Opinion
Case No. C11-5539BHS.
October 6, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 15) and Plaintiff Clinton Heck's ("Heck") objections to the R R (Dkt. 16).
On August 1, 2011, Heck filed a civil rights complaint (Dkt. 5) and a motion for temporary restraining order and preliminary injunction (Dkt. 6). In the motion, Heck requests that the Court order prison officials to treat his Attention Deficit Hyperactive Disorder with a medication that is not on the normal formula for prescriptions at the prison. Id. On August 31, 2011, Judge Creatura issued the R R recommending that the Court deny Heck's motion because "it is improbable that [Heck] will prevail on the merits." Dkt. 15.
In the R R, Judge Creatura concluded that Heck failed to show that he met the test for deliberate indifference under the cruel and unusual punishment clause of the Eighth Amendment. Id. at 2-3. Specifically, Judge Creatura found that:
The disagreement [between prison officials and Heck] regarding a course of treatment for [Heck's] alleged mental condition does not amount to deliberate indifference. Further, [Heck] fails to show he will suffer irreparable injury if injunctive relief is denied.Id. at 3.
Heck objects to the R R on the basis that he has established questions of fact regarding his claim under the Eighth Amendment (Dkt. 16 at 2-4), his claim under the American with Disabilities Act, 42 U.S.C.A. § 12101, et seq. (Dkt. 16 at 4-5), and his claim for accommodation of a fundamental right ( id. at 6-10). Heck's burden for preliminary relief, however, is to show a probability of success on the merits. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1137-38 (9th Cir. 2011). Heck has failed to meet this burden.
Therefore, the Court having considered the R R, Heck's objections, and the remaining record, does hereby find and order as follows:
(1) The R R is ADOPTED; and
(2) Heck's motion for preliminary relief (Dkt. 6) is DENIED.