(PC) Solvey v. Sunkara

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 STANLEY SOLVEY, Case No. 1:23-cv-00682-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. TEMPORARY RESTRAINING ORDER AND 14 SAVITHA SUNKARA, et al., PRELIMINARY INJUNCTION (Doc. 3) 15 Defendants. FOURTEEN (14) DAY DEADLINE [16] Clerk of Court to Assign District Judge [17] 18 Plaintiff Stanley Solvey is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action filed under 42 U.S.C. § 1983 . On May 4, 2023, Plaintiff filed the instant 20 motion for a temporary restraining order (TRO) and preliminary injunction. (Doc. 3.) By 21 separate order, the Court has screened Plaintiff’s complaint, finding it stated a cognizable 22 medical indifference claim against Defendant Sunkara only but failed to state any other claims 23 against Defendant Sunkara and the other defendants. The Court granted Plaintiff thirty days to 24 file an amended complaint. Because this case lacks an operative complaint and Defendants have 25 not been served, this Court does not presently have personal jurisdiction over Defendants or 26 subject matter jurisdiction over this action. 27 I. BACKGROUND 1 Kern Valley State Prison (“KVSP”), where Plaintiff saw Dr. Eisenbud, an endocrinologist 2 specializing in diabetes. (Id. at 9.) Dr. Eisenbud diagnosed Plaintiff with insulin resistance that 3 required a non-insulin medication, and upon Dr. Eisenbud’s recommendation, the CDCR doctor 4 prescribed Victoza non-insulin injections. Victoza was effective at controlling Plaintiff’s 5 diabetes. Plaintiff also suffers from peripheral neuropathy and extreme pain in his feet. (Id. at 6 10.) 7 When Plaintiff was transferred to California State Prison – Corcoran (“Corcoran”) in 8 2021, he was evaluated by Dr. Sunkara. (Id. at 11.) On July 10, 2021, blood tests revealed 9 Plaintiff’s A1C at 5.9, an “optimal” level and no pain. Dr. Sunkara discontinued Victoza without 10 consulting Plaintiff. (Id.) Although Plaintiff explained he wanted to wean himself off Lyrica for 11 his neuropathy, Dr. Sunkara increased Plaintiff’s dosage of Lyrica. (Id. at 12.) 12 On September 21, 2021, Plaintiff filed a CDCR Form 602-HC medical grievance against 13 Dr. Sunkara for intentional infliction of cruel and unusual punishment, deliberate indifference, 14 and conscious disregard for Plaintiff’s serious medical condition. (Id. at 11.) As part of Plaintiff’s 15 administrative review, RN Vasquez interviewed Plaintiff, and McDaniel and Gates denied 16 Plaintiff’s appeals. 17 In the instant motion for a TRO and preliminary injunction, Plaintiff seeks injunctive 18 relief restoring the status quo with his earlier prescription for Lanus insulin to control his blood 19 sugar levels and diabetic symptoms; enjoining Defendants from further interference with the 20 specialist’s medication recommendation; referring Plaintiff to a gastroenterologist to treat 21 stomach issues; and provide arm straps to relieve tension. 22 II. DISCUSSION 23 A. Jurisdiction and Rule 65 24 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 25 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). The Court’s jurisdiction 26 is limited to the parties in this action and to the viable legal claims upon which this action is 27 proceeding. Summers v. Earth Island Inst., 555 U.S. 488 , 491–93 (2009). It may issue preliminary 1 the lawsuit have been established. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 2 U.S. 344, 350 (1999). 3 Under Rule 65, an injunction binds only “the parties to the action,” their “officers, agents, 4 servants, employees, and attorneys,” and “other persons who are in active concert or 5 participation.” Fed. R. Civ. P. 65(d)(2)(A)–(C). The movant must also give “notice to the adverse 6 party” before the Court can issue injunctive relief. Id. at 65(a). A putative defendant “becomes a 7 party officially, and is required to take action in that capacity, only upon service of summons or 8 other authority-asserting measure stating the time within which the party must appear to defend.” 9 Murphy Bros., 526 U.S. at 350. The pendency of this action does not give the Court jurisdiction 10 over prison officials in general. Summer, 555 U.S. at 491–93 (2009). 11 The Court has concurrently issued a screening order finding a single, cognizable claim for 12 Eighth Amendment medical indifference against Dr. Sunkara and granting Plaintiff thirty days to 13 respond to the order. Therefore, at this early stage of the proceedings, this case lacks an operative 14 complaint that can be served on Defendants. Without an operative complaint and service on 15 Defendants, there is no case or controversy before the Court, City of L.A. v. Lyons, 461 U.S. 95 , 16 102 (1983), and Plaintiff’s motion for a preliminary injunction is premature. 17 B. Nexus 18 The injunctive relief sought must be related to the claims brought in the complaint. See 19 Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). In other 20 words, “there must be a relationship between the injury claimed in the motion for injunctive relief 21 and the conduct asserted in the underlying complaint.” Id. at 636 (adopting Devose v. Herrington, [22] 42 F.3d 470, 471 (8th Cir. 1994)). Absent a nexus between the injury claimed in the motion and 23 the underlying complaint, the Court lacks the authority to grant Plaintiff injunctive relief. Id. A 24 preliminary injunction only is appropriate when it grants relief of the same nature as that to be 25 finally granted. Id. (citing De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)). 26 Plaintiff’s complaint relates only to his treatment for diabetes and neuropathic pain in his 27 feet. Plaintiff’s instant request for a TRO and injunction must be related to these issues. To the 1 extent that Plaintiff seeks injunctive relief concerning his stomach and arms, the request lacks the 2 appropriate nexus to Plaintiff’s complaint. 3 C. Winter Factors 4 Even if the motion were properly before the Court, Plaintiff’s request for a TRO and 5 preliminary injunction must be denied on the merits. A preliminary injunction may issue only if 6 the movant establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm 7 in the absence of preliminary relief; (3) that the balance of equities tips in his/her favor; (4) that 8 an injunction is in the public interest. Winter, 555 U.S. at 20 . The movant bears the burden of 9 satisfying all four prongs. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 10 2011). 11 With respect to assessing the likelihood that Plaintiff will succeed on the merits of his 12 claim, presently, the Court has nothing more before it than the allegations set forth in the 13 complaint. As set forth in the Court’s screening order, “[d]eliberate indifference is a high legal 14 standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To demonstrate deliberate 15 indifference, a plaintiff must show that the course of treatment taken is “medically unacceptable 16 under the circumstances and that the defendants chose this course in conscious disregard of an 17 excessive risk to the plaintiff’s health.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 18 2016) (citations and punctuation omitted). Moreover, the indifference must be “substantial.” 19 Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980). Of particular relevance to the 20 Court’s analysis of Plaintiff’s claim here, under the Eighth Amendment, differences of opinion 21 between a physician and an inmate, or between medical professionals, concerning appropriate 22 medical care does not rise to deliberate indifference. Hamby, 821 F.3d at 1092 . 23 Plaintiff’s allegations asserting the discontinuation of Victoza was medically 24 unacceptable under the circumstances were sufficient to state a claim; however, given the high 25 legal standard at issue, without evidence, the Court cannot conclude that Plaintiff is likely to 26 prevail on the merits. See Int’l Molders’ & Allied Workers’ Local Union No. 164 v. Nelson, 799 27 F.2d 547, 551 (9th Cir. 1986) (in deciding whether to issue a preliminary injunction, the Court 1 | (quoting Dymo Industries, Inc. v. Tapewriter, Inc., 326 F.2d 141, 143 (9th Cir. 1964)). Similarly, 2 | because the record is unclear what medications Plaintiff is currently taking and whether the 3 | medications are effective to treat Plaintiffs conditions, the Court is unable to determine 4 | Plaintiff's likelihood of irreparable harm in the absence of immediate, injunctive relief. 5 | 1. CONCLUSION 6 The Court DIRECTS the Clerk of Court to randomly assign a district judge to this action. 7 For the foregoing reasons, it is hereby RECOMMENDED that the Court DENY 8 | Plaintiff's motion for a TRO and preliminary injunction. (Doc. 3.) 9 These Findings and Recommendations will be submitted to the United States District 10 || Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen 11 | (4) days after being served with these Findings and Recommendations, a party may file written 12 | objections with the Court. The document should be titled, “Objections to Magistrate Judge’s 13 | Findings and Recommendations.” The parties are advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 15 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 | IT IS □□ ORDERED. 'T | Dated: _ August 2, 2023 | Wr bo 18 UNITED STATES MAGISTRATE JUDGE