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Burdick v. State

United States District Court, District of Nevada

March 31, 2015

HARRY BURDICK, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

Plaintiff’s Motion for Order to Show Cause (ECF No. 76)

Plaintiff’s Motion for Leave to File Excess Pages (ECF No. 98)

Plaintiff’s Second Motion to Alter or Amend Complaint (ECF No. 101)

ORDER

RICHARD F. BOULWARE, II United States District Judge

I. INTRODUCTION

This case is before the Court on Plaintiff Harry Burdick’s Order for Motion to Show Cause, filed on July 30, 2014, and Burdick’s Motion for Leave to File Excess Pages and Second Motion to Alter or Amend the Complaint, filed on September 18, 2014. ECF Nos. 76, 98, 101. In his Motion for Order to Show Cause, Burdick requests that the Court issue an Order requiring Defendants, who are officials and members of the medical and pharmacy staff at High Desert State Prison (HDSP), to show cause why a preliminary injunction should not issue against them. After a hearing and oral argument on September 4, 2014, the Court deferred its ruling on Burdick’s motion pending its receipt and consideration of further information from Defendants. For the reasons stated below, Burdick’s Motion for Order to Show Cause is denied without prejudice to being renewed at a future date. Burdick’s Motion for Leave to File and Motion to Amend are granted in part.

II. BACKGROUND

Burdick filed an application to proceed in forma pauperis in this Court on July 20, 2012. ECF No. 1. Burdick’s Complaint was screened on October 23, 2012. ECF No. 11. In its Screening Order, the Court dismissed the Complaint for failure to state a claim upon which relief can be granted, gave Burdick thirty days to amend his Complaint, and denied Burdick’s motions requesting a temporary restraining order and preliminary injunction because Burdick had not demonstrated a likelihood of success at the merits. Id. Burdick filed an Amended Complaint on November 2, 2012, which was screened on April 5, 2013. ECF Nos. 14, 22. In its second Screening Order, the Court identified further deficiencies in the Amended Complaint and directed Burdick to file a Second Amended Complaint, which Burdick did on April 19, 2013. ECF Nos. 22, 24. In its third Screening Order entered on October 24, 2013, the Court dismissed one of Burdick’s claims and some of the named defendants from the action, but allowed the Second Amended Complaint to proceed against Defendants Doni Jennings, Linda Adams, Cindy Majeshwar, Noreen Benaknin, Patricia Diliddo, and Harold Wickham. ECF No. 31. Burdick’s Second Amended Complaint is brought under 42 U.S.C. § 1983 and alleges that Defendants were deliberately indifferent to his medical needs in violation of his Eighth Amendment rights.

On July 30, 2014, Burdick filed the motion currently before the Court. Burdick moves the Court for an Order to Show Cause why a temporary restraining order or preliminary injunction should not issue against Defendants. ECF No. 76. In his motion, Burdick requests an order directing Defendants to: (1) refrain from conducting diabetes tests on him and begin to monitor his alleged problems with his liver and with poor circulation on his left side; (2) attempt to begin repairing or rehabilitating his liver and discover why he experiences bruising after receiving shots; (3) end their practice of delivering medications late to inmates; (4) refrain from conducting further tests or lab work on Burdick until Defendants begin delivering his medications on time; (5) order an MRI to assess what damage Burdick has suffered as a result of not receiving his medications on time; and (6) send Burdick to a specialist to examine his liver.

The Court held a hearing on September 4, 2014 at which it heard oral argument on Burdick’s motion. Minutes of Proceedings, ECF No. 93. The Court deferred ruling on the Motion for Order to Show Cause pending the receipt and consideration of further information. Id. The Court also ordered Defendants to have a physician employed by or contracted with the Nevada Department of Corrections conduct a physical exam of Burdick and completely review his medical files. Order, Sept. 5, 2014, ECF No. 92. The Court’s Order also directed Defendants to submit a report detailing the dates on which Burdick was to receive refills for his medications and the dates on which he actually received them. Id.

III. LEGAL STANDARD

A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter, 555 U.S. 7, 20 (2008)). The Ninth Circuit has also affirmed that a preliminary injunction may issue under the “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). According to this test, a plaintiff can obtain a preliminary injunction by demonstrating “that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.” Id. at 1134-35 (citation omitted).

IV. DISCUSSION

A. Motion for Order to Show Cause


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