Francis 265157 v. Shinn

1 JL 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 James Francis, No. CV 22-02071-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER [12] David Shinn, et al., [13] Defendants. [14] 15 Plaintiff James Francis, who is currently confined in the Arizona State Prison 16 Complex-Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 17 and has paid the filing and administrative fees. Before the Court is Plaintiff’s Motion for 18 Emergency Preliminary Injunction (the “Motion”) (Doc. 2). 19 The Court will grant the Motion and will refer this case to the Magistrate Judge for 20 all pretrial proceedings. 21 I. Background 22 In his Complaint, Plaintiff sues NaphCare, Centurion, former Arizona Department 23 of Corrections, Rehabilitation and Reentry (ADC) Director David Shinn,1 Nurse 24 Practitioner Siji Thomas, and Doctor Rodney Stewart. On screening under 28 U.S.C. § 25 1915A(a), the Court determined that Plaintiff stated Eighth Amendment medical care 26 claims against each Defendant. (Doc. 5.) The Court ordered expedited service on [28] 1 David Shinn retired on January 4, 2023. The Court will therefore substitute Deputy Director Joe Profiri, in his official capacity only, for purposes of Plaintiff’s request for injunctive relief. Fed. R. Civ. P. 25(d). 1 Defendants NaphCare and Shinn and ordered them to answer the Complaint and respond 2 to the Motion on an expedited basis. The Court also ordered Defendants Centurion, 3 Stewart, and Thomas to answer the Complaint. (Id.) 4 On December 27, 2022, Defendants NaphCare and Shinn answered the Complaint 5 and filed a Response opposing Plaintiff’s Motion. (Docs. 12-14.) On January 3, 2023, 6 Plaintiff filed a Reply to Defendants’ Response. (Doc. 17.) 7 II. Injunctive Relief Standard 8 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 9 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 10 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 11 U.S. 968 , 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 12 U.S. 7 , 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 13 never awarded as of right”). Nonetheless, “federal courts must not shrink from their 14 obligation to enforce the constitutional rights of all persons, including prisoners” and must 15 not “allow constitutional violations to continue simply because a remedy would involve 16 intrusion into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037 , 17 1047 (9th Cir. 2021) (citation omitted). 18 A plaintiff seeking injunctive relief under Rule 65 of the Federal Rules of Civil 19 Procedure must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer 20 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 21 favor; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. When the 22 government opposes a preliminary injunction, “[t]he third and fourth factors of the 23 preliminary-injunction test—balance of equities and public interest—merge into one 24 inquiry.” Porretti, 11 F.4th at 1047. The “balance of equities” concerns the burdens or 25 hardships to a prisoner complainant compared with the burden on the government 26 defendants if an injunction is ordered. Id. The public interest mostly concerns the 27 injunction’s impact on nonparties rather than parties. Id. (citation omitted). Regardless, [28] 1 “[i]t is always in the public interest to prevent the violation of a party’s constitutional 2 rights.” Id. (citation omitted). 3 Where a plaintiff seeks a mandatory injunction, rather than a prohibitory injunction, 4 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 5 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 6 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 7 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 , 879 8 (9th Cir. 2009)). Further, under the Prison Litigation Reform Act, injunctive relief must 9 be narrowly drawn and be the least intrusive means necessary to correct the harm. 18 10 U.S.C. § 3626 (a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 11 2000). 12 “The urgency of obtaining a preliminary injunction necessitates a prompt 13 determination” and makes it difficult for a party to procure supporting evidence in a form 14 that would be admissible at trial. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th 15 Cir. 1984). As a result, “a preliminary injunction is customarily granted on the basis of 16 procedures that are less formal and evidence that is less complete than in a trial on the 17 merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). In its determination on 18 a motion for a preliminary injunction, “a court may properly consider evidence that would 19 otherwise be inadmissible at trial.” Cherokee Inc. v. Wilson Sporting Goods Co., No. CV 20 15-04023 BRO (Ex), 2015 WL 3930041 , at *3 (C.D. Cal. June 25, 2015); see Johnson v. 21 Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (district court did not abuse its discretion 22 by considering “unverified client complaints” and the plaintiff’s counsel’s interested 23 declaration when it granted a preliminary injunction); Flynt Distrib. Co., 734 F.2d at 1394 24 (the district court has discretion to rely on hearsay statements when deciding whether to 25 issue a preliminary injunction). A court may also consider evidence or developments that 26 postdate the pleadings. Farmer v. Brennan, 511 U.S. 825, 846 (1994). 27 III. Motion for Injunctive Relief 28 In his Motion, Plaintiff asks the Court to issue an emergency order requiring 1 Defendants to “immediately take Plaintiff to the Cancer Center for cancer screening and 2 evaluation.” (Doc. 2 at 1.) Plaintiff asserts that Defendants “know” he has cancer “from 3 their own personal medical views” but do not know what type of cancer he has because 4 Defendants have delayed his cancer screening. (Id. at 1-2.) Plaintiff claims his condition 5 has become life-threatening; he “continues to urinate blood weekly”; and he suffers 6 vomiting, nausea, weight loss, loss of appetite, difficulty sleeping, and extreme chest pain. 7 (Id. at 2.) Plaintiff also suffers extreme swelling in his legs, feet, and stomach. (Id.) 8 IV. Discussion 9 A. Relevant Facts 10 1. Allegations in the Complaint 11 On January 11, 2022, Plaintiff alerted prison staff that he was urinating blood. (Doc. 12 1 at 6.) Staff came to the restroom, saw Plaintiff’s blood in the toilet, and activated an 13 emergency Incident Command System. (Id.) Plaintiff was taken to Cook Unit’s medical 14 department, where he was evaluated by medical staff. (Id.) Medical staff told Plaintiff it 15 was “normal to have bleeding from cancer” and that his condition would be closely 16 monitored. (Id.) 17 Defendant Thomas evaluated Plaintiff and told him that she did not believe his 18 cancer was causing him to urinate blood and that she “felt that it was normal for males to 19 sometime[s] bleed” while urinating due to injury, rather than cancer. (Id. at 12.) Plaintiff 20 told Defendant Thomas that he had not suffered an injury and asked her to send him to the 21 hospital to “see what is happening to him.” (Id. at 13.) Defendant Thomas told Plaintiff 22 she would approve a hospital visit if he urinated blood three days consecutively, but his 23 bleeding had stopped at that time, and he could return to his unit. (Id.) Plaintiff asked 24 Defendant Thomas about his cancer consultation, and Thomas told him that she was 25 “waiting to see if [his] condition would wors[]en” and that she did not believe his cancer 26 was “deadly at this point.” (Id.) 27 On February 22, 2022, Plaintiff complained to prison staff that he was having heart 28 problems and pain in his chest and stomach and needed to see medical staff. (Id. at 7.) 1 Plaintiff was taken to Cook Unit for medical evaluation. (Id.) Medical staff told Plaintiff 2 his chest pain was due to his cancer and that he would experience this type of pain until 3 “they” got his cancer under control. (Id.) Defendant Thomas conducted an EKG and told 4 Plaintiff the EKG showed he was having “heart problems,” but she would “just monitor 5 him to see if his condition wors[]en[ed].” (Id. at 13.) Plaintiff asked Defendant Thomas 6 to schedule him to see a cardiologist. (Id.) Defendant Thomas told him that the pain he 7 was experiencing was “normal” because of his “suspected cancer” and that she would 8 continue to monitor his condition. (Id.) 9 Subsequently, Plaintiff’s cancer spread to his gall bladder. (Id. at 7.) On July 5, 10 2022, Plaintiff experienced intense pain and complained to prison staff that he was again 11 urinating blood. (Id.) Staff saw the blood in the toilet, and Plaintiff was taken to Cook 12 Unit. (Id.) Defendant Thomas evaluated Plaintiff and told him that his gall bladder was 13 infected and that it was “possible” the cancer had spread to his gall bladder. (Id. at 14.) 14 Defendant Thomas told Plaintiff she would submit a request for an evaluation at the Cancer 15 Center, which would take at least two to three months for approval. (Id.) Plaintiff told 16 Defendant Thomas his condition warranted emergency treatment, and Thomas responded 17 that his cancer would not “kill him in 2-3 months.” (Id.) 18 On September 7, 2022, Defendant Thomas called Plaintiff to the medical unit. 19 Defendant Thomas was “angry” and told Plaintiff to stop submitting health needs requests 20 (HNRs) that stated he had leukemia because Plaintiff’s specific type of cancer had not been 21 determined. (Id. at 8.) Defendant Thomas also told Plaintiff that if he did not stop using 22 the word “leukemia,” he would receive a disciplinary ticket for lying to medical and prison 23 staff. (Id.) Plaintiff asked Defendant Thomas about the status of his cancer evaluation. 24 Defendant Thomas told Plaintiff the request was still under review. (Id. at 14.) 25 On September 10, 2022, Defendant Thomas called Plaintiff to the medical unit and 26 told him that Defendant Stewart had cancelled a consultation with a urologist for Plaintiff’s 27 cancer. (Id. at 8.) Defendant Thomas told Plaintiff that Defendant Stewart had advised 28 Thomas that Centurion would no longer be the medical provider for ADC prisoners as of 1 October 1, 2022, and that Plaintiff would have to wait for his cancer evaluation until the 2 new provider took over. (Id.) 3 On September 13, 2022, Plaintiff again urinated blood and alerted medical staff that 4 he needed medical attention. (Id. at 9.) Staff again saw the blood in the toilet and again 5 took him to Cook Unit for evaluation. (Id.) Defendant Thomas evaluated Plaintiff and had 6 him urinate in a cup. (Id. at 15.) Plaintiff went to the restroom and came back with a “cup 7 of blood.” (Id.) Defendant Thomas had Plaintiff wait at the medical unit for six hours and 8 urinate in a cup every two hours. (Id.) The third time Plaintiff urinated, there was still 9 blood in his urine. (Id.) Plaintiff was told his “PSA” blood test “show[ed] cancer,” but 10 Plaintiff would have to “wait until the new medical provider comes” on October 1, 2022. 11 (Id.) 12 On October 1, 2022, Defendant NaphCare took over the healthcare contract. 13 Sometime in October 2022, Defendant Thomas called Plaintiff to Cook Unit and told him 14 that she would no longer be his provider because Defendant NaphCare was transferring her 15 to Meadows Unit. (Id. at 17.) Defendant Thomas told Plaintiff that NP Adams would work 16 with Plaintiff regarding his cancer screening. (Id.) Since then, Defendant NaphCare has 17 not scheduled a cancer evaluation for Plaintiff, and NP Adams has told Plaintiff that she 18 has “done all she can do” to obtain approval from NaphCare’s medical board for a cancer 19 consultation. (Id.) 20 2. Plaintiff’s Medical Records 21 Plaintiff’s medical records, submitted by Defendants in support of their Response, 22 reflect the following: 23 On June 26, 2022, Plaintiff underwent a CT of his abdomen and pelvis without 24 contrast, which had been ordered by Defendant Thomas. (Doc. 14-1 at 2.) The CT showed 25 a 2.8 cm x 2.1 cm mass along the left wall of the urinary bladder suggestive for malignancy 26 and cholelithiasis (gallstones). (Id.) Cystoscopy was recommended. (Id.) 27 On July 13, 2022, Defendant Thomas ordered an offsite prostate specific antigen 28 test. (Id. at 37.) Plaintiff underwent the test on July 14, 2022. (Id.) Defendant Thomas 1 noted that the results were “essentially normal,” and no further action was necessary. (Id. 2 at 39.) 3 On September 22, 2022, Plaintiff saw Nurse Practitioner Maryjoy D. Balbarino at 4 Arizona Urology Telemedicine. (Id. at 4.) Balbarino noted that Plaintiff had reported 5 “painless gross hematuria,” for which a CT had been ordered, and Plaintiff had been 6 referred for evaluation of a bladder mass found on the CT. (Id.) Balbarino noted that she 7 discussed office cystoscopy with Plaintiff, and Plaintiff agreed to undergo the procedure, 8 which Balbarino noted would be scheduled for another day. (Id. at 4-5.) 9 On September 28, 2022, Plaintiff was seen at Florence Anthem General Surgery 10 Clinic for a general surgery consultation. (Id. at 40.) The presumed diagnosis was noted 11 as symptomatic cholelithiasis and umbilical hernia, and the recommended treatment was 12 noted as laparoscopic cholecystectomy and umbilical hernia repair. (Id.) The 13 recommendation was to schedule surgery after a workup of Plaintiff’s urinary bladder 14 mass. (Id.) 15 On September 29, 2022, Defendant Thomas submitted an offsite consultation 16 request for the cystoscopy. (Id. at 6.) The request was authorized the next day. (Id. at 7.) 17 An urgent Off-Site/Consult Order noted that the preferred date for the cystoscopy was 18 October 4, 2022, or the first available appointment. (Id. at 9.) The cystoscopy initially 19 was scheduled for December 6, 2022, but that appointment was canceled by the clinic 20 because the doctor was unavailable. (Id.) The cystoscopy is now scheduled for January 21 2023. (Id.) 22 On November 28, 2022, Plaintiff was sent to the Mountain Vista Medical Center 23 Emergency Department for blood in his urine and upper right quadrant pain. (Id. at 22.) 24 Plaintiff saw Dr. Brian Gallman and reported that his hematuria had started in August 2021 25 and had not ceased. Plaintiff also reported that he was sent to the Emergency Department 26 “to have his hematuria shock now because he needs a surgery” and could not “have 27 hematuria before a surgery.” (Id.) Dr. Gallman noted that Plaintiff should be on 28 ciprofloxacin 250 mg every 12 hours for 5 to 7 days and recommended further outpatient 1 evaluation by a urologist. (Id. at 17.) Plaintiff was referred to Defendant Stewart for 2 follow-up care. (Id.) 3 B. Defendants’ Opposition 4 Defendants oppose Plaintiff’s Motion. (Doc. 14.) They advance several bases for 5 their opposition: Plaintiff’s Motion is “wholly unsupported by any medical evidence or 6 opinion”; Plaintiff does not address the Winter factors; the Motion contains several 7 statements that are inconsistent with his “actual health condition”; and the Motion is moot 8 because Plaintiff “has been and is being sent out with respect to the bladder mass just 9 discovered at the end of August 2022.” (Id. at 1.) 10 Defendants contend “[t]here is no recommendation by urology or even the doctors 11 at the recent hospital visit that Plaintiff needs to go to a cancer screening at this point, nor 12 that he has been diagnosed with cancer.” (Doc. 14 at 2.) Defendants concede that the 13 urologist noted a “suggestion of malignancy” from the CT of Plaintiff’s bladder but noted 14 that the urologist recommended a biopsy as the next step. (Id. at 2 n.3.) Defendants assert 15 that Plaintiff is being “screened” for potential cancer in light of the bladder mass, and his 16 hematuria has been “addressed beyond urology.” (Id. at 2.) Defendants also note that 17 there is no reference in Plaintiff’s medical records of any complaints of significant weight 18 loss or nausea and vomiting. (Id.) Thus, according to Defendants, Plaintiff’s request for 19 injunctive relief is moot. (Id. at 3.) 20 With respect to the Winter factors, Defendants further argue that Plaintiff has not 21 and cannot demonstrate he is likely to succeed on the merits of his claim because there has 22 been no deliberate indifference with respect to the treatment for his bladder mass. (Id.) 23 Defendants contend Plaintiff has not and cannot demonstrate that he is likely to suffer 24 irreparable harm because he “cannot rely on possible injury he might still suffer.” (Id.) 25 Defendants also assert that Plaintiff cannot establish that the balance of equities tips in his 26 favor because “he is seeking injunctive relief that he is already receiving.” (Id. at 4.) 27 Defendants argue that for the same reason, Plaintiff cannot demonstrate that an injunction 28 is in the public interest. (Id.) 1 C. Plaintiff’s Reply 2 In his Reply, Plaintiff states that between July and September 2022, he had 12 3 medical Incident Command System activations for emergency treatment for what 4 Defendants “believed is a form of cancer that has become aggressive.” (Doc. 17 at 2.) 5 Plaintiff contends Defendants are “intentionally causing him to suffer death from the 6 cancer,” and the continued delay in treatment “will cause immediate death.” (Id. at 3-4.) 7 Plaintiff argues that “every medical staff” has said Plaintiff needs emergency treatment to 8 determine what type of cancer he has, but “everybody is ‘kicking the can down the road.” 9 (Id. at 4.) 10 D. Analysis 11 1. Mootness 12 Defendants contend Plaintiff’s request for injunctive relief is moot because he is 13 scheduled to undergo the specialist-recommended cystoscopy in January 2023. Although 14 Plaintiff’s requested relief is that he undergo “cancer screening,” it is not an open-ended 15 request for an appointment at some date long into the future. Since the specialist’s initial 16 recommendation in June 2022 that Plaintiff undergo the cystoscopy, no appointment has 17 taken place and there is no guarantee the January 2023 appointment will take place. Thus, 18 the Court concludes Plaintiff’s request for injunctive relief is not moot. 19 2. Winter Factors 20 a. Likelihood of Success 21 To support a medical care claim under the Eighth Amendment, a prisoner must 22 demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 23 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are 24 two prongs to the deliberate-indifference analysis: an objective standard and a subjective 25 standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). A 26 “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in 27 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin 28 v. Smith, 974 F.2d 1050 , 1059–60 (9th Cir. 1992), overruled on other grounds by WMX 1 Techs., Inc. v. Miller, 104 F.3d 1133 , 1136 (9th Cir. 1997) (en banc) (internal citation 2 omitted). 3 Second, a prisoner must show that the defendant’s response to that need was 4 deliberately indifferent. Jett, 439 F.3d at 1096 . “Prison officials are deliberately 5 indifferent to a prisoner’s serious medical needs when they ‘deny, delay or intentionally 6 interfere with medical treatment.’” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 7 1990) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). Deliberate 8 indifference may also be shown where prison officials fail to respond to a prisoner’s pain 9 or possible medical need. Jett, 439 F.3d at 1096 . “In deciding whether there has been 10 deliberate indifference to an inmate’s serious medical needs, [courts] need not defer to the 11 judgment of prison doctors or administrators.’” Colwell v. Bannister, 763 F.3d 1060 , 1066 12 (9th Cir. 2014) (quoting Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989)). 13 Even if deliberate indifference is shown, to support an Eighth Amendment claim, 14 the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096 ; see 15 Hunt, 865 F.2d at 200 (delay in providing medical treatment does not constitute Eighth 16 Amendment violation unless delay was harmful). 17 Defendants do not argue that Plaintiff’s bladder mass, hematuria, and pain do not 18 amount to serious medical needs. Plaintiff’s medical records demonstrate that he has a 19 serious medical need. See McGuckin, 974 F.2d at 1059–60. 20 Courts have routinely found that failure to follow the specialist’s recommendation 21 may amount to a course of treatment that is medically unacceptable and exhibit deliberate 22 indifference. See Colwell, 763 F.3d at 1069 (denying summary judgment where prison 23 officials “ignored the recommendations of treating specialists and instead relied on the 24 opinions of non-specialist and non-treating medical officials who made decisions based on 25 an administrative policy”); Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (where 26 the treating physician and specialist recommended surgery, a reasonable jury could 27 conclude that it was medically unacceptable for the non-treating, non-specialist physicians 28 to deny recommendations for surgery), overruled in part on other grounds by Peralta v. 1 Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 2 1999) (the defendant physician’s refusal to follow the advice of treating specialists could 3 constitute deliberate indifference to serious medical needs); McNearney v. Wash. Dep’t of 4 Corrs., C11-5930 RBL/KLS, 2012 WL 3545267 , at *26 (W.D. Wash. June 15, 2012) (in 5 granting a preliminary injunction for specialist treatment, the district court found that the 6 prisoner plaintiff showed a likelihood of success on the merits of her Eighth Amendment 7 claim where the defendants failed to follow an orthopedic surgeon’s strong 8 recommendation for further orthopedic evaluation). 9 Plaintiff’s medical records demonstrate that a cystoscopy of the bladder mass was 10 first recommended by a radiologist on June 26, 2022, when Plaintiff underwent the CT of 11 his abdomen and pelvis. (Doc. 14-1 at 2.) Nearly three months later, on September 22, 12 2022, Plaintiff was seen at Arizona Urology, discussed the cystoscopy with NP Balbarino, 13 and agreed to undergo the procedure “another day.” (Id. at 4-5.) On September 28, 2022, 14 Plaintiff had a general surgery consultation, and the next day, Defendant Thomas submitted 15 an offsite consultation request for the cystoscopy. Although the Consult Order was deemed 16 urgent, the cystoscopy was scheduled for December 6, 2022, more than five months after 17 the original recommendation that Plaintiff undergo the procedure. To date, the cystoscopy 18 has not been performed, despite recommendations from a radiologist, a urology specialist, 19 and a general surgeon. 20 Defendants’ only explanation for the delay in Plaintiff undergoing the cystoscopy 21 is that Plaintiff’s December 6, 2022 appointment was canceled because the doctor was 22 unavailable. Defendants are charged with providing necessary medical care to Plaintiff 23 and the fact that there was a scheduling conflict with the urologist does not absolve them 24 of their responsibility. Defendants provide no argument that the delay is acceptable. See 25 Estelle, 429 U.S. at 103 (Eighth Amendment applies even to “less serious cases, [where] 26 denial of medical care may result in pain and suffering which no one suggests would serve 27 any penological purpose”); McGuckin, 974 F.2d at 1060 (pain and anguish suffered by 28 prisoner constituted harm sufficient to support a § 1983 action). 1 On this record, Plaintiff has established a likelihood of success on the merits of his 2 deliberate indifference claims. Thus, the first Winter factor is met. 3 b. Irreparable Harm 4 The second Winter factor requires Plaintiff to demonstrate that, absent an injunction, 5 he will be exposed to irreparable harm. Caribbean Marine Servs. Co., Inc. v. Baldrige, [6] 844 F.2d 668, 674 (9th Cir. 1988); see Winter, 555 U.S. at 22. “[T]here must be a presently 7 existing threat of harm, although injury need not be certain to occur.” Villanueva v. Sisto, 8 CIV S-06-2706 LKK EFB P, 2008 WL 4467512 , at *3 (E.D. Cal. Oct. 3, 2008) (citing 9 FDIC v. Garner, 125 F.3d 1272 , 1279– 80 (9th Cir. 1997)). 10 To support a mandatory preliminary injunction for specific medical treatment, 11 Plaintiff must demonstrate ongoing harm or the present threat of irreparable injury, not a 12 past injury. See Conn. v. Mass., 282 U.S. 660, 674 (1931) (an injunction is only appropriate 13 “to prevent existing or presently threatened injuries”); Caribbean Marine, 844 F.2d at 674 . 14 Delays in necessary treatment and pain can constitute irreparable harm. See Porretti, 11 15 F.4th at 1050 (“the deprivation of [a prisoner’s] constitutional right to adequate medical 16 care is sufficient to establish irreparable harm”) (quoting Edmo v. Corizon, Inc., 935 F.3d 17 757, 798 ) (9th Cir. 2019)); Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004) (irreparable 18 harm includes delayed and/or complete lack of necessary treatment, and increased pain); 19 McNearney, 2012 WL 3545267 , at *14 (finding a likelihood of irreparable injury where 20 the evidence showed that the plaintiff continued to suffer unnecessary pain due to the 21 defendants’ inadequate treatment plan); Von Collin v. Cnty. of Ventura, 189 F.R.D. 583 , 22 598 (C.D. Cal. 1989) (“[d]efendants do not argue that pain and suffering is not irreparable 23 harm, nor could they”). 24 Defendants contend Plaintiff has not shown he is likely to suffer irreparable harm 25 because he “cannot rely on possible injury he might still suffer.” (Id.) Plaintiff’s medical 26 records demonstrate that a specialist believed the bladder mass found in June 2022 27 “suggested” malignancy. More than six months later, Plaintiff has not undergone the 28 specialist-recommended cystoscopy to determine whether the mass is malignant. Plaintiff 1 also states that he continues to urinate blood and suffer vomiting, nausea, weight loss, loss 2 of appetite, difficulty sleeping, extreme chest pain, and swelling in his extremities. (Doc. 3 2 at 2.) See S. Cal. Housing Rights Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. 4 Supp. 2d 1061, 1070 (C.D. Cal. 2005) (a declarant has personal knowledge of his or her 5 own symptoms). On this record, Plaintiff’s injury is not speculative; he is suffering harm 6 in the form of delayed or lack of treatment and ongoing pain. See Rodde, 357 F.3d at 999 . 7 Defendants’ failure to provide medical treatment for Plaintiff’s pain and serious medical 8 need is depriving him of adequate medical care, thereby establishing irreparable harm. See 9 Porretti, 11 F.4th at 1050. Accordingly, Plaintiff satisfies the second Winter element. 10 c. Balance of Equities and Public Interest 11 Courts “must balance the competing claims of injury and must consider the effect 12 on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 13 24 (quotation omitted). “[I]t is always in the public interest to prevent the violation of a 14 party’s constitutional rights.” Porretti, 11 F.4th at 1047. Moreover, “the public has a 15 strong interest in the provision of constitutionally-adequate health care to prisoners.” 16 McNearney, 2012 WL 3545267 , at *16 (quoting Flynn v. Doyle, 630 F. Supp. 2d 987 , 993 17 (E.D. Wis. 2009)); see Farnam v. Walker, 593 F. Supp. 2d 1000, 1017 (C.D. Ill. 2009) 18 (holding that the public had an interest in the maintenance of prisoner’s health during the 19 pendency of the lawsuit). 20 Defendant essentially argue that Plaintiff cannot show the balance of equities tips 21 in his favor or that the public interest weighs in his favor because his request for injunctive 22 relief is moot. As stated above, the request for injunctive relief is not moot. Without an 23 injunction, Plaintiff risks going without diagnosis of possible cancer, and consequently, 24 any treatment for his serious medical need. Accordingly, the balance of equities tips 25 sharply in Plaintiff’s favor. 26 Furthermore, it is in the public interest to provide Plaintiff the specialist27 recommended diagnostic procedure and any recommended specialist treatment to ensure [28] 1 Plaintiff receives constitutionally adequate health care. Thus, the public interest weighs in 2 favor of granting an injunction. 3 In sum, the Court finds that Plaintiff has satisfied the Winter factors. 4 3. Remaining Factors 5 Because of the substantial delays in addressing Plaintiff’s need for specialty medical 6 care, ordering Defendants to immediately provide the appointment for the cystoscopy and 7 to immediately comply with any specialist-recommended treatment is the most narrowly 8 drawn relief necessary to correct the harm identified by Plaintiff. See 18 U.S.C. 9 § 3626(a)(2). 10 In this instance, the bond requirement can be waived as there is no request for a 11 bond nor any showing that Defendants would incur compensable costs or damages if an 12 injunction issues. See Johnson, 572 F.3d at 1086 (the district court may dispense with the 13 filing of a bond). 14 For the above reasons, the Court will grant Plaintiff’s request for an injunction with 15 respect to ordering that, if it has not happened already, Plaintiff be taken immediately to 16 undergo a cystoscopy of the bladder mass. Defendants will also be ordered to immediately 17 provide any treatment or follow up recommended by the specialist at or following the 18 cystoscopy encounter. The Court expects that Plaintiff will notify the Court if any 19 recommended treatment is not provided. 20 IT IS ORDERED: 21 (1) Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Deputy 22 Director Joe Profiri, in his official capacity only, is substituted for Defendant Shinn. 23 (2) Plaintiff’s Motion for Emergency Preliminary Injunction (Doc. 2) is granted 24 as follows: 25 (a) Defendants must ensure that Plaintiff undergoes a cystoscopy of his 26 bladder mass within ten (10) days of the date of this Order. 27 (b) Within fifteen (15) days of the date of this Order, Defendants must 28 file a Notice indicating that Plaintiff received the cystoscopy and 1 attach a copy of the medical record documenting the results of the 2 cystoscopy. 3 (c) Defendants must immediately provide any treatment or follow up 4 recommended by the offsite specialist. 5 (3) This relief is narrowly drawn, extends no further than necessary to correct 6| the harm, and is the least intrusive means necessary to correct the harm. See 18 U.S.C. § 3626 (a)(2). 8 (4) This Order is in effect until further notice from the Court. 9 (5) Plaintiff is not required to post bond. 10 (6) This matter is referred to Magistrate Judge Deborah M. Fine pursuant to 11 | Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 12 | authorized under 28 U.S.C. § 636 (b)(1). 13 Dated this 20th day of January, 2023. [14] 15 a 3 [16] 7 _ James A. Teil Org Senior United States District Judge