Davis v. Glaves

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BEN DAVIS,
Plaintiff,
v.
ASHTON GLAVES, RN,
Defendant.
Case No. 3:20-cv-00100-SLG
ORDER RE: ALL PENDING MOTIONS
Ben Davis, a self-represented prisoner, has filed seven motions each of
which is addressed in this order.
BACKGROUND
On April 30, 2020, Mr. Davis, a convicted prisoner, filed a Prisoner’s Civil
Rights Complaint under 42 U.S.C. § 1983, alleging deliberate indifference to his
medical care.1 After screening in accordance with 28 U.S.C. § 1915 and notice to
the Court, Mr. Davis proceeded on his claim against Ashton Glaves, RN.2
Defendant answered on October 23, 2020 and the Court issued an initial
scheduling order.3 On November 3, 2020, Mr. Davis filed a Motion for Summary
1 Docket 1.
2 Dockets 5, 6, & 8. (The Court takes judicial notice that Defendant’s name is Ashton
Glaves, not Glades as written by Mr. Davis. Judicial notice is the “court’s acceptance, for
purposes of convenience and without requiring a party’s proof, of a well-known and
indisputable fact; the court’s power to accept such a fact.” Black’s Law Dictionary (11th
ed. 2019)). The case caption is amended as set forth above.
3 Dockets 11 & 12.
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Judgment.4 On November 10, 2020, Defendant filed an Amended Answer and a
Scheduling and Planning Conference Report and Mr. Davis filed a Motion to Add
New Defendant to Complaint.5 Defendant filed responses to Mr. Davis’s motions,6
and the Court issued a Scheduling Order and a Trial Scheduling Order.7 In
December 2020 and January 2021, Mr. Davis filed the following motions: (1)
Motion to Show Court that Defendant Refuses to Send Plaintiff to the ER for Chest
Pains and Vomiting; (2) Motion to Compel; (3) Motion to Show Summary of Case
and Update the Court; (4) Motion to Show the Court that the Medical Dept Will Not
See the Plaintiff for Chest Pains and High Blood Pressure; and (5) Motion for
Preliminary Injunction.8 Defendant filed responses to the Motion to Show Court
that Defendant Refuses to Send Plaintiff to the ER for Chest Pains and Vomiting
at Docket 21 and to the Motion to Compel at Docket 23.9
DISCUSSION
Mr. Davis has not provided sufficient grounds for any of his seven motions.
All of his motions are denied for the reasons discussed below.
4 Docket 13.
5 Dockets 14, 15, & 16.
6 Dockets 17 & 18.
7 Dockets 19 & 20.
8 Dockets 21, 23, 24, 26, & 27.
9 Dockets 22 & 25.
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I. Motion for Summary Judgment
Mr. Davis filed a “Motion for Summary Judgment” at Docket 13. Mr. Davis
alleges that Defendant “has not responded to me at all.”10 He further alleges that
he has all the witnesses, documentation, and evidence needed for trial.11 Mr.
Davis does not make a request for relief, but states that he believes he is ready for
trial.
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The burden of
showing the absence of a genuine dispute of material fact lies with the moving
party.12
Mr. Davis’s motion is not a proper motion for summary judgment. The
motion discusses his dissatisfaction with the lack of communication with
Defendant’s counsel and that he believes he is ready to proceed to trial. Mr. Davis
has not demonstrated that “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”13 Accordingly, Mr. Davis’s
Motion for Summary Judgment at Docket 13 is DENIED WITHOUT PREJUDICE.
10 Docket 13 at 2.
11 Docket 13 at 2.
12 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
13 Fed. R. Civ. P. 56(a) (“A party may move for summary judgment, identifying each claim
or defense—or the part of each claim or defense—on which summary judgment is sought.
The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”);
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II. Motion to Add New Defendant to Complaint
Mr. Davis filed a “Motion to Add New Defendant” to his complaint at Docket
16. He alleges that on October 19, 2020, he had chest pains, a corrections officer
called the medical unit, and Lynette Lowe, RN, responded.14 He further alleges
that Nurse Lowe took his vital signs, but did not perform an EKG or call a provider
and sent him back upstairs.15 Mr. Davis requests that Nurse Lowe be added as a
defendant to this action. At Docket 18, Defendant construes the motion as a
proposed amended complaint and opposes the motion on the grounds that it does
not conform to the requirements of Federal Rule of Civil Procedure 15.
Additionally, Defendant asserts that it should not be joined under Rules 19 or 20
of Federal Civil Procedure because the allegations against Nurse Lowe stem from
events unrelated to those raised in the complaint.16
Federal Rule of Civil Procedure 15(a) governs the process for amending
pleadings. A plaintiff may amend a complaint in three circumstances: (1) within
see also Fed. R. Civ. P. 56(c)(1) (stating that a moving party must support any assertions
from support in the record, such as depositions, documents, affidavits, interrogatories, or
other answers); Fed. R. Civ P. 65(c)(4) (“An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.”); see also Scheduling Order Docket 19 at 8, which establishes June
2, 2021 as the deadline for dispositive motions.
14 Docket 16 at 1-2.
15 Id. at 2.
16 Docket 16 at 3-4 (citing Fed. R. Civ. P. 19, 20) (Joinder permits the addition of new
defendants for claims arising out of the same nucleus of operative fact. That is not
applicable here).
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21 days after service or within 21 days of a responsive pleading or a motion under
Federal Rule of Civil Procedure Rules 12(b), (e), or (f); (2) with the opposing party’s
consent; or (3) with the Court’s permission.17 Additionally, Local Civil Rule 15.1
governs this Court’s practice for amending pleadings: “The proposed amended
pleading must not incorporate by reference any prior pleading, including
exhibits.”18 This means that a plaintiff cannot simply add on new claims or
defendants by motion or declaration. If a plaintiff seeks to amend his complaint,
he must file a motion and attach the proposed amended complaint that includes
all the claims the plaintiff seeks to allege.
After the parties met and conferred, the Court issued a Scheduling Order.19
The Scheduling Order directed the parties to file motions to amend the pleadings
by January 25, 2021. A party seeking to file an amended complaint after that date
must first file a motion to amend the scheduling order to modify the January 25,
2021 deadline and show good cause under Federal Rule of Civil Procedure 16.20
If the Court grants that motion and modifies the scheduling order, then Mr. Davis
will need to follow the procedure set out in the preceding paragraph of this order.
17 Fed. R. Civ. P. 15(a).
18 Local Civil Rule 15.1.
19 Docket 19.
20 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–11 (9th Cir. 1992)
(discussing that amending a complaint after a district court has issued a scheduling order
is governed by Federal Rule of Civil Procedure Rule 16(b)); see also Morgal v. Maricopa
County Bd. of Sup’rs, 284 F.R.D. 452, 459 (9th Cir. 2012).
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Accordingly, the Motion to Add New Defendant to Complaint is DENIED WITHOUT
PREJUDICE.
III. Motion to Show Court that Defendant Refuses to Send Plaintiff to the
ER for Chest Pains and Vomiting
Mr. Davis filed the above-titled motion at Docket 21. He alleges that on
November 17, 2020 at 6:30 p.m., he awoke with severe chest pains and vomiting
and that Nurse Lynette Lowe did not see him until 10:30 p.m., thereby causing him
to suffer.21 Mr. Davis further alleges Nurse Lowe checked his vital signs and called
PA Kim Aikey “who said that they were not sending anyone to the ER due to Covid
19.”22 Mr. Davis has added Lynette Lowe, RN, and Kim Aikey, PA, to the caption
of the motion. At Docket 22, Defendant opposes, asserting that (1) the motion
does not make a request for relief and (2) Lynette Lowe is not a party to this action.
As discussed above, Mr. Davis may not add claims or defendants by motion
or notice. Moreover, the motion contains no request for relief. Therefore, the
motion at Docket 21 is DENIED.
IV. Motions Requesting Court Order for Medical Treatment at Mr. Davis’s
Discretion
a. Motions at Dockets 23, 24, 26, and 27
At Docket 23, Mr. Davis filed a Motion to Compel that alleges on November
29, 2020, he had chest pains and vomiting and the medical unit refused to see him
21 Docket 21 at 1-2.
22 Docket 21 at 2.
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“if it was not life threatening[.]”23 For relief, Mr. Davis requests “an order from the
Court directing the jail to send the plaintiff to the ER when he has chest pains and
vomiting.”24
At Docket 24, Mr. Davis filed a “Motion to Show Summary of [C]ase and
[U]p[date] the [C]ourt,” which alleges that on December 31, 2020, he had chest
pains and vomiting, a nurse responded and took his vital signs, but he did not see
a provider or undergo additional tests or treatment. For relief, he requests “an
order to have the medical dept to send the plaintiff to the emergency room when
he has chest pains and is sick.”25
At Docket 26, Mr. Davis filed a “Motion to Show the [C]ourt that the [M]edical
[D]ept [W]ill [N]ot [S]ee the [P]laintiff for [C]hest [P]ains and [H]igh [B]lood
[P]ressure.” He alleges that he has high blood pressure and the medical unit
refuses to send him to the hospital. He further alleges that on January 13, 2021,
he complained of chest pains, but did not see a nurse until 11:30 p.m. and she
only checked his vital signs.26 For relief, Mr. Davis references his previous
23 Docket 23 at 2.
24 Id.
25 Docket 24 at 2.
26 Docket 26 at 1.
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requests for a court order to send him to the hospital when he is sick.27
At Docket 27, Mr. Davis filed a Motion for Preliminary Injunction. He alleges
that “[b]y not sending me to the ER for chest pain and vomiting he is likely to suffer
irreparable harm without preliminary relief. The balance of equities favors
preliminary relief. If not taken to the ER plaintiff could die.”28 For relief, Mr. Davis
requests “a preliminary injunction against the defendant to send him to the ER
when he has chest pain.”29
Defendant opposed the Motion to Compel, and because of the relief
requested construed the motion as a motion for a preliminary injunction.30
Defendant argues that Mr. Davis does not discuss or prove the required elements
to grant preliminary injunctive relief.31 Further, Defendant argues that even if the
Court granted a preliminary injunction, Defendant “is one of many nurses
employed at Anchorage Correctional Complex”; and therefore, “she would be
individually incapable of ensuring plaintiff is taken to the hospital every time he
complains of chest pain.”32 Defendant has not filed a response to the motions at
27 Docket 26 at 2.
28 Docket 27 at 1-2.
29 Docket 27 at 2.
30 Docket 25.
31 Docket 25 at 2.
32 Id.
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Dockets 24, 26, and 27. Due to the repeated request for injunctive relief, the Court
liberally construes Mr. Davis’s motions as requests for preliminary injunctive relief.
b. Legal Standard for Preliminary Injunction
Plaintiffs seeking preliminary injunctive relief must establish that “(1) they
are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in
the absence of preliminary relief; (3) the balance of equities tips in their favor; and
(4) a preliminary injunction is in the public interest.”33 Under this standard,
“plaintiffs must establish that irreparable harm is likely, not just possible, in order
to obtain a preliminary injunction.”34 “Speculative injury does not constitute
irreparable injury . . . a plaintiff must demonstrate immediate threatened injury as
a prerequisite to preliminary injunctive relief.”35 Injunctive relief is an equitable
remedy, and “[t]he essence of equity jurisdiction is the power of the court to fashion
a remedy depending upon the necessities of the particular case.”36 The Supreme
33 Sierra Forest Legacy v. Ray, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
34 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis
in the original).
35 Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)
(emphasis omitted) (citing Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472
(9th Cir. 1984) and L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197,
1201 (9th Cir. 1980)).
36 Sierra Forest, 577 F.3d at 1022 (citing United States v. Odessa Union Warehouse Co-
op, 833 F.2d 172, 175 (9th Cir. 1987)).
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Court has characterized “injunctive relief as an extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled to such relief.”37
c. Analysis
Mr. Davis is a convicted prisoner; therefore, the Eighth Amendment applies
to his allegations of inadequate medical care.38 In order to state a claim under the
Eighth Amendment for violations involving medical care, a prisoner must show that
a defendant has been deliberately indifferent to his serious medical needs.39 A
“showing of nothing more than ‘a difference of medical opinion’ as to the need to
pursue one course of treatment over another [i]s insufficient, as a matter of law, to
establish deliberate indifference. In other words, where a defendant has based his
actions on a medical judgment that either of two alternative courses of treatment
would be medically acceptable under the circumstances, plaintiff has failed to show
deliberate indifference, as a matter of law.”40 In order to prevail on a claim of
involving choices of treatment, a prisoner must plead facts, which if proven, would
show that the course of treatment was medically unacceptable in light of the
37 Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam)).
38 Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“Regardless of how evidenced, deliberate
indifference to a prisoner’s serious illness or injury states a cause of action under
§ 1983.”).
39 Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
40 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.), cert. denied, 519 U.S. 1029 (1996)
(citing Estelle, 429 U.S. at 107-08, overruled on other grounds by Peralta v. Dillard, 744
F.3d 1076 (9th Cir. 2014) (en banc)).
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circumstances and chosen in conscious disregard of an excessive risk to the
prisoner’s health.41
Through repeated motions, Mr. Davis requests that this Court order
Defendant to send him to the emergency room whenever he believes that he
needs outside medical assistance. With Dockets 23, 24, and 26, Mr. Davis alleges
three incidents when he experienced chest pain and vomiting and received care
from the medical unit that he believes was inadequate. At Docket 27, Mr. Davis
alleges that “he is likely to suffer irreparable harm,” “the balance of equities favors”
relief, and “[he] could die,” but does not provide any supporting reasoning or
evidence.42 Mr. Davis has not demonstrated that the treatment he has received
was medically unacceptable in light of the circumstances and in conscious
disregard of his health. Even taken as a whole, Mr. Davis has not alleged that the
events resulted, or could result, in an immediate threatened injury that will result in
irreparable harm. Mr. Davis’s motions lack a sufficient factual basis for this Court
to grant the extraordinary injunctive relief requested. Further, Defendant Glaves
is one nurse working at the Anchorage Correctional Complex. It would be
ineffective to grant the preliminary injunctive relief requested by Mr. Davis.
41 Jackson, 90 F.3d at 332; Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).
42 See Rosado v. Alameida, 349 F.Supp.2d 1340, 1346-47, 1349-50 (S.D. Cal. 2004)
(granting a prisoner’s request for injunctive relief to receive a liver transplant after
presenting extensive evidence of medical necessity).
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Accordingly, Mr. Davis has not met the elements required for preliminary injunctive
relief. Therefore, the motions at Dockets 23, 24, 26, and 27 are DENIED.
IT IS THEREFORE ORDERED:
1. The Clerk of Court is directed to change the caption of this suit to reflect the
proper spelling of Defendant’s name, and the case is to be renamed Davis
v. Glaves. Mr. Davis is directed to use the updated caption on all future
filings.
2. The Motion for Summary Judgment at Docket 13 is DENIED WITHOUT
PREJUDICE.
3. The Motion to Add New Defendant at Docket 16 is DENIED WITHOUT
PREJUDICE.
4. The Motion to Show Court that Defendant Refuses to Send Plaintiff to the
ER for Chest Pains and Vomiting at Docket 21 is DENIED.
5. The Motion to Compel at Docket 23 is DENIED.
6. The Motion to Show Summary of Case and Update the Court at Docket 24
is DENIED.
7. The Motion to Show the Court that the Medical Dept Will Not See the Plaintiff
for Chest Pains and High Blood Pressure at Docket 26 is DENIED.
8. The Motion for Preliminary Injunction at Docket 27 is DENIED.
DATED this 9th day of March, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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