1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ALBERT MEDINA, Case No.: 2:23-cv-01773-APG-MDC
4 Plaintiff Order (1) Denying Motions for Preliminary Injunction and (2) Granting 5 v. Motion for Leave to File Exhibit Under Seal 6 JAMES SCALLY, et al., [ECF Nos. 19, 27, 64, 65] 7 Defendants
8 Plaintiff Albert Medina sues defendants James Scally, Lieutenant Bartt, Jaime Cabrera, 9 and John Doe for events that occurred while Medina was incarcerated at High Desert State 10 Prison (HDSP). After screening, the following claims are pending: (1) an Eighth Amendment 11 claim of deliberate indifference to a serious medical need based on the recent failure to provide 12 Medina treatment for his wrist arthritis and pain against Scally, Bartt, and Cabrera; and (2) an 13 Eighth Amendment claim of deliberate indifference to a serious medical need based on the 14 failure to provide Medina medication for gastroesophageal reflux disease (GERD) against Scally, 15 Bartt, Cabrera, and John Doe. ECF No. 21 at 12-13. 16 Medina moves for a restraining order, arguing that the defendants have delayed or denied 17 medication for his GERD and treatment for his wrist. The defendants oppose, arguing that 18 Medina has not exhausted administrative remedies because none of his grievances have gone 19 beyond the informal stage.1 They also contend that Medina is not likely to succeed on the merits 20 because Medina has been provided medication to treat his GERD. They assert that although his 21
22 1 The defendants attach to their response a printout of Medina’s grievance history. As has become typical in these types of cases, the grievance history is printed out in such a way that 23 only part of the grievance is displayed, making it difficult, if not impossible, to determine what was stated in the grievances. See, e.g., ECF No. 26-1 at 2-3. 1 medication was changed from Omeprazole to Famotidine, there were medical reasons to make 2 that change. They also contend that Medina has since received Omeprazole as he requested. 3 And they argue that even if there were some gaps in providing him medication, those were not 4 sufficiently lengthy to show deliberate indifference. As for his wrist injury, the defendants argue
5 that Medina filed a grievance less than three months before he filed his motion for injunctive 6 relief, and he was told that his wrist would be examined. They contend that a three-month delay 7 is not sufficient to show deliberate indifference. 8 In reply, Medina argues that he cannot exhaust administrative remedies because prison 9 officials have a practice of frustrating the grievance process, including by denying grievances for 10 improper reasons or throwing them away. Medina states that he went without his GERD 11 medication for about a month while in isolation. He argues that his usual medication was 12 changed without consulting him and without a physical exam, and that the new medication was 13 ineffective. He asserts that he went “entire months without medication to the extent of 14 vomit[ing] blood” in a nurse’s presence. ECF No. 35 at 4. He contends that during the first week
15 of August 2024, Dr. Avram prescribed him the GERD medication known as Pantoprazole, which 16 as of the date of his September 5, 2024 reply, “has been effective.” Id. As to his wrist, Medina 17 argues that due to deliberate indifference by HDSP staff, his fractured ulna and radius became 18 infected in 2002. And he argues that the defendants recently denied him pain medication. 19 To qualify for a preliminary injunction, a plaintiff must demonstrate: (1) a likelihood of 20 success on the merits, (2) a likelihood of irreparable harm, (3) the balance of hardships favors the 21 plaintiff, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 22 U.S. 7, 20 (2008). Alternatively, under the sliding scale approach, the plaintiff must demonstrate 23 (1) serious questions on the merits, (2) a likelihood of irreparable harm, (3) the balance of 1 hardships tips sharply in the plaintiff’s favor, and (4) an injunction is in the public interest. All. 2 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). Additionally, in the 3 context of a civil action challenging prison conditions, injunctive relief “must be narrowly 4 drawn, extend no further than necessary to correct the harm the court finds requires preliminary
5 relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). I 6 must give “substantial weight to any adverse impact on public safety or the operation of a 7 criminal justice system caused by the preliminary relief and shall respect the principles of comity 8 set out” in § 3626(a)(1)(B). Id. A preliminary injunction is “an extraordinary and drastic 9 remedy, one that should not be granted unless the movant, by a clear showing, carries the burden 10 of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotation and emphasis 11 omitted). 12 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and 13 “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” 14 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quotation omitted). A prison official violates the
15 Eighth Amendment when he acts with deliberate indifference to an inmate’s serious medical 16 needs. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment 17 violation, a plaintiff must satisfy both an objective standard—that the deprivation was serious 18 enough to constitute cruel and unusual punishment—and a subjective standard—deliberate 19 indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds 20 by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014). 21 To establish the first prong, “the plaintiff must show a serious medical need by 22 demonstrating that failure to treat a prisoner’s condition could result in further significant injury 23 or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 1 2006) (quotation omitted). A medical need qualifies as serious when the inmate has: (1) an 2 injury “that a reasonable doctor or patient would find important and worthy of comment or 3 treatment,” (2) a “medical condition that significantly affects an individual’s daily activities,” or 4 (3) “chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),
5 overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 6 (en banc). Where the claim of medical indifference stems from an alleged delay in receiving 7 medical treatment, the prisoner must show that the delay itself led to further injury. See Shapley 8 v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere 9 delay of surgery, without more, is insufficient to state a claim of deliberate medical 10 indifference”).
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ALBERT MEDINA, Case No.: 2:23-cv-01773-APG-MDC
4 Plaintiff Order (1) Denying Motions for Preliminary Injunction and (2) Granting 5 v. Motion for Leave to File Exhibit Under Seal 6 JAMES SCALLY, et al., [ECF Nos. 19, 27, 64, 65] 7 Defendants
8 Plaintiff Albert Medina sues defendants James Scally, Lieutenant Bartt, Jaime Cabrera, 9 and John Doe for events that occurred while Medina was incarcerated at High Desert State 10 Prison (HDSP). After screening, the following claims are pending: (1) an Eighth Amendment 11 claim of deliberate indifference to a serious medical need based on the recent failure to provide 12 Medina treatment for his wrist arthritis and pain against Scally, Bartt, and Cabrera; and (2) an 13 Eighth Amendment claim of deliberate indifference to a serious medical need based on the 14 failure to provide Medina medication for gastroesophageal reflux disease (GERD) against Scally, 15 Bartt, Cabrera, and John Doe. ECF No. 21 at 12-13. 16 Medina moves for a restraining order, arguing that the defendants have delayed or denied 17 medication for his GERD and treatment for his wrist. The defendants oppose, arguing that 18 Medina has not exhausted administrative remedies because none of his grievances have gone 19 beyond the informal stage.1 They also contend that Medina is not likely to succeed on the merits 20 because Medina has been provided medication to treat his GERD. They assert that although his 21
22 1 The defendants attach to their response a printout of Medina’s grievance history. As has become typical in these types of cases, the grievance history is printed out in such a way that 23 only part of the grievance is displayed, making it difficult, if not impossible, to determine what was stated in the grievances. See, e.g., ECF No. 26-1 at 2-3. 1 medication was changed from Omeprazole to Famotidine, there were medical reasons to make 2 that change. They also contend that Medina has since received Omeprazole as he requested. 3 And they argue that even if there were some gaps in providing him medication, those were not 4 sufficiently lengthy to show deliberate indifference. As for his wrist injury, the defendants argue
5 that Medina filed a grievance less than three months before he filed his motion for injunctive 6 relief, and he was told that his wrist would be examined. They contend that a three-month delay 7 is not sufficient to show deliberate indifference. 8 In reply, Medina argues that he cannot exhaust administrative remedies because prison 9 officials have a practice of frustrating the grievance process, including by denying grievances for 10 improper reasons or throwing them away. Medina states that he went without his GERD 11 medication for about a month while in isolation. He argues that his usual medication was 12 changed without consulting him and without a physical exam, and that the new medication was 13 ineffective. He asserts that he went “entire months without medication to the extent of 14 vomit[ing] blood” in a nurse’s presence. ECF No. 35 at 4. He contends that during the first week
15 of August 2024, Dr. Avram prescribed him the GERD medication known as Pantoprazole, which 16 as of the date of his September 5, 2024 reply, “has been effective.” Id. As to his wrist, Medina 17 argues that due to deliberate indifference by HDSP staff, his fractured ulna and radius became 18 infected in 2002. And he argues that the defendants recently denied him pain medication. 19 To qualify for a preliminary injunction, a plaintiff must demonstrate: (1) a likelihood of 20 success on the merits, (2) a likelihood of irreparable harm, (3) the balance of hardships favors the 21 plaintiff, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 22 U.S. 7, 20 (2008). Alternatively, under the sliding scale approach, the plaintiff must demonstrate 23 (1) serious questions on the merits, (2) a likelihood of irreparable harm, (3) the balance of 1 hardships tips sharply in the plaintiff’s favor, and (4) an injunction is in the public interest. All. 2 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). Additionally, in the 3 context of a civil action challenging prison conditions, injunctive relief “must be narrowly 4 drawn, extend no further than necessary to correct the harm the court finds requires preliminary
5 relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). I 6 must give “substantial weight to any adverse impact on public safety or the operation of a 7 criminal justice system caused by the preliminary relief and shall respect the principles of comity 8 set out” in § 3626(a)(1)(B). Id. A preliminary injunction is “an extraordinary and drastic 9 remedy, one that should not be granted unless the movant, by a clear showing, carries the burden 10 of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotation and emphasis 11 omitted). 12 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and 13 “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” 14 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quotation omitted). A prison official violates the
15 Eighth Amendment when he acts with deliberate indifference to an inmate’s serious medical 16 needs. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment 17 violation, a plaintiff must satisfy both an objective standard—that the deprivation was serious 18 enough to constitute cruel and unusual punishment—and a subjective standard—deliberate 19 indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds 20 by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014). 21 To establish the first prong, “the plaintiff must show a serious medical need by 22 demonstrating that failure to treat a prisoner’s condition could result in further significant injury 23 or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 1 2006) (quotation omitted). A medical need qualifies as serious when the inmate has: (1) an 2 injury “that a reasonable doctor or patient would find important and worthy of comment or 3 treatment,” (2) a “medical condition that significantly affects an individual’s daily activities,” or 4 (3) “chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),
5 overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 6 (en banc). Where the claim of medical indifference stems from an alleged delay in receiving 7 medical treatment, the prisoner must show that the delay itself led to further injury. See Shapley 8 v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere 9 delay of surgery, without more, is insufficient to state a claim of deliberate medical 10 indifference”). 11 To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or 12 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 13 indifference.” Jett, 439 F.3d at 1096. “Indifference may appear when prison officials deny, 14 delay or intentionally interfere with medical treatment, or it may be shown by the way in which
15 prison physicians provide medical care.” Id. (quotation omitted). “A prison official is 16 deliberately indifferent under the subjective element of the test only if the official knows of and 17 disregards an excessive risk to inmate health and safety.” Colwell v. Bannister, 763 F.3d 1060, 18 1066 (9th Cir. 2014) (quotation omitted). “[T]he official must both be aware of facts from which 19 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 20 the inference.” Farmer, 511 U.S. at 837. 21 1. GERD 22 Medina has not shown that an injunction related to medication for GERD is necessary at 23 this time because he states in his reply that in August 2024, Dr. Avram prescribed him 1 Pantoprazole for GERD, which has been effective for him. Consequently, whatever his past 2 concerns were with the switch from Omeprazole to Famotidine, he is no longer on Famotidine 3 and instead is on a medication that, at least as of the date of his reply brief, was working for him. 4 Further, Medina has not presented evidence that delays he experienced in receiving his GERD
5 medication have continued recently or that any recent delays are of such a duration as to amount 6 to deliberate indifference. Thus, I deny his motion for injunctive relief related to his GERD 7 medication. 8 2. Wrist 9 Medina had surgery on his wrist in 2004. ECF No. 28-1 at 51. He argues in his reply that 10 it was prison officials’ deliberate indifference in 2002 that led to the 2004 surgery and to the loss 11 of use of his left hand. But as I explained in the screening order, Medina fails to state a colorable 12 claim related to alleged improper treatment of his wrist dating back to 2002 because he did not 13 allege in his complaint that any of the defendants were involved in his medical care back then. 14 ECF No. 21 at 9. I therefore dismissed any claim based on allegations about his medical care in
15 2002-04. Id. Instead, I allowed an Eighth Amendment claim related to his wrist to proceed to the 16 extent it was based on “the recent failure to provide treatment.” Id. 17 Medina argues that, like his GERD medication, his pain medication has also been 18 delayed. But Medina was provided with aspirin and ibuprofen, and it appears that on the few 19 occasions Medina sent medical kites related to painkillers, they were given to him, or he was told 20 it was either too soon for a refill or his prescription had expired. See ECF No. 28-1 at 6-7, 9, 30- 21 31, 36-37, 135, 143, 167-72, 178-81, 198-200, 205-06. 22 Medina filed a grievance in September 2023 in which he requested an appointment with a 23 doctor related to his wrist. ECF No. 1-2 at 23. That grievance was returned to him because it 1 lacked an administrative claim form. ECF No. 26-1 at 3. Medina apparently resubmitted it, and 2 it was returned again in April or May 2024.2 Id. Medina was informed that his “request to be 3 seen for [his] wrist will be expedited on the list.” Id. In July 2024, Medina filed this motion for a 4 restraining order. ECF No. 19. In their August 19, 2024 response, the defendants stated that
5 “[w]hile the medical records available at this time do not appear to indicate that such an 6 examination has taken place, the time elapsed since this statement was made is brief enough that 7 the issuance of any sort of injunctive relief at this point would be premature and against the 8 public interest.” ECF No. 26 at 11. 9 Given this response, I ordered the defendants to file a status report regarding whether 10 Medina had been seen for his wrist. ECF No. 56. The defendants responded that Medina was 11 scheduled to be seen for his wrist on November 27, 2024. ECF No. 59. Medina thereafter filed a 12 motion for reconsideration regarding appointment of counsel in which he confirmed that he was 13 seen for his wrist on November 27. ECF No. 61 at 3. But Medina stated that the doctor 14 discontinued the pain medication for his arthritis in his wrist “without considering prescribing an
15 alternative pain medication.” Id. I ordered the defendants to file a second status report regarding 16 what happened at the November 27, 2024 appointment, including whether the doctor 17 discontinued pain medication for Medina’s wrist and, if so, the medical reason for doing so. ECF 18 No. 63. 19 The defendants responded by providing the doctor’s notes from the November 27 20 appointment, which show that the doctor issued orders for x-rays, laboratory tests, and pain 21
22 2 The grievance history report is confusing and unexplained. The grievance states it has a “date returned” of April 9, 2024, but it also states that Medina disagreed with the response and signed 23 on May 14, 2024. ECF No. 26-1 at 3. No explanation is given for this one-month discrepancy in the dates. medication. ECF No. 68-1 at 2-4. Specifically, the doctor prescribed 325mg Tylenol tablets for 2} Medina to keep on his person. /d. Asa result, I deny Medina’s motion for injunctive relief related to his wrist because an injunction is not needed to ensure he is seen by a medical provider about his wrist. Additionally, the doctor has prescribed medication to address Medina’s wrist pain. Medina has recently filed additional motions for injunctive relief in which he requests “‘an order granting the stoppage of the denial of arthritis pain medication and the constant pain 7|| enduring as a result.” ECF Nos. 64 at 3; 65 at 3. Because the doctor prescribed alternative pain medication for Medina, I deny these motions as well. 9 I THEREFORE ORDER that plaintiff Albert Medina’s motions for injunctive relief 10}| (ECF Nos. 19, 64, 65) are DENIED. 11 I] FURTHER ORDER that the Nevada Department of Corrections’ motion for leave to file an exhibit under seal (ECF No. 27) is GRANTED. 13 DATED this 23rd day of December, 2024. 14 Gea ANDREWP.GORDON. 16 CHIEF UNITED STATES DISTRICT JUDGE
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