1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David E. Griswold, No. CV 19-04562-PHX-DGC (JZB) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.
14 15 Plaintiff David E. Griswold, who is confined in the Arizona State Prison Complex 16 (ASPC)-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 join Centurion Health LLC and Acting Director Joseph Profiri in his official capacity as 19 Defendants for the sole purpose of answering Plaintiff’s claims for injunctive relief, order 20 Defendants Corizon, Centurion Health, and Profiri to answer the Complaint, and dismiss 21 the remaining Defendants without prejudice. 22 I. Application to Proceed In Forma Pauperis and Filing Fee 23 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 24 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 25 § 1915(b)(1). The Court will assess an initial partial filing fee of $21.62. The remainder 26 of the fee will be collected monthly in payments of 20% of the previous month’s income 27 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 1 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 28 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89, 94 (2007) (per curiam)). 3 III. Complaint 4 In his two-count Complaint, Plaintiff sues Corizon Health Care Inc. (“Corizon”),1 5 former Director of the Arizona Department of Corrections (ADC) Charles L. Ryan,2 6 Interim Divisional Director of Health Services Richard Pratt, Regional Medical Director 7 Ayodeji Ladele, and Nurse Practitioners (NP) Curtis Bass, Lawrence E. Ende, and Marie 8 DeMello. Plaintiff asserts claims of inadequate medical care and seeks declaratory, 9 injunctive, and monetary relief. 10 In Count One, Plaintiff alleges the following: On August 25, 2011, while housed 11 at ASPC-Tucson Whetstone Unit, Plaintiff was assaulted with a “lock in a sock” and was 12 stomped on and “choked out.” Plaintiff suffered “tremendous” cuts and abrasions on his 13 head and neck and was taken to the hospital. Plaintiff was treated with stitches for the cuts 14 and returned to the prison the following day. Approximately one month later, Plaintiff 15 began to experience neck and spine pain. He complained to ADC Medical of his ongoing 16 pain. By September 30, 2011, the neck and spine pain became unbearable, and Plaintiff 17 lost mobility in his right arm and hand. Plaintiff’s pain level was an “acute level 10,” and 18 the prison “medical team” administered pain medications to Plaintiff. Plaintiff took 19 different pain medications for nearly two years before he was released from prison on 20 April 4, 2013. 21 On April 5, 2013, Plaintiff went to a hospital, had x-rays taken, and was examined 22 by a doctor, who diagnosed Plaintiff with a broken neck. The doctor explained that 23 Plaintiff would be permanently disabled if he did not have immediate surgery to fuse his 24 spine and neck together. Plaintiff had the fusion surgery, but because of the nearly two- 25
26 1 From March 4, 2013 through July 1, 2019, Corizon was the contracted healthcare provider for Arizona Department of Corrections prisoners. The current contracted 27 healthcare provider is Centurion Health, LLC. 28 2 On September 13, 2019, Charles Ryan stepped down as ADC Director. The Acting Director is Joseph Profiri. 1 year delay, Plaintiff now has pain control issues and must take pain medications 2 “permanently.” 3 Plaintiff was arrested on new charges on September 22, 2015 and was held in a 4 Maricopa County Jail to await trial. The jail medical service “recognized” Plaintiff’s pain 5 and suffering by taking x-rays, reaching a professional diagnosis, and administering needed 6 pain medications. At the time, Plaintiff was taking gabapentin and baclofen to relieve the 7 nerve damage in his neck and spine. 8 Plaintiff was in Maricopa County custody for two years and was ultimately 9 convicted and sentenced to a 9-year prison term in ADC. In September 2017, Plaintiff was 10 placed in ASPC-Lewis Buckley Unit. Plaintiff saw a Corizon healthcare provider, who 11 “did not believe” that Plaintiff had a neck or spine injury or nerve damage and refused to 12 treat him. Plaintiff had his medical records sent to Buckley Unit medical on October 3, 13 2017, but he was denied pain medication and was instead placed on an Alternative 14 Treatment Plan (ATP). 15 In January 2018, Plaintiff was moved to Barchey Unit. Plaintiff submitted a Health 16 Needs Request (HNR) and saw Defendant Bass. Plaintiff explained that his neck and spine 17 had been fused, and he had sustained nerve damage and had “serious level 10 pain” with 18 movement. Plaintiff told Bass he needed to see a pain control specialist and be prescribed 19 pain medication that worked, because the ibuprofen he had been taking did not relieve the 20 pain. ADC and Corizon policy only permitted Bass to make referrals to Corizon’s 21 Utilization Management (UM) unit, which approved referrals to specialists and pain 22 medication prescriptions. Bass “made referrals” to Defendant Ladele for Plaintiff to see a 23 specialist and be given pain medication, but the referral was denied, and Plaintiff received 24 no medical care for his pain. Instead, Plaintiff was placed on an ATP, which, according to 25 Plaintiff, “can only be deemed no treatment.” 26 In May 2018, Plaintiff submitted another HNR and saw Defendant Ende. After 27 “diagnosing” Plaintiff, Ende submitted a referral to Defendant Ladele, requesting that 28 Plaintiff be referred to a specialist and receive “recommended” pain medication. All 1 referrals were denied, and Plaintiff was kept on an ATP. Plaintiff “sat in pain” for another 2 five months, and in October 2018 he submitted another HNR for pain control. Defendant 3 DeMello submitted referrals to Ladele, requesting that Plaintiff be seen by a specialist to 4 “determine his pain” and to receive pain medication. The referral was denied, and Plaintiff 5 was kept on an ATP. 6 Plaintiff suffers multiple fused vertebrae in his upper neck and back, which causes 7 nerve damage, or neuropathy, from his neck down his right arm to his hands and fingers. 8 He feels “level 10 pain” in those areas and numbness in his arm and hand. Plaintiff also 9 has muscle spasms, and at times his hand “lock[s] up” and shakes uncontrollably. Plaintiff 10 suffers tinnitus in both ears and migraine headaches. He has spoken with mental health 11 staff about having suicidal thoughts because he cannot stop the pain, and no one will help 12 him. 13 Plaintiff alleges that Defendant Ryan, as ADC Director, “promised” Plaintiff 14 through written policies and practices to allocate sufficient resources to allow Plaintiff to 15 receive the “community standard of health care.” Plaintiff contends that ADC has fallen 16 far below the federally-mandated measure set forth in Department Order (DO) 110.01, and 17 Ryan’s policy is “more honored in the breach th[a]n in observance.” Plaintiff claims this 18 has left him at the mercy of a “de-facto” policy that caused and still causes Plaintiff serious 19 pain and suffering. Plaintiff asserts that, despite the stipulation in Parsons v. Ryan, CV- 20 12-00601-PHX-ROS,3 Ryan failed to “discuss” performance measures concerning 21 adequate staffing and the “unlawful[]”method of permitting UM to make treatment 22 decisions with Defendant Corizon until November 2017. Plaintiff alleges that UM denies 23 referrals for medical procedures and offsite specialist visits to save money, which Plaintiff 24 claims “had been addressed formally” in the stipulation in Parsons and testimony by 25 “whistleblower” Corizon staff. Plaintiff asserts that Ryan was fined and held in contempt 26 for failing to comply with the stipulation. 27
28 3 Parsons is a 2012 class action filed on behalf of ADC prisoners concerning the provision of medical care and conditions of confinement in isolation units. 1 Plaintiff contends that instead of “push[ing]” Corizon to meet the constitutionally- 2 mandated level of health care for Plaintiff and other ADC prisoners by “punishing” Corizon 3 with monetary penalties, Ryan paid Corizon $2.5 million “as a reward” and told the Court 4 in Parsons that it was a “good business decision.” Plaintiff alleges that Ryan’s “business 5 decision” to contract with a private vendor to save money set into motion a series of events 6 that resulted in Plaintiff being denied needed health care. Plaintiff asserts that Ryan knew 7 or should have known contracting with a private vendor would cause a constitutional 8 violation, because Corizon staff are still denying him health care, and Corizon is still 9 denying referrals for Plaintiff to see a specialist and receive pain medication. Plaintiff 10 claims this is being done to save money. Plaintiff contends that Ryan’s “indirect 11 participation” makes him liable for deliberate indifference to Plaintiff’s serious medical 12 needs, which has caused Plaintiff unnecessary and wanton pain and suffering. 13 Plaintiff alleges that Defendant Pratt was deliberately indifferent by “monitoring 14 through policy and practice” and “allowing” Corizon to fail to provide Plaintiff with 15 adequate health care. Plaintiff asserts that Pratt was also deliberately indifferent to 16 systemic failure to fix the issues, such as Corizon’s inadequate staffing at ASPC-Lewis and 17 UM’s practice of denying needed specialist visits and pain medication to save money. 18 Plaintiff contends that Pratt has “set forth a series of inaction,” in that Pratt knew or should 19 have known, due to being “formally” alerted to the violations through Court findings and 20 testimony by Corizon whistleblowers, that Corizon’s provision of health care would and 21 has caused violation of Plaintiff’s rights. 22 Plaintiff alleges that Defendant Corizon was deliberately indifferent when UM 23 denied Defendants Bass, Ende, and DeMello’s requests for referrals to a specialist and pain 24 medication to save money. Plaintiff claims the “Alternative Treatment Plan” amounts to 25 “no treatment at all,” which caused Plaintiff to suffer unnecessary and wanton pain. 26 Plaintiff alleges that Defendants Bass, Ende, and DeMello were deliberately 27 indifferent when they “conceded to” UM and Defendant Ladele’s denial of the referrals 28 they had requested. Plaintiff asserts Ladele was deliberately indifferent “by” ADC and 1 Corizon’s policy and practice of denying referrals to specialists and pain medications to 2 save costs. 3 In Count Two, Plaintiff alleges the following: Plaintiff has had hepatitis C (HCV) 4 for many years. In December 2018, Plaintiff saw Defendant DeMello, who informed 5 Plaintiff that his APRI score was 2.1. On May 9, 2019, Plaintiff saw Defendant Ende. 6 Ende told Plaintiff his APRI score had increased to 2.285, but rather than refer Plaintiff for 7 HCV treatment, Ende placed Plaintiff on an ATP, which consisted of “bottles of some type 8 of syrup” to remove ammonia from his blood. Corizon follows ADC’s Health Services 9 Technical Manual and Clinical Practice Guidelines for the Prevention and Treatment of 10 Viral Hepatitis C. The ADC policy provides that prisoners with an APRI score of more 11 than 2.0 qualify for the highest priority level for hepatitis C treatment. 12 Plaintiff suffers progressive HCV infection that causes abdominal pain, liver 13 swelling, and lethargy. If the HCV is not immediately treated, Plaintiff may endure total 14 liver failure, cirrhosis, cancer, fibrosis, or early death. Plaintiff also suffers mental 15 disorders that are documented with the prison psychologist, including past suicidal 16 thoughts because ADC and Corizon will not provide the medical care he needs, and he 17 “just gets more ill every day.” 18 Plaintiff alleges that Defendants DeMello and Ende were deliberately indifferent 19 when they referred Plaintiff to receive HCV treatment, but when the referrals were denied, 20 they “failed to file an appeal.” Plaintiff claims this delay in treatment has caused him 21 unnecessary and wanton pain and suffering. Plaintiff asserts that Defendant Ladele denied 22 Plaintiff HCV treatment for financial reasons. Plaintiff contends that Corizon’s policy and 23 practice permitted Ladele, a “non-specialist” in HCV treatment, to deny approval for HCV 24 treatment in favor of an ATP to save costs. 25 Plaintiff contends that although he “meets all requirements” for HCV treatment, he 26 has been denied treatment, which “clearly” shows that Corizon is trying to save money at 27 the expense of Plaintiff’s health and well-being. Plaintiff asserts that Defendant Ryan is 28 liable as a “third party” because Ryan has knowingly permitted Corizon to only fulfill a 1 reasonable standard of health care dependent on “cost-contained” policy and practice. 2 Plaintiff also alleges that Defendant Pratt knowingly allowed Corizon to deny Plaintiff 3 HCV treatment and to provide only a “reasonable” standard of health care. 4 IV. Failure to State a Claim 5 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 6 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 7 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 8 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 9 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 10 as a result of the conduct of a particular defendant and he must allege an affirmative link 11 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 12 72, 377 (1976). 13 A. Official Capacity versus Individual Capacity 14 A suit against a defendant in his or her individual capacity seeks to impose personal 15 liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person 16 to be liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply 17 conclusions, that show that the individual was personally involved in the deprivation of his 18 civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). By comparison, 19 a suit against a defendant in his or her official capacity represents only another way of 20 pleading an action against the entity that employs the defendant. Kentucky, 473 U.S. at 21 165. That is, the real party in interest is not the defendant named in his official capacity, 22 but the entity that employs the defendant. Id. To bring a claim against an individual in his 23 official capacity, a plaintiff must show that the constitutional deprivation resulted from the 24 entity’s policy, custom, or practice. Id.; Monell v. Dep’t of Soc. Servs. of New York, 436 25 U.S. 658, 694 (1978). 1. Monetary Damages Against ADC Officials in Their Official 26 Capacities 27 Plaintiff may not obtain money damages from ADC officials in their official 28 capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officials sued for damages 1 in their official capacity are not ‘persons’ for purposes of the suit because they assume the 2 identity of the government that employs them.”); see also Gilbreath v. Cutter Biological, 3 Inc., 931 F.2d 1320, 1327 (9th Cir. 1991). Therefore, the Court will dismiss Plaintiff’s 4 claims for money damages against Defendants Ryan and Pratt in their official capacities. 5 However, a state official can be sued in his official capacity for prospective injunctive 6 relief. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989). 7 2. Defendants Ryan and Pratt – Individual Capacity 8 Plaintiff does not allege any facts to support a conclusion that Defendants Ryan or 9 Pratt were personally involved in or otherwise aware of Plaintiff’s serious medical needs. 10 Furthermore, Plaintiff does not allege any facts to support a conclusion that Ryan or Pratt 11 participated in or directed violations by their subordinates or knew of their subordinates’ 12 violations and failed to act to prevent them. Rather, Plaintiff alleges only that the litigation 13 in Parsons establishes that ADC and Corizon have a pattern, policy, or custom of denying 14 prisoners healthcare and that the Court in Parsons held Ryan in contempt and fined him 15 for not correcting the issues with healthcare. Plaintiff also asserts that because of Parsons, 16 Ryan and Pratt knew or should have known that Corizon’s provision of health care would 17 result in the violation of Plaintiff’s constitutional rights. These allegations do not support 18 a conclusion that Ryan or Pratt were in any way personally involved in Plaintiff’s medical 19 treatment or aware of Plaintiff’s serious medical needs. Therefore, Plaintiff has not stated 20 an Eighth Amendment claim against Ryan or Pratt in their individual capacities. The Court 21 will dismiss without prejudice Defendants Ryan and Pratt in their individual capacities. 22 B. Medical Care 23 Not every claim by a prisoner relating to inadequate medical treatment states a 24 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 25 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 26 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 27 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 28 Cir. 2006). 1 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 2 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 3 know of and disregard an excessive risk to inmate health; “the official must both be aware 4 of facts from which the inference could be drawn that a substantial risk of serious harm 5 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 6 Deliberate indifference in the medical context may be shown by a purposeful act or failure 7 to respond to a prisoner’s pain or possible medical need and harm caused by the 8 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 9 prison official intentionally denies, delays, or interferes with medical treatment or by the 10 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 11 97, 104-05 (1976); Jett, 439 F.3d at 1096. 12 Deliberate indifference is a higher standard than negligence or lack of ordinary due 13 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 14 negligence will constitute deliberate indifference.” Clement v. California Dep’t of Corr., 15 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 16 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical 17 malpractice” do not support a claim under § 1983). “A difference of opinion does not 18 amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 19 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is 20 insufficient to state a claim against prison officials for deliberate indifference. See Shapley 21 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The 22 indifference must be substantial. The action must rise to a level of “unnecessary and 23 wanton infliction of pain.” Estelle, 429 U.S. at 105. 24 1. Count One 25 In Count One, Plaintiff alleges only that Defendants Bass, Ende, and DeMello 26 requested that Plaintiff be referred to a pain specialist and be given pain medication, but 27 their referrals were denied. Plaintiff does not allege any facts to support a conclusion that 28 Bass, Ende, and DeMello were personally involved in the denial of the referrals or that they 1 had any authority to disregard the denial of the referrals. Plaintiff’s allegations do not 2 support a conclusion that Defendants Bass, Ende, and DeMello were deliberately 3 indifferent to his serious medical needs. 4 With respect to Defendant Ladele, Plaintiff alleges that Ladele denied the referral 5 requests, but he fails to provide any factual detail regarding the referrals or the denials. 6 Furthermore, Plaintiff does not explain how the “Alternative Treatment Plan” amounts to 7 “no treatment” or how it otherwise constitutes deliberate indifference to his serious medical 8 needs. Accordingly, Plaintiff has not alleged facts to support a conclusion that Ladele was 9 deliberately indifferent to his serious medical needs. 10 2. Count Two 11 Plaintiff alleges in Count Two that Defendants Ende and DeMello requested that 12 Plaintiff be treated for HCV, and when Defendant Ladele denied the requests, Ende and 13 DeMello “failed to file an appeal.” These allegations do not support a conclusion Ende or 14 DeMello were personally involved in the denial of the referrals or that they had any 15 authority to disregard the denial of the referrals. 16 Plaintiff alleges that Ladele, who is not an HCV-specialist, denied the requests for 17 HCV treatment to save money. However, as in Count One, Plaintiff fails to provide any 18 factual detail regarding the referrals or the denials. Likewise, Plaintiff does not describe 19 the “Alternative Treatment Plan” that Ladele approved instead of HCV treatment or 20 explain how Ladele’s decision amounted to deliberate indifference to his serious medical 21 needs. Accordingly, Plaintiff has failed to state a deliberate indifference claim against 22 Ladele in Count Two. 23 Plaintiff has not stated a deliberate indifference claim against Defendants Bass, 24 Ende, DeMello, and Ladele, and these Defendants will therefore be dismissed. 25 V. Claims for Which an Answer Will be Required 26 Liberally construed, Plaintiff has stated an Eighth Amendment deliberate 27 indifference claim against Defendant Corizon for its policy, pattern, or practice of delaying 28 1 and denying health care to save costs. The Court will require Corizon to answer Plaintiff’s 2 claims for monetary relief. 3 Plaintiff also seeks injunctive relief, but he has not stated a claim against any 4 Defendant who could accord complete relief to Plaintiff. Thus, pursuant to Rules 19(a)(1) 5 and 21 of the Federal Rules of Civil Procedure, the Court will join Acting Director Profiri 6 in his official capacity and Centurion Health LLC for the sole purpose of answering 7 Plaintiff’s claims for injunctive relief in the Complaint. See Fed. R. Civ. P. 19(a)(1) 8 (requiring joinder of a party if, in that person’s absence, the Court cannot accord complete 9 relief among existing parties); Fed. R. Civ. P. 21 (permitting the Court to add or drop a 10 party at any time, on just terms”). 11 VI. Request for Injunctive Relief 12 In his Request for Injunctive Relief (Doc. 6), Plaintiff asserts that he is still not 13 receiving HCV treatment, which is causing him irreparable harm, and he fears he will 14 suffer imminent death without treatment. Plaintiff asks the Court to expedite these 15 proceedings or order immediate treatment to prevent any further liver damage and prevent 16 the damage from entering the terminal stage (stage four). 17 To seek injunctive relief, a plaintiff must file a motion for a temporary restraining 18 order or a preliminary injunction in accordance with Rule 65 of the Federal Rules of Civil 19 Procedure. A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 20 Procedure must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer 21 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 22 favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense 23 Council, Inc., 555 U.S. 7, 20 (2008); Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 24 1124 (9th Cir. 2014); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012); 25 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th 26 Cir. 2001). Where a movant seeks a mandatory injunction, rather than a prohibitory 27 injunction, injunctive relief is “subject to a higher standard” and is “permissible when 28 ‘extreme or very serious damage will result’ that is not ‘capable of compensation in 1 damages,’ and the merits of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 2 976, 999 (9th Cir. 2017) (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & 3 Co., 571 F.3d 873, 879 (9th Cir. 2009)).4 “The ‘status quo’ refers to the legally relevant 4 relationship between the parties before the controversy arose.” Arizona Dream Act 5 Coalition v. Brewer, 757 F.3d 1053, 1060-61 (9th Cir. 2014). 6 Unlike a preliminary injunction, see Fed. R. Civ. P. 65(a), a temporary restraining 7 order (TRO) may be entered “without written or oral notice to the adverse party.” Fed. R. 8 Civ. P. 65(b). A TRO may issue, ex parte, if: “(A) specific facts in an affidavit or a verified 9 complaint clearly show that immediate and irreparable injury, loss, or damage will result 10 to the movant before the adverse party can be heard in opposition”; and (B) the movant 11 “certifies in writing any efforts made to give notice and the reasons why it should not be 12 required.” Fed. R. Civ. P. 65(b) (emphasis added). 13 Plaintiff’s Request for Injunctive Relief does not comply with Rule 65. Moreover, 14 Plaintiff has not addressed any of the factors set forth in Winter, and he has not set forth 15 any facts concerning his current condition, such as the results of recent lab tests or provider 16 examinations, to support a conclusion that “extreme or very serious damage” will result if 17 the Court does not grant immediate injunctive relief. Likewise, Plaintiff has not set forth 18 specific facts that clearly show that he will suffer “immediate and irreparable injury, loss, 19 or damage” if the Court does not issue a TRO without notice. The Court will therefore 20 deny Plaintiff’s Request for Injunctive Relief without prejudice. 21 VII. Warnings 22 A. Release 23 If Plaintiff is released while this case remains pending, and the filing fee has not 24 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 25 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 26
27 4 “A mandatory injunction orders a responsible party to take action,” while “a prohibitory injunction prohibits a party from taking action and preserves the status quo 28 pending a determination of the action on the merits.” Marlyn Nutraceuticals, 571 F.3d at 879 (internal quotation marks omitted). 1 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Copies 9 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 10 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 11 of every document he files or to submit an additional copy of every filing for use by the 12 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 13 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 14 including, with every document he files, a certificate of service stating that this case is 15 subject to General Order 14-17 and indicating the date the document was delivered to 16 prison officials for filing with the Court. 17 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 18 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 19 copy of every document that he files, and include a certificate stating that a copy of the 20 filing was served; and (b) submit an additional copy of every filing for use by the Court. 21 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 22 being stricken without further notice to Plaintiff. 23 D. Possible Dismissal 24 If Plaintiff fails to timely comply with every provision of this Order, including these 25 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 26 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 27 to comply with any order of the Court). 28 / / / 1 IT IS ORDERED: 2 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 3 (2) As required by the accompanying Order to the appropriate government 4 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 5 of $21.62. 6 (3) Plaintiff’s Request for Injunctive Relief (Doc. 6) is denied without 7 prejudice. 8 (4) Defendants Ryan, Pratt, Ladele, Bass, Ende, and DeMello are dismissed 9 without prejudice. 10 (5) The Clerk of Court must update the docket to reflect that Centurion Health 11 LLC and Acting Director Profiri in his official capacity are joined as Defendants for the 12 sole purpose of answering Plaintiff’s claims for injunctive relief in the Complaint. 13 (6) Defendants Corizon, Centurion Health, and Profiri must answer the 14 Complaint. 15 (7) The Clerk of Court must send Plaintiff this Order, and a copy of the 16 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 17 for Waiver of Service of Summons form for Defendants Corizon, Centurion Health, and 18 Profiri. 19 (8) Plaintiff must complete5 and return the service packet to the Clerk of Court 20 within 21 days of the date of filing of this Order. The United States Marshal will not 21 provide service of process if Plaintiff fails to comply with this Order. 22 (9) If Plaintiff does not either obtain a waiver of service of the summons or 23 complete service of the Summons and Complaint on a Defendant within 90 days of the 24 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 25 26
27 5 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee 28 works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. 1 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 2 16.2(b)(2)(B)(ii). 3 (10) The United States Marshal must retain the Summons, a copy of the 4 Complaint, and a copy of this Order for future use. 5 (11) The United States Marshal must notify Defendants of the commencement of 6 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 7 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 8 Order. 9 (12) A Defendant who agrees to waive service of the Summons and Complaint 10 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 11 30 days of the date of the notice and request for waiver of service pursuant to Federal 12 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 13 (13) The Marshal must immediately file signed waivers of service of the 14 summons. If a waiver of service of summons is returned as undeliverable or is not returned 15 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 16 the Marshal must: 17 (a) personally serve copies of the Summons, Complaint, and this Order 18 upon Defendant pursuant to Rule 4(e)(2) and Rule 4(h)(1) of the Federal Rules of 19 Civil Procedure; and 20 (b) within 10 days after personal service is effected, file the return of 21 service for Defendant, along with evidence of the attempt to secure a waiver of 22 service of the summons and of the costs subsequently incurred in effecting service 23 upon Defendant. The costs of service must be enumerated on the return of service 24 form (USM-285) and must include the costs incurred by the Marshal for 25 photocopying additional copies of the Summons, Complaint, or this Order and for 26 preparing new process receipt and return forms (USM-285), if required. Costs of 27 service will be taxed against the personally served Defendant pursuant to Rule 28 1 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 2 Court. 3 (14) Defendants Corizon, Centurion Health, and Profiri must answer the 4} Complaint or otherwise respond by appropriate motion within the time provided by the 5 | applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 6 (15) Any answer or response must state the specific Defendant by name on whose 7 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 8 | does not identify the specific Defendant by name on whose behalf it is filed. 9 (16) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 10| 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 11 | authorized under 28 U.S.C. § 636(b)(1). 12 Dated this 17th day of October, 2019. 13 14 . Saul 6. Counpllt 16 David G. Campbell 17 Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28