United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE CHIEF U.S DISTRICT JUDGE.
the Court is Plaintiff Joshua McGiboney's Motion for a
Temporary Restraining Order and Preliminary Injunction (Dkt.
10); Motion to Exceed Page Limits (Dkt. 34); and Motion to
Appoint Counsel (Dkt. 38). Having reviewed the record and
briefs, the Court finds that the facts and legal arguments
are adequately presented. Accordingly, in the interest of
avoiding further delay, and because the Court finds that the
decisional process would not be significantly aided by oral
argument, the Court will decide the Motions without oral
argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For the
reasons stated below, the Court will GRANT in PART and DENY
in PART Plaintiff's request for injunctive relief, GRANT
Plaintiff's request to exceed page limits, and DENY
Plaintiff's motion for appointment of counsel.
Joshua McGiboney (hereinafter “McGiboney”) is an
inmate incarcerated by the Idaho Department of Correction
(“IDOC”) at the Idaho State Correctional
Institution (“ISCI”). McGiboney has a serious
medical condition called arteriovenous malformation
(“AVM”). Dkt. 31-3, at 2. In general, AVM is an
“abnormal tangle of blood vessels connecting arteries
and veins, which disrupts normal blood flow and oxygen
circulation.” Dkt. 31-2, at ¶ 6. McGiboney suffers
from severe pain, loss of strength and mobility, loss of
bowel and bladder functions, paralysis that generally
confines him to a wheelchair, and other symptoms as a result
of his AVM.
2011, while incarcerated, McGiboney experienced a sudden
onset of midthoracic back pain. Plaintiff was treated at St.
Luke's Boise Medical Center and was later diagnosed with
a hemorrhage in his spinal cord as a result of his AVM. The
neurosurgeon who treated Plaintiff, Dr. Ronald Jutzy, noted
surgery was not an option due to risk of permanent stroke to
Plaintiff's spinal cord. Dr. Jutzy later reiterated that
there was no local surgical option, and that Plaintiff was at
a very high risk for paraplegia if he should proceed with
elective surgery. Dr. Jutzy also stated his only
recommendation “would be to have McGiboney's case
reviewed by Dr. Robert Spetzler at Barrow's Neurological
Institute in Phoenix, Arizona.” Id. at ¶
the 2011 event, McGiboney filed his first Eighth Amendment
claim for deliberate indifference under 42 U.S.C. § 1983
against his treating physician at the time, Dr. David Agler,
and Corrections Corporation of America
(“CCA”). McGiboney v. Agler,
1:13-cv-00214-REB. McGiboney's first suit involved his
treatment between May 12, 2011, and May 23, 2011, which was
when Dr. Agler first understood that McGiboney had been
previously diagnosed with AVM, and the period running from
approximately April through October of 2012, when
McGiboney's condition began to worsen after initial
improvement. Id., Dkt. 59, at 2. Following a trial
held on November 7 through November 10, 2016, the jury found
Dr. Agler was deliberately indifferent to McGiboney during
the time period between May 12, 2011, through May 23, 2011,
that McGiboney was harmed as a result, and awarded McGiboney
$11, 000.00 in compensatory damages. Id., Dkt.
The jury also awarded McGiboney $25, 000.00 in punitive
damages. Id. McGiboney, proceeding pro se
and in forma pauperis, filed the instant action, his
second suit asserting claims based on 42 U.S.C. § 1983,
on November 20, 2018. McGiboney's complaint was screened
pursuant to 28 U.S.C. 1915 and 1915A, and he was allowed to
proceed on his Eighth Amendment and related state law claims
against Defendants Corizon and Dr. Rebekah Haggard (for all
types of requested relief), Defendant Warden Alberto
Ramirez for injunctive relief only, and on his
retaliation claim against Defendant Jared
Povar. Dkt. 7, at 31-32. All other claims against
all other Defendants were dismissed. McGiboney filed a Motion
for Temporary Restraining Order and Preliminary Injunction on
March 22, 2019. Dkt. 10.
Eighth Amendment claims involve the medical care, or lack
thereof, McGiboney has received for his AVM since January 7,
2016. Dkt. 2, at ¶ 23. Due to
McGiboney's worsening symptoms, a nondefendant medical
provider working for Corizon- the private entity currently
providing medical care to Idaho inmates under contract with
the IDOC-told McGiboney on January 7, 2016, that he would
discuss the possibility of an MRI with then-Regional Medical
Director Dr. Murray Young. Id.
March 2, 2016, McGiboney was transferred from the Idaho State
Correctional Center to the ISCI. McGiboney immediately
submitted a health service request for the MRI and a visit
with Dr. Young to discuss additional treatment options.
Another provider also requested an MRI for McGiboney on April
25, 2016. Four days later, McGiboney received notice that Dr.
Young had denied the request. The next time McGiboney
attempted to contact Dr. Young, in July of 2016, McGiboney
was told Dr. Young was no longer Corizon's Regional
Medical Director. Defendant Dr. Haggard replaced Dr. Young as
the Corizon Regional Medical Director for IDOC in the summer
of 2016. Dkt. 31-2, at ¶ 2.
September 2016-nine months after the initial recommendation
for an MRI- Dr. Matthew Sweetzer examined McGiboney and
determined he needed “imaging to see [the] extent of
[his] condition & [a] neuro consult[.]” Dkt. 2, at
¶ 33. A nondefendant nurse then pulled McGiboney's
wheelchair out of Dr. Sweetzer's office, stating that
McGiboney's time was up. Id. Three weeks later,
McGiboney was informed that Dr. Sweetzer no longer worked at
the prison and that McGiboney must start over and re-submit
health service requests.
eventually received an ultrasound on his left leg on October
24, 2016, at St. Luke's hospital. The St. Luke's
doctor, Dr. Reada, determined that additional imaging was
needed. Id. at 6. At McGiboney's next
appointment, with Defendant Povar in December 2016, Defendant
Povar told McGiboney that an MRI had been ordered and that
McGiboney would be prescribed medication. Over three months
later, McGiboney had still not had the MRI or been prescribed
medication. At that point, another provider confirmed that
McGiboney would be given an MRI and a follow-up with Dr.
Ronald Sutherlin. Id. McGiboney was not given the
MRI, nor was he evaluated by Dr. Sutherlin.
April 13, 2017, Defendant Povar informed McGiboney that
Defendant Haggard had once again denied Povar's request
for an MRI, despite Dr. Reada's October 2016
recommendation for additional imaging. Defendant Haggard
contends the MRI request was initially denied because
McGiboney “had reported neuro function which is not
consistent with AVM progression.” Dkt. 31-2, at ¶
10. However, Defendant Haggard agreed an MRI was necessary by
October 2017, when McGiboney experienced worsening symptoms.
finally received an MRI in November, 2017, which
“revealed progression of distal spinal cord syrinx
below T7-T11 and L3-4 advanced degenerative disc disease with
severe right foraminal stenosis.” Id. at
¶ 11. Based on the new MRI findings, Neurosurgeon Dr.
Paul Montalbano recommended evaluation by a vascular
neurosurgeon specialist, Dr. Ondrej Choutka. Id.
While waiting for his appointment with Dr. Choutka, McGiboney
sustained bleeding pressure sores because the seat of his
wheelchair was “sagging down onto metal bars” and
“busting [his] skin open.” Dkt. 2, at ¶ 52.
McGiboney claims that “IDOC's restricted policies
forced him to sit in blood & urine with open wounds &
refus[ed] him access to showers all night & no laundry
all week.” Id. McGiboney requested a new
wheelchair. Although the request was initially denied,
McGiboney received a new wheelchair on March 27, 2018.
McGiboney contends that his new chair is too big, and that he
is “unable to effectively propel” himself with
it. Id. at ¶ 69. Defendants do not respond to
McGiboney's claims regarding the injuries his first
wheelchair caused or his need for a new wheelchair, nor his
claims that he was denied access to showers and laundry after
his pressure sores ruptured.
months after Dr. Montalbano recommended McGiboney evaluation
by a vascular neurosurgeon, McGiboney was seen by Dr. Choutka
on February 1, 2018. Dr. Choutka noted baseline weakness in
McGiboney's left leg but worsening symptoms in his right
leg. Dkt. 31-2, at ¶ 12. Dr. Choutka recommended a
spinal angiogram, which was performed. Id. On
February 27, 2018, McGiboney returned to Dr. Choutka for a
follow-up visit. Id. The two discussed various
treatment options, and ultimately decided to proceed with
endovascular treatment of McGiboney's AVM,
“followed by posterior thoracic hemilaminectomy and
placement of syringo-subarchnoid shunt, combined with
foraminotomy if significant L3 nerve root compression
had the aforementioned surgeries in March, 2018, during which
Dr. Dallas Peck embolized two aneurysms and Dr. Choutka
performed a foraminotomy for nerve root decompression and
inserted a shunt without complication. Id. at ¶
13. Because McGiboney was unable to urinate following his
surgeries, he was prescribed Urecholine; however, Corizon
failed to provide McGiboney with this medication for two
months. Dkt. 2, at ¶¶ 65, 68, 73. By the time
McGiboney finally received Urecholine on May 19, 2018,
“it was too late to stimulate [his] bladder to normal
function, ” and McGiboney must now “use catheters
for the rest of [his] life” in order to urinate.
Id.; see also Dkt. 36- 4, at 15, ¶ 13.
Defendants do not respond to McGiboney's allegations
regarding their failure to provide him with Urecholine
following his surgeries.
days after his March surgeries, Defendant Haggard told
McGiboney that Corizon had denied him a medical mattress
“despite [McGiboney's] bruised, atrophied leg &
open pressure sores.” Dkt. 2, at ¶ 71. McGiboney
was also told Corizon was “out of catheters” and
that he would have to rinse off his used catheters and
re-insert them, exposing himself to a risk of “painful
& dangerous kidney infections.” Id. at 11.
Corizon also had problems keeping bathing cloths in
stock-cloths that McGiboney needed daily. When Corizon was
out of such cloths, McGiboney “had to sit in human
waste until they got some.” Id. at ¶ 56.
Defendants do not respond to McGiboney's allegations
regarding being denied a medical mattress, or access to new
catheters and bathing cloths. However, Defendants note
McGiboney had a follow-up visit with Dr. Choutka after his
surgeries, at which time it was noted McGiboney was
“doing wonderful” and was “happy with his
progress.” Dkt. 31-2, at ¶ 13.
follow-up visit, Dr. Choutka ordered that McGiboney be
provided with aggressive physical therapy. Dkt. 31-3, at 30.
Defendant Haggard referred McGiboney to St. Alphonsus
Rehabilitation Services (“STARS”) to undergo
rehabilitation. Dkt. 31-2, at ¶ 14. McGiboney underwent
physical therapy from April 6, 2018, until he was discharged
on November 21, 2018, when his progress
plateaued. Dkt. 31-2, at ¶ 14.
being discharged from therapy at STARS on November 21, 2018,
McGiboney continued physical therapy at the prison. On
December 26, 2018, he had a spinal MRI, and on March 22,
2019, a CT angiogram. Id. at ¶ 16.
McGiboney's March 22, 2019, CT angiogram with Dr. Mathew
Pond identified a recurrence of “the known spinal
arteriovenous malformation along the inferior aspect of the
previously embolized AVM nidus with the arterial feeder
arising from the right T9 segmental artery.” Dkt. 31-3,
at 42. McGiboney's recurring malformation measured
approximately two centimeters in size, with early drainage
visible, requiring embolization. Id. at 41-42.
McGiboney contends that at two centimeters, his new
malformation is twice the size of any previous malformations
which have caused him to hemorrhage and suffer partial
paralysis. Dkt. 35, at 6.
Defendants represent that a “new consultation request
for neurosurgery and interventional radiology
follow-up” was placed as a result of Dr. Pond's
report, and “is in the process of being scheduled,
” the follow-up had not been scheduled as of May 23,
2019, two months after Dr. Pond issued his report. Dkt. 31-2,
at ¶ 16; Dkt. 31-3, at 45. It appears the neurosurgery
and interventional radiology follow-up still have not been
scheduled as of the date of this decision, more than a month
later. McGiboney is in imminent danger of
hemorrhaging as a result of his spinal arteriovenous
malformation, which could cause stoke, additional paralysis,
coma or death, and requires embolization. Dkt. 36-2, at
¶ 7; Dkt. 31-3, at 42.
filed his Motion for a Temporary Restraining Order and
Preliminary Injunction on March 18, 2019. In his
motion, McGiboney seeks an injunction against Defendants to
ensure he “receives adequate and meaningful medical
care and treatment to sustain his life.” Dkt. 10-1, at
1. Defendants oppose the motion on a number of grounds
primary purpose of a preliminary injunction is to prevent
irreparable harm which may occur before a decision on the
merits can be rendered by the trial court. A preliminary
injunction “is an extraordinary remedy never awarded as
a matter of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). A preliminary
injunction may take two forms. “A prohibitory
injunction prohibits a party from taking action and preserves
the status quo pending a determination of the action on the
merits.” Marlyn Nutraceuticals, Inc. v. Mucos
Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009)
(internal alterations and quotation marks omitted). A
mandatory injunction orders a party to take action.
Id. at 879. Because a mandatory injunction
“goes well beyond simply maintaining the status quo
pendite lite” it is particularly disfavored.
Id. “In general, mandatory injunctions
‘are not granted unless extreme or very serious damage
will result and are not issued in doubtful cases where the
injury complained of is capable of compensation in
damages.'” Id. (quoting Anderson v.
United States, 612 F.2d 1112, 1115 (9th Cir. 1980)).
Whether to grant or deny a temporary restraining order or
preliminary injunction is a matter within the court's
discretion. Koller v. Brown, 224 F.Supp.3d 871, 875
(N.D. Cal. 2016) (citing Miss Universe, Inc. v.
Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979)).
seeking a preliminary injunction must establish: (1) a
likelihood of success on the merits; (2) that the moving
party will suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities weighs
in favor of the moving party; and (4) that an injunction will
serve the public's interest. Winter, 555 U.S. at
cases like this one, which are governed by the Prison
Litigation Reform Act (“PLRA”),
“[p]reliminary injunctive relief 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 that harm.” 18
U.S.C. § 3626(a)(2). The court must also “give
substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the
preliminary relief.” Id. The Ninth Circuit has
held that although the PLRA affects the type of prospective
injunctive relief that may be awarded, “it has not
substantially changed the threshold findings and standards
required to justify an injunction.” Gomez v.
Vernon, 255 F.3d 1118, 1129 (9th Cir.2001) (affirming
grant of prospective and retrospective relief as least
restrictive means to correct constitutional violations).
Unless the court orders otherwise after making specific
findings required by the statute, “preliminary
injunctive relief shall automatically expire on the date that
is 90 days after its entry[.]” 18 U.S.C. §
motion for preliminary injunction must be supported by
“[e]vidence that goes beyond the unverified allegations
of the pleadings.” Fidelity Nat. Title
Ins. Coverage v. Castle, 2011 WL 5882878, at *3 (N.D.
Cal. 2011) (citation omitted). However, a “district
court may rely on otherwise inadmissible evidence, including
hearsay evidence.” Id.; see also Flynt
Distrib. Co., Inc., v. Harvey, 734 F.2d 1389,
1394 (9th Cir. 1984) (“The urgency of obtaining a
preliminary injunction necessitates a prompt determination. .
. . The trial court may give even inadmissible evidence some
weight, when to do so serves the purpose of preventing
irreparable harm before trial.”); Ross-Whitney Corp
v. Smith Kline & French Lab., 207 F.2d 190, 198 (9th
Cir. 1953) (holding preliminary injunction may be granted on
purpose of deciding the present motion, the Court relies on
the following evidence submitted by McGiboney: the averments
in the complaint; the declarations submitted in support of
McGiboney's Motion and Reply Brief; documents that
evidence the recommendations made by Corizon medical staff
and outside providers regarding McGiboney's medical
condition and treatment assessment; and documents that
evidence McGiboney's administrative grievances and
responses thereto. The Court also considers the declaration
of Defendant Haggard and evidence in support submitted by
Defendant Haggard in her ...