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KAB 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gary Jerome Harper, 

Plaintiff, 

v. 

Charles L. Ryan, et al., 

Defendants. 

 No. CV 18-00298-PHX-DGC (DMF) 

ORDER 

Plaintiff Gary Jerome Harper, who is currently confined in the Arizona State 

Prison Complex-Eyman, filed this action pursuant to 42 U.S.C. § 1983. Before the Court 

is Plaintiff’s “Motion for Emergency Injunction Against the Defendants Charles L. Ryan 

and Corizon Health Services John Does” (Doc. 3). The Court will deny the motion. 

I. Motion for Emergency Injunction

 In his Motion seeking injunctive relief, Plaintiff asks the Court to order 

“Defendant Corizon Health Services providers to take him to the Urologist Dr. Shah for 

medical treatment concerning his suprapubic catheter1

 that was put inside of Plaintiff’s 

body.” (Doc. 3 at 1.) Plaintiff alleges that he has not been given supplies to clean the 

area around the open wound, and has not been given medication to keep the area from 

becoming infected. (Id.) Plaintiff asserts that he has requested that the catheter be 

 

1

 “A suprapubic catheter is a sterile (germ-free) tube that drains urine out of the 

bladder. It is inserted through a stoma (created opening) in the abdomen and into the 

bladder.” (Doc. 20 at 1 n.1.) 
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removed because of “cloudy foul smelling and yellow drainage from the area.” (Id. at 2.) 

Plaintiff claims that Corizon’s providers refuse to treat him because he has terminal 

cancer and they believe it would be a waste of resources. (Id. at 3.) 

 In response, Defendant Corizon Health presents the following evidence. On 

November 27, 2017, Plaintiff was sent to Maricopa Integrated Health Systems for 

placement of a suprapubic catheter, and his providers ordered all medications prescribed 

by the surgeon, including Tylenol-3, Colace, Senokot, and Ibuprofen. (Doc. 20 at 29-36.) 

Thereafter, Plaintiff was brought to the medical hub daily for the next 30 days for wound 

care. (Id. at 38-43.) Plaintiff was instructed to shower daily, clean the wound with soap 

and water, and then come to medical for dressing changes. (Id. at 45.) 

 On December 4, 2017, Plaintiff began exhibiting signs of infection at the catheter 

site and was treated with two courses of antibiotics when the infection did not 

immediately clear up. (Id. at 53-58.) In mid-late December 2017, the nurses recorded 

that Plaintiff did not appear to be following instructions for daily showers and wound 

care. (Id. at 60-62.) 

 On January 3, 2018, Nurse Practitioner Gay changed Plaintiff’s catheter, 

prescribed additional antibiotics for a urinary tract infection, and told Plaintiff he would 

be seeing a urologist regarding his request for catheter removal. (Id. at 64-70.) On 

January 26, 2018, Plaintiff saw Dr. Shaw at Maricopa Integrated, and Dr. Shaw changed 

Plaintiff’s catheter, noting no signs of leakage or infection. (Id. at 73-76.) Dr. Shaw 

recommended monthly catheter changes at the facility. (Id. at 74.) Upon his return to 

prison, a nurse practitioner ordered Plaintiff weekly dressing change supplies, including 

antibacterial soap, split gauze dressing, and roll tape, and prescribed Tylenol-3 for pain. 

(Id. at 78-82.) On February 1, 2018, Plaintiff complained of discharge from his catheter 

site, but the nurse practitioner examining him found no signs of infection and educated 

Plaintiff regarding how to change the dressing on the catheter. (Id. at 84-90.) Plaintiff’s 

catheter was changed on-site on February 27, 2018 and April 17, 2018. (Id. at 92-95.) In 

February 2018, Plaintiff was prescribed long-term Nitrofurantoin to treat and prevent his 
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chronic urinary tract infections. (Id. at 81-82.) On April 24, 2018, Plaintiff was seen for 

a possible urinary tract infection. Antibiotics were prescribed, and Plaintiff’s orders for 

catheter supplies were renewed. (Id. at 97-100.) Plaintiff was subsequently prescribed 

two additional antibiotics to clear the infection. (Id. at 102-105.) On June 5, 2018, 

Plaintiff arrived at medical complaining that his catheter had fallen out. Nurse Vinson 

replaced the catheter and noted no discharge or other signs of infection. (Id. at 107-116.) 

The nurse also noted that after he told Plaintiff he would be on medical watch for 24 

hours, Plaintiff “became upset and threatened to pull out s/p catheter and threw medical 

supplies given to him on the floor.” (Id. at 108.) 

 In Reply, Plaintiff asserts that his medical records show that Corizon has been 

days overdue with every catheter change since it was placed on November 27, 2017. 

(Doc. 23 at 11.) Plaintiff argues that although “Cipro” is prescribed for his urinary tract 

infections, it is not effective. (Id.) He further asserts that although he has been prescribed 

Tylenol 3 for his pain, it is not sufficient and should not be used for a long period of time. 

(Id. at 12.) Plaintiff asserts that his order for lower tier/lower bunk has not been 

followed. (Id. at 12-13.) He asserts that he tested positive for MRSA on April 30, 2018. 

(Id.) And he asserts that he is “not receiving appropriate urology and oncology care, and 

is being exposed to a continuous risk of significant injury along with unnecessary and 

wanton infliction of pain.” (Id. at 13.)2

 

II. 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, 

 

2

 Plaintiff later filed a “Motion to Amend” his reply seeking to add allegations 

regarding alleged incidents of retaliation that occurred after Plaintiff’s motion seeking 

injunctive relief was fully briefed. To the extent Plaintiff seeks relief for events that 

occurred after the filing of his original motion, he must file a new motion in order to give 

Defendants an opportunity to respond. Accordingly, Plaintiff’s Motion to Amend 

(Doc. 26) will be denied. 
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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 

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). 

III. Discussion 

 In his Motion, Plaintiff alleged that he was being denied supplies for his catheter, 

that the catheter area was infected, and that he was denied medication for his pain. The 
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medical records submitted with Defendant’s response contradict these allegations and 

show that Plaintiff has been provided continuous care with regard to his catheter. In 

reply, Plaintiff seeks to add additional allegations regarding alleged delays for 

replacements of his catheters, his Special Needs Order, and his disagreement with the 

pain medication he has been offered. These new allegations do not establish that Plaintiff 

will suffer irreparable harm in the absence of a Court order directing that Corizon take 

Plaintiff “to the Urologist Dr. Shah for medical treatment concerning his suprapubic 

catheter,” and it is unclear from this record what treatment Dr. Shah could provide that 

Plaintiff is not already receiving. Plaintiff has neither shown irreparable harm in the 

absence of an injunction or how the injunction he seeks is the least intrusive means to 

correct any harm of which he complains. 

IT IS ORDERED:

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

“Motion for Emergency Injunction Against the Defendants Charles L. Ryan and Corizon 

Health Services John Does” (Doc. 3) and Plaintiff’s “Motion to Amend Document 23” 

(Doc. 26). 

 (2) Plaintiff’s “Motion to Amend Document 23” (Doc. 26) is denied. 

 (3) Plaintiff’s “Motion for Emergency Injunction Against the Defendants 

Charles L. Ryan and Corizon Health Services John Does” (Doc. 3) is denied. 

 Dated this 10th day of September, 2018.