United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
A. Procedural History
On September 4, 2014, this Court entered a screening order and stayed the case for ninety (90) days to give the parties an opportunity to settle their dispute. (Dkt. no. 7.) The Court permitted the portion of Count I alleging deliberate indifference to serious medical needs to proceed against Defendants Dr. Aranas, Dressen, Dressler, Gutierrez, Dr. Sanchez, Dr. Su, and Dr. McAffee. ( Id. at 8.) The Court ordered that no other pleadings or papers shall be filed during the stay. ( Id. )
On September 10, 2014, Plaintiff filed a motion for preliminary injunction. (Dkt. no. 10.) On September 23, 2014, Defendants entered a limited notice of appearance for the purpose of engaging in settlement discussions. (Dkt. no. 11.) On September 25, 2014, Defendants filed a motion seeking guidance as to whether they should respond to the merits of Plaintiff's motion for preliminary injunction despite the stay. (Dkt. no. 12.)
In the complaint, Plaintiff alleged the following: In the middle of June 2012, Plaintiff spoke to Dr. Aranas and explained that the medication Dr. Aranas had prescribed for acid reflux had not been helping. (Dkt. no. 8 at 6.) Plaintiff told Dr. Aranas that he had been in constant pain from his throat to his solar plex, had extreme heart burn pain, and vomiting. ( Id. ) Plaintiff asked to see a specialist but Dr. Aranas told Plaintiff to continue taking omeprazole if the pain did not go away and that he would request a consult with a gastroenterologist. ( Id. ) Plaintiff continued to submit medical kites about his pain and, in return, only received Tylenol. ( Id. ) At different times, Plaintiff explained to both Dr. Aranas and Dr. Sanchez that Tylenol made his esophageal condition worse because he would spit up blood. ( Id. )
On October 31, 2012, Plaintiff submitted a medical kite and asked to see a specialist to determine whether Plaintiff had esophageal ulcers. ( Id. ) On November 28, 2012, his grievance was denied. ( Id. ) Throughout the first nine months of 2013, Plaintiff wrote medical kites and saw Dr. Sanchez and Dr. Aranas and complained that the omeprazole and the antacids were not helping and that he was in constant pain. ( Id. ) During that period of time, Plaintiff received a couple of blood tests, a stool test, and a chest x-ray. ( Id. at 6-7.) On September 20, 2013, Plaintiff filed an informal grievance to see a specialist. ( Id. at 7.) Ben Gutierrez answered Plaintiff's grievance and stated that his medical concerns were being addressed and that diagnostic exams had been ordered. ( Id. ) On October 30, 2013, Plaintiff filed a first level grievance about his need to see a specialist. ( Id. ) Cheryl Dressler answered that, on November 30, 2013, Dr. Sanchez had requested a gastrointestinal consult for Plaintiff with the utilization committee. ( Id. ) Frank Dreesen had not timely responded to Plaintiff's grievance. ( See id. at 8.)
On December 12, 2013, Plaintiff saw Dr. Sean Su and asked when he would see a gastroenterologist specialist. ( Id. ) Dr. Su said that an appointment had been made for Plaintiff for December 20, 2013, at the University Medical Center ("UMC") in Las Vegas. ( Id. ) On January 21, 2014, Plaintiff saw Dr. Su and asked him what had happened to his appointment. ( Id. at 8-9.) Dr. Su stated that Plaintiff was still being reviewed by the utilization review panel. ( Id. at 9.) According to Plaintiff, his file states that the panel had approved his gastrointestinal consult on November 26, 2013. ( Id. )
On February 21, 2014, Plaintiff asked Gutierrez about his gastrointestinal consult. ( Id. ) Gutierrez told Plaintiff that UMC had notified Southern Desert Correctional Center ("SDCC") medical that they no longer take Nevada Department of Correction ("NDOC") inmates. ( Id. ) Gutierrez told Plaintiff that prison officials were going to transfer Plaintiff to the medical yard at the Northern Nevada Correctional Center ("NNCC"). ( Id. ) In April 2014, Plaintiff, who was still in pain, saw Dr. Sanchez. ( Id. ) Dr. Sanchez wanted to know why Plaintiff had not seen a gastrointestinal specialist. ( Id. )
On April 24, 2014, prison officials transferred Plaintiff to NNCC. ( Id. ) On April 29, 2014, Plaintiff saw Dr. McAffee. ( Id. ) Dr. McAffee said that he would recommend that Plaintiff get an endoscopic exam. ( Id. ) Plaintiff told Dr. McAffee that he already had been approved by the panel for that exam. ( Id. ) Dr. McAffee told Plaintiff that it was his own recommendation that needed to be approved. ( Id. ) Plaintiff asserts that, if he needed Dr. McAffee's approval, then prison officials should have sent him to NNCC in June 2012. ( Id. at 10.) While at NNCC, Plaintiff has written eleven (11) medical kites from May 5, 2014, through June 9, 2014, for his pain, difficulty breathing, and vomiting, but has not seen anyone from medical. ( Id. ) As of the date of the complaint, June 12, 2014, Plaintiff had been waiting forty-four (44) days for an endoscopic exam. ( Id. at 10, 15.)
C. Motion for Preliminary Injunction
In the motion for preliminary injunction, Plaintiff alleges the following: Plaintiff fears for his life because his health is declining at a rapid rate. (Dkt. no. 10 at 2.) Plaintiff has constant pain in his chest, back, a shortness of breath, and no strength. ( Id. ) Since arriving at NNCC on April 24, 2014, Plaintiff has submitted over eighteen (18) medical kites about his pain and finally saw a doctor on September 3, 2014. ( Id. ) That doctor told Plaintiff that he should learn to meditate. ( Id. ) Plaintiff believes that Dr. Aranas had directed the NNCC medical staff to offer less efficacious treatment by failing to inquire further into and treat Plaintiff's severe pain. ( Id. ) Plaintiff notes that it took him over eight (8) months to get an endoscopic exam, which finally occurred on June 23, 2014. ( Id. ) Plaintiff states that he needs a CT exam. ( Id. ) Plaintiff states that the medical staff's failure to respond to Plaintiff's ongoing complaints of chronic and debilitating pain constitutes deliberate indifference. ( Id. at 3.) The NDOC needs to start taking Plaintiff's medical needs seriously and get him a CT exam to help him figure out what is wrong. ( Id. ) Plaintiff seeks a CT exam and a specialist to help him figure out what is wrong. ( Id. )
Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of right." Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) ( quoting Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act ("PLRA"), preliminary injunctive relief must be ...