1 2 3 4 5 6 7 10 11 WILLIAM JAMES WALLACE, II, No. 1:20-cv-00905-NONE-JLT (PC)
12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND DENYING 14 CALIFORNIA DEPARTMENT OF MOTION FOR TEMPORARY RESTRAINING CORRECTIONS AND ORDER AND PRELIMINARY INJUNCTION 15 REHABILITATION, et al., (Doc. Nos. 4, 10, 14) 16 Defendants. 17 18 Plaintiff William James Wallace is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On July 6, 2020, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s motion for a temporary restraining order (TRO) and a preliminary 23 injunction (Doc. No. 4) be denied. (Doc. No. 10.) The magistrate judge found that plaintiff failed 24 to show that he is likely succeed on the merits of his claims or that he will likely suffer irreparable 25 harm in the absence of his requested relief. (Id. at 2–5.) The findings and recommendations were 26 served on plaintiff and provided him fourteen (14) days to file objections thereto. (Id. at 5.) 27 Plaintiff filed timely objections on July 15, 2020. (Doc. No. 13.) On July 20, 2020, 1 imminent danger.” (Doc. No. 14.) To the extent plaintiff seeks to supplement his objections with 2 the arguments and documentation provided in and with his motion, the court grants plaintiff’s 3 motion and has considered the supplement as part of his objections. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 5 de novo review of this case. Having carefully reviewed the file, including plaintiff’s objections 6 and supplemental documentation, the court finds the findings and recommendations to be 7 supported by the record and proper analysis. The court agrees with the magistrate judge’s finding 8 that plaintiff has failed to show that he is likely to succeed on the merits of his claims.1 9 Plaintiff objects to the pending findings and recommendations on the grounds that: (1) his 10 condition, which began as a broken ankle and has developed into a painful condition known as 11 “hammer toes,” where his toes and foot curl inward forming a claw, leaves him experiencing 12 neuropathy, foot numbness and tingling, and burning of the thigh, hips, and lower back; (2) in 13 December 2019, approximately one month before his transfer into defendant’s custody, specialist 14 Dr. Fried scheduled plaintiff for corrective surgery in May 2020, and ordered plaintiff to be seen 15 by a neurologist and fitted for an ankle-foot orthosis (AFO) brace and orthopedic shoes; (3) 16 “[e]ven a layperson or someone not a medical professional can recognize further delays to receive 17 treatment have led to irreparable injury,” and “every specialist whose [sic] treated me have all 18 agreed I’ll never walk normally or free from pain, some speculate whether I will walk at all”; (4) 19 plaintiff contends he will likely succeed on the merits because courts in Washington and Oregon 20 have found his similar claims to be “meritorious”; and (5) plaintiff has gone over five months 21 1 The court also notes that plaintiff did notify the defendants of his request for a TRO and 22 preliminary injunction nor did he submit the required certification of his efforts to do so. See Fed. R. Civ. P. 65(a) (requiring notice to adverse party for preliminary injunction); Fed. R. Civ. P. 23 65(b)(1) (TRO may be granted without written or oral notice to the adverse party or that party’s attorney only if: (1) it clearly appears from specific facts shown by affidavit or by the verified 24 complaint that “immediate and irreparable injury, loss or damage will result to the movant before 25 the adverse party can be heard in opposition,” and (2) the plaintiff “certifies in writing any efforts made to give notice and the reasons why [notice] should not be required.”). This lack of notice 26 would serve as an independent basis for the denial of plaintiff’s motion. See Sessoms v. Thornton, No. C 13-0714 WHA (PR), 2013 WL 1832636, at *1–2 (N.D. Cal. May 1, 2013) 27 (denying preliminary injunction in prisoner’s deliberate indifference case before complaint was screened where plaintiff failed to notify defendants of intent to file motion); Scheinuck v. Cate, 1 without shoes in an unsanitary environment, and has been denied wheelchair repairs, the ability to 2 purchase replacement wheelchair parts at plaintiff’s own expense, and a medical mattress. (Doc. 3 No. 13. at 1–2.) 4 As to plaintiff’s first, second, and fifth objections, the court agrees with the magistrate 5 judge’s finding that plaintiff’s allegations reflect that he suffers from a serious medical condition 6 that affects his ability to walk. (Doc. No. 10 at 4.) However, plaintiff otherwise merely repeats 7 the same arguments advanced in his TRO and fails to address the magistrate judge’s findings that 8 he has not shown a likelihood of prevailing on his claim that defendants have been deliberately 9 indifferent to that serious medical condition. (See id.) Therefore, plaintiff’s first, second, and 10 fifth objections do not call into question the conclusion reached in the pending findings and 11 recommendations. 12 Addressing plaintiff’s third objection, the court notes the difference in opinion between 13 the specialists plaintiff saw before his transfer into defendants’ custody and defendants’ own 14 assessments of plaintiff’s medical conditions. However, a “difference of opinion between a 15 physician and the prisoner—or between medical professionals—concerning what medical care is 16 appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 17 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 18 (9th Cir. 2014). 19 As to plaintiff’s fourth objection, the undersigned has reviewed plaintiff’s three pending 20 actions in Washington and Oregon. In Wallace v. Pierce County Sheriff’s Department, the court 21 recently granted defendant’s motion for a more definite statement, granting plaintiff leave to 22 amend his complaint. No. 3:19-cv-05329-RBL-DWC (W.D. Wa. Aug. 3, 2020) (Doc. No. 90). 23 Therefore, the court finds unpersuasive plaintiff’s objection that he is likely to succeed on the 24 merits in this case based upon his pending action in Washington, where the pleadings in the 25 Pierce County Sheriff’s Department matter remain unsettled. In Wallace v. Longano, the court 26 granted defendants’ motion for summary judgment, dismissing all of plaintiff’s claims and 27 ///// 1 finding plaintiff’s second motion for summary judgment was without merit.2 No. 3:19-cv-05330- 2 RJB-JRC (W.D. Wa. July 6, 2020) (Doc. No. 114). In Wallace v. Washington County Jail, the 3 court has found that “exceptional circumstances exist in this case to necessitate the appointment 4 of pro bono counsel.” No. 3:18-cv-01975-SI (D. Or. Oct. 9, 2019) (Doc. No. 44). However, 5 nothing in the court’s October 9, 2019 appointment-of-counsel order informs this court whether 6 plaintiff is likely to succeed on the merits in this case. Therefore, plaintiff’s fourth objection 7 lacks also merit.
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1 2 3 4 5 6 7 10 11 WILLIAM JAMES WALLACE, II, No. 1:20-cv-00905-NONE-JLT (PC)
12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND DENYING 14 CALIFORNIA DEPARTMENT OF MOTION FOR TEMPORARY RESTRAINING CORRECTIONS AND ORDER AND PRELIMINARY INJUNCTION 15 REHABILITATION, et al., (Doc. Nos. 4, 10, 14) 16 Defendants. 17 18 Plaintiff William James Wallace is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On July 6, 2020, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s motion for a temporary restraining order (TRO) and a preliminary 23 injunction (Doc. No. 4) be denied. (Doc. No. 10.) The magistrate judge found that plaintiff failed 24 to show that he is likely succeed on the merits of his claims or that he will likely suffer irreparable 25 harm in the absence of his requested relief. (Id. at 2–5.) The findings and recommendations were 26 served on plaintiff and provided him fourteen (14) days to file objections thereto. (Id. at 5.) 27 Plaintiff filed timely objections on July 15, 2020. (Doc. No. 13.) On July 20, 2020, 1 imminent danger.” (Doc. No. 14.) To the extent plaintiff seeks to supplement his objections with 2 the arguments and documentation provided in and with his motion, the court grants plaintiff’s 3 motion and has considered the supplement as part of his objections. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 5 de novo review of this case. Having carefully reviewed the file, including plaintiff’s objections 6 and supplemental documentation, the court finds the findings and recommendations to be 7 supported by the record and proper analysis. The court agrees with the magistrate judge’s finding 8 that plaintiff has failed to show that he is likely to succeed on the merits of his claims.1 9 Plaintiff objects to the pending findings and recommendations on the grounds that: (1) his 10 condition, which began as a broken ankle and has developed into a painful condition known as 11 “hammer toes,” where his toes and foot curl inward forming a claw, leaves him experiencing 12 neuropathy, foot numbness and tingling, and burning of the thigh, hips, and lower back; (2) in 13 December 2019, approximately one month before his transfer into defendant’s custody, specialist 14 Dr. Fried scheduled plaintiff for corrective surgery in May 2020, and ordered plaintiff to be seen 15 by a neurologist and fitted for an ankle-foot orthosis (AFO) brace and orthopedic shoes; (3) 16 “[e]ven a layperson or someone not a medical professional can recognize further delays to receive 17 treatment have led to irreparable injury,” and “every specialist whose [sic] treated me have all 18 agreed I’ll never walk normally or free from pain, some speculate whether I will walk at all”; (4) 19 plaintiff contends he will likely succeed on the merits because courts in Washington and Oregon 20 have found his similar claims to be “meritorious”; and (5) plaintiff has gone over five months 21 1 The court also notes that plaintiff did notify the defendants of his request for a TRO and 22 preliminary injunction nor did he submit the required certification of his efforts to do so. See Fed. R. Civ. P. 65(a) (requiring notice to adverse party for preliminary injunction); Fed. R. Civ. P. 23 65(b)(1) (TRO may be granted without written or oral notice to the adverse party or that party’s attorney only if: (1) it clearly appears from specific facts shown by affidavit or by the verified 24 complaint that “immediate and irreparable injury, loss or damage will result to the movant before 25 the adverse party can be heard in opposition,” and (2) the plaintiff “certifies in writing any efforts made to give notice and the reasons why [notice] should not be required.”). This lack of notice 26 would serve as an independent basis for the denial of plaintiff’s motion. See Sessoms v. Thornton, No. C 13-0714 WHA (PR), 2013 WL 1832636, at *1–2 (N.D. Cal. May 1, 2013) 27 (denying preliminary injunction in prisoner’s deliberate indifference case before complaint was screened where plaintiff failed to notify defendants of intent to file motion); Scheinuck v. Cate, 1 without shoes in an unsanitary environment, and has been denied wheelchair repairs, the ability to 2 purchase replacement wheelchair parts at plaintiff’s own expense, and a medical mattress. (Doc. 3 No. 13. at 1–2.) 4 As to plaintiff’s first, second, and fifth objections, the court agrees with the magistrate 5 judge’s finding that plaintiff’s allegations reflect that he suffers from a serious medical condition 6 that affects his ability to walk. (Doc. No. 10 at 4.) However, plaintiff otherwise merely repeats 7 the same arguments advanced in his TRO and fails to address the magistrate judge’s findings that 8 he has not shown a likelihood of prevailing on his claim that defendants have been deliberately 9 indifferent to that serious medical condition. (See id.) Therefore, plaintiff’s first, second, and 10 fifth objections do not call into question the conclusion reached in the pending findings and 11 recommendations. 12 Addressing plaintiff’s third objection, the court notes the difference in opinion between 13 the specialists plaintiff saw before his transfer into defendants’ custody and defendants’ own 14 assessments of plaintiff’s medical conditions. However, a “difference of opinion between a 15 physician and the prisoner—or between medical professionals—concerning what medical care is 16 appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 17 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 18 (9th Cir. 2014). 19 As to plaintiff’s fourth objection, the undersigned has reviewed plaintiff’s three pending 20 actions in Washington and Oregon. In Wallace v. Pierce County Sheriff’s Department, the court 21 recently granted defendant’s motion for a more definite statement, granting plaintiff leave to 22 amend his complaint. No. 3:19-cv-05329-RBL-DWC (W.D. Wa. Aug. 3, 2020) (Doc. No. 90). 23 Therefore, the court finds unpersuasive plaintiff’s objection that he is likely to succeed on the 24 merits in this case based upon his pending action in Washington, where the pleadings in the 25 Pierce County Sheriff’s Department matter remain unsettled. In Wallace v. Longano, the court 26 granted defendants’ motion for summary judgment, dismissing all of plaintiff’s claims and 27 ///// 1 finding plaintiff’s second motion for summary judgment was without merit.2 No. 3:19-cv-05330- 2 RJB-JRC (W.D. Wa. July 6, 2020) (Doc. No. 114). In Wallace v. Washington County Jail, the 3 court has found that “exceptional circumstances exist in this case to necessitate the appointment 4 of pro bono counsel.” No. 3:18-cv-01975-SI (D. Or. Oct. 9, 2019) (Doc. No. 44). However, 5 nothing in the court’s October 9, 2019 appointment-of-counsel order informs this court whether 6 plaintiff is likely to succeed on the merits in this case. Therefore, plaintiff’s fourth objection 7 lacks also merit. 8 Plaintiff supplements his motion by submitting as evidence two recently exhausted 9 grievances, which purportedly show defendants’ deliberate indifference, failure to provide 10 adequate medical care, and failure to make reasonable accommodations, placing plaintiff in 11 imminent danger. (See Doc. No. 14.) The court understands plaintiff’s argument that defendants 12 interrupted his prescriptions upon being transferred into their custody, he was previously 13 scheduled for surgery in May 2020 when he was housed at the Men’s Central Jail in Los Angeles 14 and before being transferred into defendants’ custody in January 2020, and that plaintiff was 15 instructed to discard his generic AFO brace because he thought he was going to receive a custom 16 AFO brace. (See id. at 2–3.) Plaintiff, however, faces a high bar, especially on a motion for a 17 TRO and preliminary injunction, to show defendants have been deliberately indifferent to his 18 serious medical condition. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); City of 19 Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). 20 Based upon the showing made at this stage of the case, the court cannot conclude that 21 plaintiff has demonstrated that defendants have been deliberately indifferent to his serious 22 medical needs where the exhibits to the TRO and supplemental motion indicate plaintiff received 23 medical care for his foot, ankle, hips, sinus issues, cough, and congestion from doctors and nurses 24 between his entry into defendants’ custody in January 2020 to at least April 2020. (See Doc. No. 25 4 at 8; Doc. No. 14 at 14, 17, 23.) Plaintiff further alleges that defendants stated “it ‘appears’ the 26 fracture has healed,” while only relying on an x-ray but not a CT scan as other doctors had 27
2 The court notes that plaintiff has appealed to the Ninth Circuit in the Longano matter. See wOAOe □□ YU INN VR tw POI OPE Te □□□ VI
1 | ordered. (See Doc. No. 4 at 2, 11-12.) While the court is sympathetic to plaintiff's medical 2 | situation, his bare allegations that he did not receive a particular type of treatment alone are 3 | insufficient to prevail on a motion for a TRO and preliminary injunction. Cf Wiseman v. Cate, 4 | No. 1:14-cv-00831-DAD-SAB (PC), 2018 WL 4636181, at *3 (E.D. Cal. Sept. 26, 2018) (citing 5 | Snow, 681 F.3d at 987 (“A difference of opinion between a physician and the prisoner—or 6 | between medical professionals—concerning what medical care is appropriate does not amount to 7 | deliberate indifference.”)). Therefore, the court will deny plaintiff's motion for a TRO and 8 | preliminary injunction. 9 The court does not reach the matter of whether plaintiff's complaint states a cognizable 10 | claim of deliberate indifference to serious medical needs under the liberal pleading standards 11 | applicable to pro se pleadings. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The 12 | assigned magistrate judge will screen plaintiff's complaint as required by 28 U.S.C. § 1915A. 13 Accordingly, 14 1. The findings and recommendations issued on July 6, 2020 (Doc. No. 10) are 15 adopted in full; 16 2. Plaintiff's motion to supplement his objections to the pending findings and 17 recommendations (Doc. No. 14) is granted; 18 3. Plaintiff's motion for a temporary restraining order and a preliminary injunction 19 (Doc. No. 4) is denied; and, 20 4. This matter is referred back to the assigned magistrate judge for further 21 proceedings. 22 | IT IS SO ORDERED. sass - Dated: _ August 13, 2020 al, A □□□ 24 UNITED STATES DISTRICT JUDGE 25 26 27 28