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NA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jay Lynn Pember,

Plaintiff, 

v. 

Charles L. Ryan, et al.,

Defendants.

No. CV 17-04069-PHX-JJT (JFM)

ORDER

Plaintiff Jay Lynn Pember, who is currently confined in the Arizona State Prison 

Complex-Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983.

Before the Court is Plaintiff’s Motion for a Temporary Restraining Order and a Preliminary 

Injunction (Doc. 78).

I. Background

On screening Plaintiff’s Second Amended Complaint (Doc. 73) pursuant to 

28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment 

medical care claims against Defendants Babich, Gay, Johnson, Hawley, and Does 6-15 in 

Count Two and ordered them to answer.1(Doc. 101.) The Court dismissed the remaining 

claims and Defendants. (Id.) 

. . . . 

 

1 The Court gave Plaintiff 60 days to file a notice of substitution substituting the 

actual names of Does 6--15. (Doc. 101.) Does 6--9 were substituted for their actual names, 

Gertz, Schmid, Demery, and Torrez, respectively. (See Doc. 115.) Does 10--15 were

dismissed for failure to timely substitute. (See Doc. 130.)

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Plaintiff previously filed a “Motion for Temporary Res[t]raining Order and 

Preliminary Injunction” (Docs. 15, 19), a “Motion for Order-Access to Legal Supplies” 

(Doc. 25), and a “Motion for Temporary Restraining Order and Preliminary Injunction” 

(Doc. 29). In the motions for injunctive relief, Plaintiff sought a Court Order directing 

Defendants to provide him adequate pain medication, to take him to an outside 

neurosurgeon, and to give him access to legal supplies. (Doc. 54.) In an October 29, 2018 

Order (Doc. 54), the Court denied Plaintiff’s motions for injunctive relief. In denying 

Plaintiff’s motions, the Court found that the evidence showed Plaintiff had been taken to 

see a neurologist on August 3, 2018, additional consult requests had been submitted 

pursuant to the neurologist’s recommendations, Plaintiff’s pain was being treated with 

Meloxicam, and Plaintiff’s right to access the courts had not been violated. (Doc. 54.)

However, the Court denied the motions with leave to re-file if Plaintiff’s pain medication 

was again discontinued; if he was not scheduled for an EMG, MRI, and physical therapy 

as recommended by Dr. Feiz-Erfan; and/or if he was not scheduled for a neurosurgery 

follow-up as recommended. (Id.)

Subsequently, on January 30, 2019, Plaintiff filed a Motion for a Temporary 

Restraining Order and a Preliminary Injunction (Doc. 78).

II. Preliminary Injunction Legal Standard

“A preliminary injunction is ‘an extraordinary and drastic remedy, one that 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) (quoting Mazurek v. Armstrong, 520 

U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 

U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 

never awarded as of right”). A plaintiff seeking a preliminary injunction must show that 

(1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 

an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 

public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are 

‘serious questions going to the merits’—a lesser showing than likelihood of success on the 

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merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 

sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell 

Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious 

questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger 

showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072.

Regardless of which standard applies, the movant “has the burden of proof on each 

element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 

1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a 

mandatory preliminary injunction, which should not be granted “unless the facts and law 

clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th 

Cir. 1986) (citation omitted).

The Prison Litigation Reform Act imposes additional requirements on prisoner 

litigants who seek preliminary injunctive relief against prison officials and requires that 

any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 

the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 

999 (9th Cir. 2000).

A court may issue an injunction against a non-party only where the non-party acts 

in active concert or participation with an enjoined party. Fed. R. Civ. P. 65(d)(2) (a 

preliminary injunction only binds those who receive actual notice of it by personal service 

or are parties, their officers, agents, servants, employees, and attorneys, and persons in 

active concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1984) (“A federal court may 

issue an injunction if it has personal jurisdiction over the parties and subject matter 

jurisdiction over the claim; it may not attempt to determine the rights of persons not before 

the court.”); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 

(1969).

An injunction should not issue if it “is not of the same character, and deals with a 

matter lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, 122 F.3d 41, 43 

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(11th Cir. 1997). But if the request for relief concerns the prisoner’s access to the courts, 

“a nexus between the preliminary relief and the ultimate relief sought is not required.”

Prince v. Schriro, et al., CV 08-1299-PHX-SRB, 2009 WL 1456648, at *4 (D. Ariz. 

May 22, 2009), citing Diamontiney v. Borg, 918 F.2d 793, 796 (9th Cir. 1990).

III. Request for Medical Treatment 

A. Relevant Facts 

Plaintiff has stocking/glove peripheral neuropathy, epilepsy with petit-mal seizures, 

and a cervical impingement. (Doc. 78 ¶ 24.) Plaintiff was taking Gabapentin, which has 

since been discontinued for alleged drug-abuse, to control his petit-mal seizures and 

neuropathy pain. (Id. ¶ 10.) Plaintiff has taken Gabapentin for several years, and it is the 

most effective medication to treat neuropathy and epilepsy. (Id. ¶ 20.) On August 3, 2018, 

Plaintiff attended an outside neurosurgical consultation with Dr. Iman Feiz-Erfan at 

Maricopa Integrated Health System. (Doc. 85 at 3, 29.) Dr. Feiz-Erfan’s recommended 

treatment plan was for Plaintiff to undergo an EMG study of the bilateral upper extremities 

and lower extremities, obtain a cervical and lumbar spine MRI without contrast, and start 

physical therapy for his neck, back, and left arm and leg pain. (Id. at 31.) Upon completion 

of these recommendations, Plaintiff was instructed to return for a follow-up in two months.

(Id. at 31-32.) Dr. Feiz-Erfan’s recommendation did not include any medications. (See id. 

at 32.)

On August 7, 2018, ASPC-Eyman Defendant Johnson submitted a consultation 

request for an EMG, a cervical and thoracic spine MRI, and physical therapy pursuant to 

Dr. Feiz-Erfan’s recommendations, with a note to schedule a neurosurgery follow-up once 

these have been completed. (Id. at 36.) Johnson also issued a Special Needs Order (SNO) 

for side restraints. (Id.) On September 11, 2018, Dr. Ramirez issued an alternative 

treatment plan (ATP) for the neurologist’s recommendations, directing that Plaintiff wait 

for the results from the MRI before getting an EMG. (Id. at 42.) On September 17, 2018, 

an MRI was conducted of Plaintiff’s cervical spine. (Id. at 4.)

. . . .

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On September 26, 2018, Plaintiff was evaluated by physical therapy, and it was 

recommended that he receive six to eight physical therapy visits. (Id. at 4, 50.) On 

October 11, 2018, an ATP was issued for the physical therapy recommendation; instead of 

formal physical therapy, the ATP called for Plaintiff to have home exercise program 

directed therapy in the medical unit. (Id. at 4-5, 52-53.) On November 20, 2018, Plaintiff 

saw Nurse Practitioner Weigel and requested an increase in his Gabapentin dosage and a 

SNO for a typewriter. (Id. at 5.) Weigel increased Plaintiff’s Gabapentin dosage and told 

Plaintiff that she could not issue a SNO for a typewriter because it was not considered a 

medical tool. (Id.)

On December 3, 2018, Plaintiff had a chronic care visit with Weigel, and Weigel 

ordered HCV labs and a subsequent Gabapentin draw to measure the levels of Gabapentin 

in Plaintiff’s system. (Doc. 85 at 5.) Plaintiff told “A.D.O.C.” that he would test positive 

for opiates because he was prescribed Tylenol 3, which contains codeine. (Doc. 78 ¶ 6.)

Plaintiff’s urine tested positive for morphine, and he received two disciplinary tickets.

(Id.¶ 7.) The disciplinary hearing officers refused to consider evidence from a medical 

dictionary stating that codeine is derived from morphine. (Id. at 3.) Plaintiff filed a 

grievance regarding these tests because they were not “performed per policy” and were 

“contaminated” because a corrections officer ordered Plaintiff to use a used urine test cup.

(Id. ¶ 14.)

On December 13, 2018, Plaintiff’s labs were drawn to determine his Gabapentin 

levels. (Doc. 85 at 5.) On January 26, 2019, Weigel discontinued Plaintiff’s Gabapentin 

prescription because his levels did not match his prescribed dose and prescribed him 

codeine/acetaminophen. (Id.) Plaintiff claims that his levels were all “within their clinical 

level range” and that there was “no evidence of drug abuse.” (Doc. 78 ¶ 8.) Gabapentin 

levels should be between 2 and 19, and Plaintiff’s level was 2.1. (Id. ¶ 18.) Plaintiff claims 

that medications are not delivered consistently, are mixed up, and are often forgotten by 

new employees, which could “change test results.” (Id. ¶ 21.) Plaintiff also states that per 

ADC policy, when a medication is discontinued, the dosage should be decreased to allow 

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the patient to ween off of it, but Plaintiff’s Gabapentin was discontinued abruptly. (Id.

¶ 20.)

Plaintiff further claims that he has hepatitis C and the December 3, 2018, blood test 

results showed his liver function was a 7.8. (Id. ¶ 18.) Plaintiff asserts that a result above 2 

requires further testing and treatment. (Id.) When Plaintiff asked about that result, Weigal 

told Plaintiff that she would re-test his blood, but not the Gabapentin level. (Id. ¶ 21.)

Plaintiff claims that if any result is in question from a certain blood test, all of the results 

should be in question and be re-tested. (Id.) 

On January 15, 2019, Nurse Practitioner Avant-Ortiz saw Plaintiff regarding his 

lower back pain, and Plaintiff reported that he had “difficulty ambulating, decreased range 

of motion, myalgia, arthralgia, numbness, tingling, weakness and pain.” (Doc. 85 at 5-6.)

Avant-Ortiz requested an EMG and an MRI of Plaintiff’s lumbar spine without contrast, 

noted that she would place an order for physical therapy after testing was completed and 

the neurosurgeon had an opportunity to review the results, and stated that she would send 

the results of the scans to the neurologist and schedule Plaintiff a follow-up appointment 

with the neurologist after receiving the results. (Id. at 92.) Defendants claim that the EMG 

and MRI of the lumbar spine consult requests were “initiated by the clinical coordinator.”

(Id. at 6.) On July 25, 2019, Plaintiff filed a Motion for Extension that states that the EMG 

had been completed, but the MRI of his lumbar spine was outstanding, he had not 

completed any physical therapy sessions, and no referral to the neurologist was pending.

(See Doc. 143 at 1-2.)

Plaintiff seeks a Court order directing Defendants to show cause why his 

Gabapentin was discontinued and why they have not carried out Dr. Feiz-Erfan’s 

recommendations. (Id. at 6.) Plaintiff claims that as of January 4, 2019, there were no 

pending referrals, as recommended by Dr. Feiz-Erfan. (Id. ¶ 1.) Plaintiff asserts that 

Corizon had a custom and practice of “rubber stamp[ing]” recommendations and instead 

prescribing an ATP in an attempt to “delay and deny medical care.” (Id. ¶ 3.) Plaintiff states 

that prescribing an ATP “means [providing] no treatment at all.” (Id.) Plaintiff has gone to 

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medical numerous times requesting the imaging recommended by Dr. Feiz-Erfan, but states 

“if there is no diagnosis, they don’t have to treat anything.” (Id.) Plaintiff claims that the 

pain in his hands will increase, and his seizures “will also increase.” (Id. ¶ 13.) Plaintiff 

must use both hands to write because his dominant hand is in pain and is numb and weak.

(Id.) Plaintiff’s hands “feel like they are burning” when he is not medicated. (Id.) Plaintiff’s 

“pains are unbearable,” and “he will lose his mobility[] once the Gabapentin is out of his 

system.” (Id. ¶ 25.)

B. Analysis

1. Likelihood of Success /Serious Questions

To establish a likelihood of success on the merits of an Eighth Amendment medical 

care claim, a prisoner must demonstrate “deliberate indifference to serious medical needs.”

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 

104 (1976)). The prisoner must show (1) that his condition constitutes a “serious medical

need” and (2) that the defendant’s response to that need was deliberately indifferent. Jett, 

439 F.3d at 1096.

Defendants do not argue that Plaintiff’s condition does not constitute a serious 

medical need. (See Doc. 85.) Further, the record shows that Plaintiff has been diagnosed 

with neuropathy, degenerative disc disease, chronic neck and back pain, and radiculopathy; 

that his conditions have been worthy of treatment, and that he has reported pain, burning, 

and numbness. See McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) (examples 

of indications that a prisoner has a serious medical need include “[t]he 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”), overruled on other 

grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Plaintiff 

therefore demonstrates that his condition constitutes a serious medical need.

With respect to the second prong, “prison officials are deliberately indifferent to a 

prisoner’s serious medical needs when they deny, delay, or intentionally interfere with 

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medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations 

and quotation marks omitted). Deliberate indifference may also be established where a 

prisoner shows that doctors chose a course of treatment that was “medically unacceptable 

under the circumstances” and “that they chose this course in conscious disregard of an 

excessive risk to [the prisoner’s] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 

1996); see Jett, 439 F.3d at 1097–98 (jury could find deliberate indifference where the 

prison doctor was aware that the plaintiff needed to see an orthopedist for treatment and 

the plaintiff was not taken to the orthopedist for 6 months). The Ninth Circuit and other 

courts have routinely found that failure to follow a specialist’s recommendation may 

amount to a course of treatment that is medically unacceptable. See Colwell v. Bannister, 

763 F.3d 1060, 1069 (9th Cir. 2014) (denying summary judgment where prison officials 

“ignored the recommendations of treating specialists and instead relied on the opinions of 

non-specialist and non-treating medical officials who made decisions based on an 

administrative policy”); Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (where the

treating physician and specialist recommended surgery, a reasonable jury could conclude

that it was medically unacceptable for the non-treating, non-specialist physicians to deny

recommendations for surgery), overruled in part on other grounds by Peralta v. Dillard, 

744 F.3d 1076, 1083 (9th Cir. 2014); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999)

(the defendant physician’s refusal to follow the advice of treating specialists could

constitute deliberate indifference to serious medical needs); McNearney v. Wash. Dep’t of 

Corrs., C11-5930 RBL/KLS, 2012 WL 3545267, at *26 (W.D. Wash. June 15, 2012) (in 

granting a preliminary injunction for specialist treatment, the district court found that the 

prisoner plaintiff showed a likelihood of success on the merits of her Eighth Amendment 

claim where the defendants failed to follow an orthopedic surgeon’s strong 

recommendation for further orthopedic evaluation). In addition, a failure to competently 

treat a serious medical condition, even if some treatment is prescribed, may constitute 

deliberate indifference in a particular case. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 

(9th Cir. 1989) (“access to medical staff is meaningless unless that staff is competent and 

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can render competent care”); see Estelle, 429 U.S. at 105 & n. 10 (the treatment received 

by a prisoner can be so bad that the treatment itself manifests deliberate indifference); 

Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (prisoner does not have to prove that 

he was completely denied medical care).

a. Specialist Recommendations

The medical records show that the treating neurosurgeon, Dr. Feiz-Erfan, 

recommended an MRI of Plaintiff’s cervical and lumbar spine without contrast; an EMG 

study of Plaintiff’s bilateral upper and lower extremities; physical therapy for neck, back, 

and left arm and leg pain, and a follow-up visit with him “in about 2 months (around 

10/3/2018).” (Doc. 85 at 31-32.) An MRI of the cervical spine was completed on 

September 17, 2019, and Plaintiff had a physical therapy evaluation on September 26, 

2018. (Id. at 9.) Defendants allege that an MRI of the lumbar spine and an EMG were 

requested and initiated. (Id.) Defendants therefore maintain that there is no evidence that 

Defendants have been substantially indifferent to Plaintiff’s serious medical needs, that 

“Plaintiff has been continuously treated for his medical complaints,” and that he cannot 

show a likelihood of success on the merits. (Id. at 10.)

There is no evidence that Plaintiff has received the recommended MRI of the lumbar 

spine or physical therapy or that Plaintiff has returned to see Dr. Feiz-Erfan for a followup visit.

2 On this record, there are serious questions whether Defendants’ failure to follow

the treating specialist’s recommendations was medically unacceptable. See Alliance for the 

Wild Rockies, 632 F.3d at 1135 (under the sliding-scale test, a court may issue a preliminary 

injunction if the plaintiff demonstrates “serious questions going to the merits and a balance 

of hardships that tips sharply towards the plaintiff”); see also Republic of the Phil. v. 

Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (“[s]erious questions need not promise a 

certainty of success, nor even present a probability of success, but must involve a fair 

chance of success on the merits”) (internal quotation omitted). 

 

2 On July 25, 2019, Plaintiff filed a Motion for Extension (Doc. 143) in which he 

indicates, however, that the EMG was completed. 

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b. Pain Management

The medical records show that Plaintiff’s Gabapentin prescription was discontinued 

on January 26, 2019, because Nurse Practitioner Weigel found that Plaintiff’s lab levels 

did not match his prescribed dose, and the “low levels indicat[ed] potential abuse of the 

drug.” (Doc. 85 at 9.) On the same day, Weigel prescribed Plaintiff 

codeine/acetaminophen. (Id.) ADC indicates in its Response that, as of February 14, 2019, 

Plaintiff was prescribed codeine/acetaminophen. (Doc. 89 at 3.) Plaintiff states in his Reply 

that “Corizon has consistently discontinued [his] pain medication,” and as of February 27, 

2019, he was not receiving any prescribed pain medication. (Doc. 100 at 1, 5.) Plaintiff 

states that Weigel discontinued his prescription for Meloxicam on February 10, 2019, and 

his prescription for Tylenol-3 was discontinued on February 27, 2019. (Id. at 5; Doc. 92 at 

4.) Consequently, there are serious questions whether Defendants’ treatment of Plaintiff’s 

pain was medically acceptable. Accordingly, Plaintiff satisfies the first Winter factor.

2. Irreparable Injury

Plaintiff must demonstrate that absent an injunction, he will be exposed to 

irreparable harm. Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th 

1988) (speculative injury is not irreparable injury sufficient for a preliminary injunction); 

see Winter, 555 U.S. at 22. To support a mandatory preliminary injunction for specific 

medical treatment, a plaintiff must demonstrate ongoing harm or the present threat of 

irreparable injury, not a past injury. See Conn. v. Mass., 282 U.S. 660, 674 (1931) (an 

injunction is only appropriate “to prevent existing or presently threatened injuries”); 

Caribbean Marine, 844 F.2d at 674. “[T]here must be a presently existing threat of harm, 

although injury need not be certain to occur.” Villaneuva v. Sisto, CIV S-06-2706 LKK 

EFB P, 2008 WL 4467512, at *3 (E.D. Cal. Oct. 3, 2008) (citing FDIC v. Garner, 125 F.3d 

1272, 1279–80 (9th Cir. 1997)). Pain can constitute irreparable harm. See Rodde v. Bonta, 

357 F.3d 988, 999 (9th Cir. 2004) (irreparable harm includes delayed and/or complete lack 

of necessary treatment, and increased pain); McNearney, 2012 WL 3545267, at *14 

(finding a likelihood of irreparable injury where the plaintiff’s medical condition predated 

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her incarceration and had not worsened, but the evidence showed that she continued to 

suffer unnecessary pain due to the defendants’ inadequate treatment plan); Von Collin v. 

Cnty. of Ventura, 189 F.R.D. 583, 598 (C.D. Cal. 1989) (“Defendants do not argue that 

pain and suffering is not irreparable harm, nor could they”).

a. Specialist Recommendations

At the time he filed his Motion, Plaintiff was suffering pain, weakness, and 

numbness. (See Doc. 78 ¶ 13.) Defendants stated in their Response that “consult requests 

have been initiated by the clinical coordinator”; however, there is no evidence to support 

that the outstanding specialist recommendations have been executed. On July 25, 2019, 

Plaintiff filed a Motion for Extension indicating that he still had not received an MRI of 

his lumbar spine, completed any physical therapy, or had a follow-up visit with the 

neurologist. On this record, Plaintiff’s allegations that Defendants have yet to execute the 

specialist’s recommendations and that he is still in pain are enough to show he faces a threat 

of irreparable harm.

b. Pain Management 

As noted above, Plaintiff was suffering pain, weakness, and numbness when he filed 

his Motion. (See Doc. 78 ¶ 13.) In their Response, Defendants state that Nurse Practitioner 

Weigel prescribed Plaintiff codeine/acetaminophen on January 26, 2019. (Doc. 85 at 5.) In 

his Reply, filed on February 27, 2019, Plaintiff indicates that he is “suffering” with 

“increased intense pain” because his prescribed pain medications were discontinued.

(Doc. 100 at 1, 4-5.) However, Plaintiff’s statements as to his pain management in January 

and February 2019 are insufficient to establish whether there is presently an ongoing harm 

or threat of irreparable injury. Nor does the Court have any information as to Defendants’ 

current conduct with respect to Plaintiff’s pain management. See Farmer, 511 U.S. at 845 

(a defendant’s current conduct determines whether injunctive relief is warranted).

Accordingly, the Court will grant Plaintiff’s Motion for Temporary Restraining 

Order and Preliminary Injunction as to his request for Gabapentin to the extent it will direct 

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Defendants to file a notice specific to Plaintiff’s current pain management; in all other 

respects, this portion of the Motion will be denied. 

3. Balance of Hardships and Public Policy – Specialist 

Recommendations

Because Plaintiff has shown serious questions going to the merits of his claims, he 

must also show that the balance of the hardship tips sharply in his favor and the other 

Winter factors are met. Alliance for the Wild Rockies, 632 F.3d at 1135. Defendants do not 

suggest that providing Plaintiff with an MRI of his lumbar spine, physical therapy, and a 

follow-up appointment with the neurologist outweighs the hardship to Plaintiff of suffering 

continued pain, numbness, and weakness. Moreover, the Ninth Circuit has held that the 

interest in protecting individuals from physical harm outweighs a government entity’s 

monetary costs in providing relief. See Harris v. Bd. of Supervisors, L.A. Cnty., 366 F.3d 

754, 766 (9th Cir. 2004) (“faced with a conflict between financial concerns and preventable 

human suffering, [the court has] little difficulty concluding that the balance of hardships 

tips decidedly in plaintiff’s favor”) (internal quotation omitted). Based on this principle, 

the balance of the hardships here—as evidenced by Plaintiff’s continued pain and increased 

disability—tips sharply in Plaintiff’s favor, and it is in the public interest to order some 

form of preliminary injunctive relief. See United States v. Raines, 362 U.S. 17, 27 (1960) 

(the protection of constitutional rights is a compelling public interest that must be 

considered in the balancing of hardships).

4. Requested Relief – Specialist Recommendations 

The Court must next determine whether the relief Plaintiff requests is narrowly 

drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2).

In this case, the evidence shows that Plaintiff’s request for Defendants to execute Dr. FeizErfan’s recommendations has at least been partially met by the MRI of his cervical spine, 

EMG, and physical therapy consultation. There is no evidence, however, that Plaintiff is 

scheduled for physical therapy sessions, an MRI of his lumbar spine, or any other followup care, and the evidence Plaintiff provided indicates that his pain and disabilities have not 

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been treated. On this record, the least intrusive relief available is to order Defendants to

transport Plaintiff to have an MRI on his lumbar spine taken, provide Plaintiff with physical 

therapy, and take Plaintiff to a follow-up appointment with Dr. Feiz-Erfan. This relief goes 

no farther than the specialist’s recommendations.

Accordingly, the Court will grant Plaintiff’s Motion to the extent that it will order 

Defendants within 20 days of this Order to produce evidence that (1) Plaintiff either is 

currently receiving physical therapy, or such relief is no longer medically indicated, (2) 

Plaintiff has received an MRI of his lumbar spine, or that an MRI of the lumbar spine is no 

longer medically-indicated, and (3) Plaintiff has seen or is scheduled to see Dr. Feiz-Erfan

for a follow-up evaluation and recommended care.

III. Request for Typewriter 

Plaintiff also asks the Court to order Defendants to give him access to “auxiliary 

aids.” (Doc.78 at 6.) Plaintiff asks for a typewriter because he will soon be unable to 

handwrite his legal documents due to the pain and weakness in his hands caused by 

neuropathy. (Id. ¶ 13, 25.) Plaintiff states that he will purchase the typewriter himself and 

that, per ADC policy, he is allowed to have a typewriter. (Id. ¶¶ 26-27.)

Defendants cite several reasons why the Court should deny Plaintiff’s request for a 

typewriter. (Doc. 85 at 9.) Defendants argue that the typewriter request should be denied 

because (1) the request for a typewriter is outside the scope of the Second Amended 

Complaint; (2) the ADC is not a defendant in this action; (3) Plaintiff has not shown a 

medical necessity for a typewriter; and (4) Plaintiff has not provided evidence that he is 

unable to write in support of his claims. (Id.)

Non-party ADC also filed a Response citing several reasons why the Court should 

deny Plaintiff’s request for a typewriter. (Doc. 96.) ADC asserts that DO 902-3.3.6 charges 

the ADC’s Legal Access Monitor with “[e]nsuring accommodations and arrangements are 

being made for special needs inmates,” which means that before an inmate seeks court 

intervention, he should request the accommodation from the ADC’s Legal Access Monitor. 

(Id.) ADC argues that Plaintiff has not shown he has pursued available prison 

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administrative remedies for a typewriter or some other appropriate accommodation. (Id.)

ADC also argues that the typewriter request should be denied because (1) the request is 

outside the scope of the allegations in his Second Amended Complaint; (2) Plaintiff has 

not shown a medical necessity for a typewriter such that it would be medically appropriate 

for ADC to provide the requested relief; and (3) Plaintiff has shown that he is able to 

handwrite legible documents to be filed with the Court. (Id.)

In his Reply, Plaintiff states that ADC and Corizon “conspired together against 

[him] in retaliation for his complaints, litigation and persistence to receive medical care.”

(Doc. 92 at 3.) Plaintiff’s claim of retaliation by ADC and Corizon appears to be based on 

the allegation that ADC gave Plaintiff disciplinary tickets because his urine test, which was 

taken by Corizon, came back positive for opiates. (Id.) Plaintiff claims that ADC and 

Corizon accused him of drug abuse without evidence and that he filed grievances against 

ADC and Corizon alleging retaliation and excessive drug testing. (Id.) Plaintiff also states 

that he was previously able to handwrite documents because he was on pain medication, 

but those medications have since been discontinued. (Id. at 5.) In his second Reply, Plaintiff 

asserts that in a prior case, Pember v. Ryan, et al., CV 11-02332-PHX-SMM, Senior 

District Judge McNamee denied Plaintiff’s request for a typewrite because counsel was 

appointed to represent Plaintiff in that matter, and Judge McNamee stated that Plaintiff 

could renew his motion for a typewriter if Plaintiff was no longer represented by counsel.

(Doc. 100 at 4.) Plaintiff provided evidence that Ernest Trujillo, the Norther Regional 

Operation Director, responded to Plaintiff’s letter and stated that Plaintiff will be escorted 

to a designated location with a typewriter to work on his legal issues and that if Plaintiff 

purchased his own typewriter, he would be issued “a property received form stating that 

[he] can have it in his cell.” (Id. at 35.) Trujillo and Director Ryan later responded that 

Plaintiff would not be allowed to possess a loaner typewriter because the loaner typewriter 

“was taken from [Plaintiff] due to a motion from the courts denying your request to have 

the typewriter.” (Id. at 31, 33.)

. . . . 

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As a preliminary matter, although Plaintiff’s underlying claim is an Eighth 

Amendment medical care claim, his request for a typewriter relates to his alleged inability 

to draft legal documents and litigate this action, i.e., his access to the court. “[W]here

preliminary relief is directed to the prisoner’s access to the Courts, a nexus between the 

preliminary relief and the ultimate relief sought is not required.” Prince v. Schriro, et al., 

CV 08-1299-PHX-SRB, 2009 WL 1456648, at *4 (D. Ariz. May 22, 2009) (citing 

Diamontiney v. Borg, 918 F.2d 793, 796 (9th Cir. 1990)).

While there is a constitutional right of access to the courts, Bounds v. Smith, 430 

U.S. 817, 821 (1977), there is no constitutional right to a typewriter in prison. Lindquist v. 

Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985). The Ninth Circuit has held 

that inmates have no right to a typewriter to prepare legal documents as long as there 

remains some other means of preparing legal documents. Phillips v. Hust, 477 F.3d 1070, 

1077 (9th Cir. 2007), vacated on other grounds, 555 U.S. 1150 (2009). To maintain an 

access-to-courts claim, an inmate must submit evidence showing an “actual injury” 

resulting from the defendant’s actions. Lewis v. Casey, 518 U.S. 343, 349 (1996). With 

respect to an existing case, the actual injury must be “actual prejudice . . . such as the 

inability to meet a filing deadline or to present a claim.” Id. at 348-49.

Plaintiff has failed to show a likelihood of success on the merits or irreparable injury 

as it pertains to an access-to-courts claim. There is no evidence that Plaintiff has faced an 

unreasonable delay or the inability to file anything in this action. A review of the docket in 

this matter reflects that Plaintiff has filed numerous motions and responses in this action, 

several of which were filed after Plaintiff filed his Motion for a Temporary Restraining 

Order and a Preliminary Injunction and Reply, and are all of these documents are legible.3

Thus, Plaintiff has not established actual injury on this record. Also, Plaintiff has not shown 

that he faces irreparable injury to his ability to litigate absent a typewriter or that a 

typewriter is the least intrusive means necessary to correct the alleged harm.

. . . . 

 

3 See Docs. 103, 104, 105, 106, 111, 113, 114, 116, 129, 143, 148, 150.

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Additionally, even though Plaintiff may be entitled to relief even for claims not pled 

in the Complaint where his access to the Court is at stake, Plaintiff seeks injunctive relief 

against ADC—a non-party—but Plaintiff has made no showing that ADC is acting in 

active concert or participation with the Defendants. Plaintiff’s new allegations of retaliation 

and conspiracy do not give the Court jurisdiction over ADC because there is no evidence 

that ADC and Corizon were acting in active concert or participation with each other 

regarding matters in this lawsuit. As such, it appears that the Court lacks jurisdiction to 

issue the relief Plaintiff seeks. Lastly, the proceedings in Plaintiff’s prior case, CV 11-

02332, do not show that Plaintiff is entitled to a typewriter in this action. Accordingly, 

Plaintiff’s Motion will be denied as to his request for a typewriter.

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 

for Temporary Restraining Order and Preliminary Injunction (Doc. 78).

(2) Plaintiff’s Motion for Temporary Restraining Order and Preliminary 

Injunction is denied as to Plaintiff’s request for a typewriter; the Motion is granted to the 

extent set forth in this Order as to Plaintiff’s request that Defendants execute Dr. FeizErfan’s recommendations; and the Motion is granted as to Plaintiff’s request that 

Defendants renew his Gabapentin prescription to the extent the Court will require

Defendants to file a notice with the Court regarding Plaintiff’s pain management; in all 

other respects, that portion of the Motion is denied.

(3) Within 20 days of the date of this Order, Defendants must file a notice with 

documentary evidence indicating Plaintiff’s condition at the present time and his current 

course of treatment, specifically pertaining to pain management.

. . . .

. . . .

. . . .

. . . .

. . . .

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(4) Within 20 days of this Order, Defendants must file a Notice with the Court, 

showing that (1) Plaintiff either is currently receiving physical therapy, or such relief is no 

longer medically indicated, (2) Plaintiff has received an MRI of his lumbar spine, or that 

an MRI of the lumbar spine is no longer medically-indicated, and (3) Plaintiff has seen or 

is scheduled to see Dr. Feiz-Erfan for a follow-up evaluation and recommended care.

Dated this 27th day of August, 2019.

Honorable John J. Tuchi

United States District Judge

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