Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General SUSANNA C. PINEDA Assistant Attorney General State Bar No. 011293 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ALBERT DELEON, Plaintiff, v. DORA SCHRIRO, et al., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S EMERGENCY MOTION FOR INJUNCTIVE RELIEF AND EMERGENCY ISSUANCE OF TRO'S PURSUANT TO RULE 65 FED. RULE CIV. P. No. CV 04-446-PHX-PGR (MS)

Defendants1 hereby respond to Plaintiff's "Emergency Motion for Injunctive Relief and Emergency Issuance of TRO's pursuant to Rule 65 Fed. Rule Civ. P." and respectfully request this Court deny Plaintiff's Motion for the reasons stated in the following Memorandum of Points and Authorities.

1

Dora Schriro, Ronolfo Macabuhay, Ruben Montano, Donald Sloan, Sgt. Avalos, Fredrick Ramon, Adrian Parades, Michael Reyna and Dr. Vinluan. Defendant Jones has apparently not been served in this matter.
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. Plaintiff, Albert DeLeon, having been convicted and sentenced, is an inmate currently incarcerated with the Arizona Department of Corrections ("ADC") at the Arizona State Prison Complex ("ASPC")-Lewis-Morey-Red. Daniel Edwards ["Declaration"] at ¶ 10.) On March 3, 2004, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983. The counts that remain in his complaint allege that Defendants retaliated against him by denying him access to his orthopedic shoes and cane, as well as denying him other rehabilitative measures. In it he also contends that he was abused, assaulted, and denied necessary medical care. He further alleged that Defendants were deliberately indifferent to his medical needs when they failed to provide "rehabilitation following his heart attack and that Defendants have submitted him to cruel and unusual punishment by denying him medical care." This matter had been stayed by this Court pending the service of remaining punative Defendants. Following service of those defendants, the parties have been granted an enlargement of time in which to file their dispositive motions. On June 15, 2005, Plaintiff filed a motion for TRO regarding his housing assignment. Defendants responded. That matter is currently pending. Plaintiff now files a new "emergency" motion, this time alleging that Dr. Lockhart, a non-defendant physician who is currently treating his medical issues, has threatened to take his wheel chair so that he will be required to ambulate by cane alone. He asks this Court to prevent the doctor (Declaration of Deputy Warden

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from doing so. Plaintiff claim misstates the facts regarding his discussions with Dr. Lockhart. II. Facts. Plaintiff is tentatively scheduled to leave ADOC during the summer of 2006. (Attachment-Affidavit of Dr. Lockhart at ¶ 4.) Upon his release from prison, Plaintiff will be required to care for himself. At the request of the facility health administrator, Dr. Lockhart met with Plaintiff to develop a rehabilitation plan that would serve Plaintiff's best interest upon release. (Id.) Prior to doing so, Dr. Lockhart reviewed Plaintiff's medical file and determined that Plaintiff had no medical reason that would prohibit him from walking, he has only experienced mild muscle atrophy resulting from Plaintiff's reliance on a wheelchair. (Id.) In order for Plaintiff to prepare for the rigors associated with being on his own it is imperative that Plaintiff regain the strength in his lower extremities. (Id. at ¶¶ 5-7.) In order to do so, Plaintiff must exercise his lower extremities, i.e., his legs. (Id. at ¶ 5.) Plaintiff's continued reliance on a wheelchair, however, counteracts the goal to strengthen his legs and is detrimental to Plaintiff's health. (Id. at ¶¶ 5-7.) By relying on a wheelchair for movement, Plaintiff's muscles will continue to atrophy and will, in all likelihood, cause him to become dependent on a wheelchair. Historically, individuals who are wheelchair bound develop additional health issues. (Id. at ¶ 7.) For the sake of Plaintiff's health, Dr. Lockhart has ordered Plaintiff to engage in an exercise program whereby he is to utilize a cane for movement and to assist him in performing daily exercises to strengthen his lower extremities. (Id. at ¶ 5.) After 30 days, Dr. Lockhart will review his progress and determine his needs. (Id.) Plaintiff's motion is

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nothing more than a request that this Court substitute its opinion for that of his treating physician. III. Argument. A. Standard of Review. The granting or denial of a preliminary injunction is committed to the sound discretion of the trial court. USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir.1982). Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the plaintiff; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that plaintiff will succeed on the merits; and (4) the public interest. Randall v. Wyrick, 642 F.2d 304, 307-09 (8th Cir. 1981). The purpose of a preliminary injunction is to preserve the status quo among the parties pending the outcome of the action. Regents of Univ. of Cal. V. American

Broadcasting Companies, Inc., 747 F.2d 511, 514 (9th Cir. 1984). It is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). B. Plaintiff is not Entitled to Injunctive Relief. First, it appears from Plaintiff's motion that he seeks relief against Dr. Lockhart who is not a party to this action. Plaintiff also fails to show that Dr. Lockhart is acting at the behest of the Defendants or in concert with them. See Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9 (1945). Instead, the evidence provided shows that Dr. Lockhart has prescribed an exercise program to make Plaintiff stronger and less reliant of

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the wheelchair with the intent of improving his ability to survive in society once he is released from ADC custody. Second, this Court does not have jurisdiction over Plaintiff's motion because it relates to matters not alleged in the complaint. "Only after an action has been commenced can preliminary injunctive relief be obtained." Stewart v. United States I.N.S., 762 F.2d 193 (2nd Cir. 1985) (citing F. Rule Civ. P 65(a)(2)). Plaintiff's current motion seeks injunctive relief that would prevent Doctor Lockhart from treating Plaintiff by prescribing on a particular exercise regimen that would assist in his rehabilitation. Plaintiff's

complaint raises no such issue. In fact, his complaint alleges that Defendants failed to treat or rehabilitate him. Thus, no action has been commenced that would allow this Court to enter injunctive relief. Third, Plaintiff has failed to establish that he is entitled to the relief requested. Finally, it is ironic that Plaintiff's Complaint alleges that Defendants were acting in order to injure his health, and he now complains when a non-defendant acts for the betterment of his health and in order to prepare him for life within society. Public interest requires that persons released from custody be in the best position to care for themselves and it weighs against granting Plaintiff his requests for injunctive relief. Balancing these four factors, Plaintiff's requested preliminary injunction must be denied. Plaintiff is asking that this Court substitute its judgment for that of a medical doctor. Although he alleges that Dr. Lockhart's prescribed treatment constitutes cruel and unusual punishment, Dr. Lockhart's intent is not to punish Plaintiff, but to benefit Plaintiff

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by improving his health prior to his release from custody. This intent balances in favor of denial of Plaintiff's Motion. Plaintiff's probability of success on the merits is also zero. In his complaint, Plaintiff alleges that ADC staff and medical personnel have deprived him of his cane and orthopedic shoes requiring that he be wheelchair bound. He now complains that any effort to eliminate his dependency on that wheelchair should be prohibited. Plaintiff appears to speak in circles. Plaintiff cannot show deliberate indifference on the part of Defendants or, as shown here, on the part of a non-defendant ADC medical doctor. This Court should decline Plaintiff's requests that it interfere with Dr. Lockhart's ability to treat Plaintiff and prepare him physically for the rigors of life out of custody. Because Plaintiff cannot show that Dr. Lockhart has been deliberately indifferent to his medical needs, this Court should not interfere with the current course of treatment. The courts are "ill equipped" to deal with problems of prison administration. Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807 (1974). Consequently, courts must give great deference to the actions of prison officials in administering prisons. Block v.

Rutherford, 468 U.S. 576, 585, 104 S.Ct. 3227, 3232 (1984); Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878 (1979); see also Lewis v. Casey, 518 U.S. 343, 361-62, 116 S.Ct. 2174, 2185 (1996) (chastising the court for becoming involved in the management of Arizona prisons and referring to the district court's action as "inordinately--indeed, wildly-intrusive").

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III. Conclusion. Because the balancing of these factors does not support the granting of a preliminary injunction, Defendant respectfully requests that this Court deny Plaintiff's Motion. RESPECTFULLY SUBMITTED this 17th day of November, 2005.

TERRY GODDARD Attorney General

s/ Susanna C. Pineda SUSANNA C. PINEDA Assistant Attorney General Attorneys for Defendants

ORIGINAL and one copy of the foregoing filed this 17th day of November, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 COPY mailed the same date to: Albert DeLeon #32814 P.O. Box 3300 Lewis-Morey-Red Buckeye, Arizona 85326 Plaintiff Pro Se

s/ Colleen Jordan Legal Secretary to Susanna C. Pineda
IDS04-0271/RMG03-03830

934012.

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