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Brown v. Rees

United States District Court, D. Montana, Helena Division

May 6, 2019

ANTHEL LAVAN BROWN, Plaintiff,
v.
PAUL REES, M.D., Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         Plaintiff Anthel Brown, 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. 1), a Motion for Temporary Restraining Order and Preliminary Injunction (Docs. 1-1 - 1-6), a Motion to Appoint Counsel (Doc. 14), and a Motion for Summary Judgment on the Motion for TRO (Doc. 16). Dr. Rees has now filed an Answer (Doc. 12) and a response to the Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 13). The motion for temporary restraining order and motion for summary judgment on the motion for temporary restraining order should be denied. The motion for appointment of counsel will also be denied.

         I. INJUNCTIVE RELIEF

         “A 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).

         Winter 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).

         A 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).

         In 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. Brown must show both that his medical needs were objectively serious, and that Defendant 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).

         A 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. Brown has serious medical care needs.

         In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court established a 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 citations omitted).

         A 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. Id.

         Mr. Brown seeks an order requiring Defendant Rees to cease denying Mr. Brown “effective medications” for the treatment of severe, chronic pain and to provide “effective medications.” (Notice of Application for TRO, Doc. 1-2 at 1.) Mr. Brown claims his chronic pain is the direct result of bad knees which have been replaced through surgery and other complications with his back. (Complaint, Doc. 1 at 4, ¶ 18.) According to a January 13, 2017 MRI, Mr. Brown has a “complex disc herniation L3 to 4 with extrusion and severe spinal stenosis/right lateral recess foraminal impingement. Broad-based central, left paracentral, lateral and far lateral disc herniation L5-S1 with left nerve root entry zone and foraminal impingement.” (MRI report, Doc. 1-6 at 23.) He alleges Dr. Rees refuses to issue the prescription he was told to take for these injuries. Mr. Brown claims he was prescribed effective pain medication for his pain by Drs. Kohut and Perenian at Montana State Prison (MSP) until Dr. Rees assumed control over Mr. Brown's medical treatment. (Complaint, Doc. 1 at 2, ¶ 6.) He contends only a limited type of prescription non-opiod drugs have proven to be effective in treating his chronic, severe pain. He states that as a result of being denied effective medications he is unable to exercise and remain active, his weight is more than 20 pounds over normal, his blood pressure is dangerously high, and he is stressed and depressed. (Brown Affidavit, Doc. 1-5 at 1.)

         In response, Dr. Rees filed an affidavit setting forth his treatment plan for Mr. Brown. Dr. Rees explained that Mr. Brown is a male inmate in his sixties who Dr. Rees has treated since early 2017 for his health care problems, including diabetes, chronic non-malignant musculoskeletal pain, hypertension, hyperlipidemia, and pulmonary issues including asthma. Mr. Brown has also been seen by Dr. Larry Stayner, M.D., for orthopedic issues with his knees, and Shane Spears for physical therapy regarding bilateral plantar fasciitis. (Rees Affidavit, Doc. 13-1 at ¶ 8.)

         Mr. Brown complained of pain from his back, general arthritis DJD, and diabetic neuropathy. In January 2017, Dr. Rees referred Mr. Brown for an MRI of his lumbar spine due to complaints of pain radiating down his right leg to his foot. Based on the results of that evaluation, Dr. Rees referred Mr. Brown to Dr. Steve Martini for an epidural steroid injection. Although Dr. Rees states that Mr. Brown reported the injections were helpful (Affidavit, Doc. 13-1 at ¶ 9), Mr. Brown contends the injections caused him extreme pain which affected his ability to walk. (Notice, Doc. 15 at 1.) In August 2017, Mr. Brown received another lumbar epidural steroid injection from Dr. Martini. Dr. Martini's report of that visit also recommended an increase in Mr. Brown's opioid medication tramadol.

         Dr. Martini's recommendation was contrary to the Pain Management Committee's plan to taper Mr. Brown's use of the drug, so Dr. Rees contacted Dr. Martini by phone. Dr. Rees testified that Dr. Martini told him that Mr. Brown asked him to recommend increasing his pain medication and he complied with Mr. Brown's wishes. Dr. Rees acknowledged Dr. Martini's recommendations but explained that given Mr. Brown's long-term consistent use of opioids he did not agree with increasing Mr. Brown's medication citing the likelihood of decreased effectiveness as a result of tolerance and resultant amplification of the pain. Dr. Rees further explained that he utilized regular drug holidays with inmates at MSP to attempt to minimize tolerance and opioid receptor down regulation with hopes of achieving satisfactory pain management with multi-modal non-narcotic therapy in accordance with the 2016 CDC ...


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