Plaintiff must also meet the good cause standard articulated in Rule 16 of the Federal Rules of Civil Procedure. 1 2. Medical Records 2 Plaintiff asserts that he has attempted to obtain medical records from a non- 3 Defendant, but has not yet been given his medical records. Plaintiff does not specify what 4 medical records he is seeking or whether those records are different than medical records 5 that Defendants have filed in this case, and Plaintiff does not set forth evidence of 6 submitting a proper request for specific records or otherwise properly raise a discovery 7 dispute regarding receipt of his medical records. Plaintiff has not set forth any argument 8 that he is entitled to injunctive relief relating to his request for medical records. To the 9 extent Plaintiff claims that Defendants are denying him access to his medical records as 10 part of discovery in this action, he should follow the discovery dispute procedure set forth 11 in this Court’s Scheduling Order. (Doc. 21.) 12 3. The Urologist’s Recommendations 13 The evidence before the Court shows that Defendants are following the specialist’s 14 recommendations. Plaintiff has not met his burden of showing that Defendants are refusing 15 to enter any specific treatment recommended by the specialist. Accordingly, Plaintiff has 16 not shown that he will suffer irreparable harm in the absence of an injunction. 17 4. Information from the Specialists 18 Plaintiff’s allegations regarding being denied information about his medical 19 condition are vague and unsupported. Plaintiff makes general arguments that specialists 20 cannot give him specific dates of future appointments, but this is in place for security 21 reasons. Plaintiff makes no other specific allegations regarding a specialist denying him 22 information relating to his conditions and other allegations within Plaintiff’s Motion 23 demonstrate that the specialist did give Plaintiff information about his condition. 24 Accordingly, Plaintiff has not met of his burden of demonstrating that he is entitled to 25 injunctive relief relating to receiving information from specialists. 26 IT IS ORDERED: 27 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 28 to Compel (Doc. 30), which the Court construes as a Motion for injunctive relief. 1 (2) Plaintiff's Motion to Compel (Doc. 30) is denied without prejudice as set 2| forth herein. 3 Dated this Ist day of June, 2023. 4 ' ° 7 = James A. C rg Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28