United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge
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
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. 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).
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.
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).
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.
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.)
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.)
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.
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 ...