KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff consented to proceed before the undersigned for all purposes.
On March 15, 2017, plaintiff's complaint was screened, plaintiff was directed to provide documents for service of process on Dr. Saltanian, and the Supervising Deputy Attorney General was directed to respond to plaintiff's motion for preliminary injunctive relief. On March 28, 2017, plaintiff filed an amended complaint. On April 3, 2017, the Supervising Deputy Attorney General filed a response. On April 28, 2017, plaintiff filed a motion for appointment of counsel. The court addresses each filing below.
Plaintiff's Amended Complaint
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief.
Plaintiff's amended complaint is not complete in itself. Rather, plaintiff refers the reader to plaintiff's "statement of facts in affidavit, declaration with preliminary injunction and T.R.O." (ECF No. 10 at 3.) The court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement is because, as a general rule, an amended complaint supersedes the original complaint.
Moreover, as discussed below, plaintiff's original complaint, as well as his amended complaint, make clear on the face of the pleadings that plaintiff did not exhaust his administrative remedies prior to filing the instant action. (ECF Nos. 1 at 5, 7; 10 at 3.)
Legal Standard re Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory.
Compliance with the exhaustion requirement is mandatory for any type of relief sought.
As noted above, the PLRA requires proper exhaustion of administrative remedies.
Non-exhaustion under § 1997e(a) is an affirmative defense.
The face of plaintiff's amended complaint makes clear that plaintiff is in the process of exhausting his administrative remedies as to his claims against Dr. Saltanian. In his amended complaint, plaintiff conceded that there are administrative remedies available at his institution, but in response to the question "Did you appeal your request for relief on Claim 1," plaintiff answered No. (ECF No. 10 at 3.) Plaintiff did not state he had filed a request for relief to the highest level, but responded to the statement, "If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not," plaintiff wrote: "I've filed (2) administrative grievances. Also see brief," apparently referring to his original pleading. (ECF No. 10 at 3.)
In his original complaint, signed March 9, 2017, plaintiff noted that Dr. Saltanian stopped plaintiff's prescription for Gabapentin on February 1, 2017, and plaintiff filed a grievance concerning the deprivation on February 1, 2017. (ECF No. 1 at 4-5.) Under the heading, "Exhaustion of Administrative Remedies," plaintiff wrote: "Plaintiff[`s] claims [have] been exhausted at the highest level? Yes or No" and plaintiff circled No. (ECF No. 1 at 5.) Plaintiff stated he "is making efforts to exhaust in good faith, "but because he faces serious injury, he requested injunctive relief "while the court waits for them to exhaust grievance procedures." (ECF No. 1 at 6.) In his declaration, plaintiff states he filed two different grievances, but faces a "lengthy waiting process" in the administrative appeal process. (ECF No. 1 at 7.)
Plaintiff's statements, taken together, make clear that plaintiff did not exhaust his administrative remedies prior to filing the instant action. An action must be dismissed unless the prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner fully exhausts while the suit is pending.
Motion for Preliminary Injunctive Relief
Plaintiff seeks an order requiring Dr. Saltanian to renew plaintiff's prescription for Gabapentin, 1200 mg three times a day, for plaintiff's seizure disorder. Plaintiff avers he has been successfully prescribed Gabapentin for the seizure disorder for the last 13 years.
Legal Standards: Injunctive Relief
Preliminary injunctive relief pursuant to Federal Rule of Civil Procedure 65 is appropriate when the movant demonstrates that "he is likely to succeed on the merits [of the underlying action], 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."
The propriety of a request for injunctive relief hinges on a significant threat of irreparable injury that must be imminent in nature.
In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).
Legal Standards: Inadequate Medical Care Claim
The government has an "obligation to provide medical care to those whom it is punishing by incarceration."
To act with deliberate indifference, a prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
It is important to differentiate common law negligence claims of malpractice from claims predicated on violations of the Eighth Amendment's prohibition of cruel and unusual punishment. In asserting the latter, "[m]ere `indifference,' `negligence,' or `medical malpractice' will not support this cause of action."
In response to the court's order, the Supervising Deputy Attorney General provided the declaration of Dr. B. Feinberg, a physician and surgeon employed as Chief Medical Consultant by the California Correctional Health Care Services ("CCHCS"). (ECF No. 11-1.) Dr. Feinberg declares that plaintiff has been and is currently prescribed Dilantin (Phenytoin), a common medication used to treat generalized seizure disorders, and that his dose of Dilantin was recently increased. (ECF No. 11-1 at 2.) Dr. Feinberg declares that Gabapentin is not appropriate for plaintiff, and that Dilantin is appropriately prescribed. Dr. Feinberg explains that Gabapentin is FDA approved for the treatment of partial seizures and postherpetic neuralgia, and that there is insufficient evidence to support its use for generalized tonic clonic seizures, the diagnosis plaintiff has received. (ECF No. 11-1 at 2.) Moreover, Dr. Feinberg declares that "there has been a growing body of evidence that gabapentinoids carry an increasingly recognized risk of dependence, abuse and misuse. (
In addition, Dr. Feinberg declares that plaintiff is regularly seen by his doctor and is actively monitored by the medical team, including on January 31, 2017, February 1, 2017, February 2, 2017, and February 6, 2017. (ECF No. 11-1 at 3.) Doctor's notes reflect plaintiff's "observable signs and symptoms were not consistent with seizures, and alternative diagnoses are being considered." (
Here, in light of Dr. Feinberg's declaration, plaintiff fails to demonstrate that he is likely to suffer irreparable harm in the absence of preliminary injunctive relief. Indeed, plaintiff's prescription for Dilantin has been increased, alternative diagnoses are being considered, and an assessment by a neurologist has been ordered (ECF No. 12 at 2).
Moreover, plaintiff has not demonstrated a likelihood of success on the merits of his claim. Plaintiff must show that the challenged course of treatment was medically unacceptable under the circumstances and chosen in conscious disregard of an excessive risk to plaintiff's health.
Finally, because this action must be dismissed based on plaintiff's failure to first exhaust his administrative remedies, plaintiff cannot succeed on the merits of his claims in this action.
For all of these reasons, plaintiff's motion for injunctive relief is denied.
Request for Appointment of Counsel
In light of the dismissal of this action, appointment of counsel at this juncture is not appropriate.
In accordance with the above, IT IS HEREBY ORDERED that: