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SH 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Michael More, 

Plaintiff, 

v. 

Charles L. Ryan, et al., 

Defendants. 

 No. CV 18-00626 PHX DGC 

ORDER 

Plaintiff Michael More, who is currently confined in the Arizona State Prison 

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

Before the Court is Plaintiff’s Motion for Preliminary Injunction and Temporary 

Restraining Order. (Doc. 5.) The Court will deny the motion. 1

I. Background 

 On screening pursuant to 28 U.S.C. § 1915(A)(a), the Court found that Plaintiff 

stated Eighth Amendment medical claims against Defendants Corizon, Ende, Rogers, 

Labar, Coleman, Grabowski, Myers, Elijah, and Barnett and directed them to answer. 

(Doc. 15.) The Court dismissed the remaining claims and Defendants (Id.) 

 Plaintiff now moves for injunctive relief and seeks a Court order directing 

Defendants to have his automated implantable cardioverter defibrillator (AICD) replaced 

and to take him for follow-up echocardiograms (ECG) every three months. (Doc. 5 at 3.) 

 

1

 Also before the Court are Plaintiff’s Motion to Direct Defendants to Answer 

(Doc. 13) and Motion to Appoint Counsel (Doc. 14), which will be addressed in a 

separate Order. 
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II. Motion for Injunctive Relief

 A. 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 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 
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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). 

B. Analysis 

The Court will deny Plaintiff’s motion because he has failed to show that he is 

likely to succeed on the merits of his claim or that he will suffer irreparable harm absent 

injunctive relief. 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 current 

response to that need is deliberately indifferent. Jett , 439 F.3d at 1096. 

 Defendants have presented evidence that Plaintiff had his AICD successfully 

replaced during an offsite procedure on March 12, 2018, and that when the new AICD 

was tested during an offsite follow-up appointment on March 30, 2018, it was reported as 

functioning normally. (Doc. 17 at 30-35, 48.) Since the replacement of his AICD, 

Plaintiff has reported improvement of his symptoms. (Id. at 48.) Further, the results of 

Plaintiff’s most recent ECG on January 22, 2018 were normal and a follow-up ECG in 

six months was recommended. (Id. at 26-27.) Plaintiff has failed to produce any 

contradictory medical evidence. 

 Therefore, based on the available facts, there is no evidence that Plaintiff’s serious 

medical needs have been disregarded. Plaintiff has also failed to show that he will suffer 

irreparable harm if his requested relief of having an ECG every three months is not 

granted. 

 Because Plaintiff fails to produce evidence to show a likelihood of success on the 

merits or that he faces a likelihood of irreparable harm, the Court will deny the motion 

for injunctive relief and will not address any of the other Winter factors. See Ctr. for 

Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011). 
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 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 

Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 5), 

and the motion is denied. 

 Dated this 20th day of April, 2018.