United States District Court, D. Montana, Helena Division
MICHAEL A. MARTINDALE, Plaintiff,
PAUL REES, M.D., Defendant.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON UNITED STATES MAGISTRATE JUDGE
Michael Martindale, a state prisoner proceeding without
counsel, filed a Complaint alleging Defendant Paul Rees, M.D.
denied him adequate medical care in violation of the Eighth
Amendment (Doc. 2) and a Motion for Temporary Restraining
Order and Preliminary Injunction (Docs. 2-3 - 2-5). Dr. Rees
has now filed an Answer (Doc. 11) and a response to the
Motion for Temporary Restraining Order and Preliminary
Injunction (Doc. 11). The motion for temporary restraining
order should be denied.
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 24 (2008) (citations
omitted). It serves not as a preliminary adjudication on the
merits, but as a tool to preserve the status quo and prevent
irreparable loss of rights before judgment. Textile
Unlimited, Inc. v. A.. BMH & Co., Inc., 240
F.3d 781, 786 (9th Cir. 2001). In reviewing a motion for
preliminary injunction, “courts must balance the
competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested
relief.” Winter, 555 U.S. at 24 (citations and
internal quotation marks omitted). “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.” Winter,
555 U.S. at 20 (citations omitted).
does not expressly prohibit use of a “sliding scale
approach to preliminary injunctions” whereby “the
elements of the preliminary injunction test are balanced, so
that a stronger showing of one element may offset a weaker
showing of another.” Alliance/or the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The
Ninth Circuit recognizes one such “approach under which
a preliminary injunction could issue where the likelihood of
success is such that serious questions going to the merits
were raised and the balance of hardships tips sharply in
plaintiff's favor.” Id. (citations and
internal quotation marks omitted).
preliminary injunction “should not be granted unless
the movant, by a clear showing, carries the
burden of persuasion.” Lopez v. Brewer, 680
F.3d 1068, 1072 (9th Cir. 2012) (citations omitted, emphasis
in original). A request for a mandatory injunction seeking
relief well beyond the status quo is disfavored and shall not
be granted unless the facts and law clearly favor the moving
party. Stanley v. Univ. of S. Cal., 13 F.3d 1313,
1319-20 (9th Cir. 1994).
order to prove a § 1983 claim for violation of the
Eighth Amendment based on inadequate medical care, a
plaintiff must show “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious
medical needs.” Estelle v. Gamble, 429 U.S.
97, 106 (1976). Thus, in order to prevail, Mr. Martindale
must show both that his medical needs were objectively
serious, and that Defendants possessed a sufficiently
culpable state of mind. Wilson v. Seiter, 501 U.S.
294, 299 (1991); McKinney v. Anderson, 959 F.2d 853,
854 (9th Cir. 1992) (on remand). The requisite state of mind
for a medical claim is “deliberate indifference.”
Hudson v. McMillian, 503 U.S. 1, 5 (1992).
serious medical need exists if the failure to treat a
prisoner's condition could result in further significant
injury or the unnecessary and wanton infliction of pain.
Indications that a prisoner has a serious need for medical
treatment are the following: the existence of an injury that
a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical
condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial
pain. Wood v. Housewright, 900 F.2d 1332, 133741
(9th Cir. 1990) (citing cases); Hunt v. Dental
Dept., 865 F.2d 198, 200-01 (9th Cir. 1989);
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992), overruled on other grounds, WMX Technologies v.
Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). The
Court will presume for purposes of this Order that Mr.
Martindale has serious medical care needs.
Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme
Court established a very demanding standard for
“deliberate indifference.” Negligence is
insufficient. Farmer, 511 U.S. at 835. Deliberate
indifference is established only where the defendant
subjectively “knows of and disregards an excessive risk
to inmate health and safety.” Toguchi v.
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal
citation omitted). Deliberate indifference can be established
“by showing (a) a purposeful act or failure to respond
to a prisoner's pain or possible medical need and (b)
harm caused by the indifference.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal
physician need not fail to treat an inmate altogether in
order to violate that inmate's Eighth Amendment rights.
Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th
Cir. 1989). A failure to competently treat a serious medical
condition, even if some treatment is prescribed, may
constitute deliberate indifference in a particular case.
Martindale alleges he suffers from neuropathy, extensive
nerve damage, and lower back pain and Dr. Rees discontinued
his effective pain medications for these conditions. He
contends Dr. Rees ignored the medical orders of Dr. Whitney
to stop prescribing anti-inflammatories to avoid liver and
kidney damage. He alleges he was diagnosed with pneumonia in
July 2017 and it was discovered that his diaphragm is stuck
in the open position. He contends that because Dr. Rees will
not prescribe effective pain medication, it is impossible for
him to go outside during the coldest months of the year and
as a result he has to go without eating. He also alleges that
infirmary staff fails to conduct weekly blood pressure checks
and forget to send blood tests to the lab. (Doc. 2-2.)
response, Dr. Rees filed an affidavit setting forth his
treatment plan for Mr. Martindale. Dr. Rees explained that
Mr. Martindale has been followed, seen and treated in a
clinical setting for thyroid cancer (in remission),
musculoskeletal problems, acid reflux, HIV infection,
hypertension and hypotension, investigation of possible heart
and kidney disease, and diaphragmatic paralysis in connection
with a chronically elevated left hemidiaphragm. (Rees
Affidavit, Doc. 9-1 at ¶6.) Dr. Rees testified that he
and other MSP infirmary staff have addressed Mr.
Martindale's related complaints of back pain, pain in his
neck and throat area, chest pain, elbow pain, discomfort from
acid reflux, discomfort from swallowing, and discomfort from
an insect bite, along with discomfort from his neuropathy,
including extensive evaluation and provision of medications.
addition to the anti-inflammatory medications Mr. Martindale
admits he is provided (ibuprofen, acetaminophen, and
naproxen), Mr. Martindale has also received steroidal
anti-inflammatories both orally and by injection, muscle
relaxing medications, and he is prescribed medication for
nerve discomfort in the form of Cymbalta. (Id. at
¶16.) Mr. Martindale's complaints of pain have also
been evaluated by the MSP Pain Management Committee to
determine a global, multi-modal approach to managing his
complaints of chronic pain. (Id. at ¶18.)
Rees has also arranged for several specialists to be involved
with Mr. Martindale's care and evaluation of his
complaints of discomfort and pain, and Dr. Rees testified
that recommendations from these specialists have been
followed. He explained that Mr. Martindale's thyroid
cancer has been successfully treated and Mr. Martindale
remains under the care of an endocrinologist, Dr. McKenna.
(Id. at ¶7.)
Rees also referred Mr. Martindale to an ear, nose and throat
specialist, Dr. Haller, for further evaluation of his
complaints of discomfort with respect to his throat.
(Id. at ¶8.) With respect to the chest
discomfort or pain expressed by Mr. Martindale, he has been
referred to two cardiologists, Drs. Goulah of Anaconda and
Waldo of Missoula. (Id. ...