Foster #111069 v. NaphCare Incorporated

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SKC
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Johnny Ray Foster,
Plaintiff,
v.
NaphCare Incorporated,
Defendant.
No. CV-26-00251-PHX-JAT (DMF)
ORDER
Plaintiff Johnny Ray Foster, who is currently confined in the Arizona State Prison
Complex (ASPC)-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983.
Plaintiff also filed a Motion for Emergency Preliminary Injunction [] and for Emergency
Evaluation and Treatment of Plaintiff’s Right Eye Injury (Doc. 4). Plaintiff sought an
immediate ophthalmologist evaluation, and the Court denied the Motion, finding that
Plaintiff failed to show a likelihood of success on the merits of his claims or that he faces
a threat of irreparable harm absent preliminary injunctive relief. (See Doc. 24 at 10.)1
Before the Court is Plaintiff’s “Motion: for Rehearing of the Court’s Decision
Denying Plaintiff’s Motion for Preliminary Injunction [] and for Emergency Evaluation
and Treatment of Plaintiff’s Right Eye Injury (Doc. 4) and for an Evidentiary Hearing and
Appointment of Counsel for Plaintiff” (Doc. 25), which the Court construes as a motion
1 To be entitled to preliminary injunctive relief, a plaintiff must demonstrate 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 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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for reconsideration of its Order denying Plaintiff’s Motion for Preliminary Injunction. The
Court will deny the Motion for Reconsideration.
I. Background
On screening Plaintiff’s Complaint under 28 U.S.C. § 1915A(a), the Court found
that Plaintiff stated an Eighth Amendment medical care claim against Defendant NaphCare
Incorporated—the contracted medical provider for the Arizona Department of Corrections,
Rehabilitation and Reentry—based on Defendant’s alleged failures to treat Plaintiff right
eye pain and vision loss following an October 2024 right eye injury in order to reduce costs.
(Doc. 8.)
II. Reconsideration Standard
The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii,
42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396
(9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of an Order
absent a showing of manifest error or a showing of new facts or legal authority that could
not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).
Any motion for reconsideration must specifically identify the matters that were
overlooked or misapprehended by the Court. Id. If any new matters are being brought to
the Court’s attention for the first time, the movant must identify the reasons they were not
presented earlier, and any specific modifications being sought in the Court’s Order. Id.
No motion for reconsideration of an Order may repeat any oral or written argument made
in support of or in opposition to the motion that resulted in the Order. Id.
III. Analysis
In its Order denying Plaintiff’s Motion for Preliminary Injunction, the Court set
forth Plaintiff’s allegations concerning his October 22, 2024 right eye injury and
Defendant’s alleged failures to timely send Plaintiff to an ophthalmologist or approve
recommended treatment that allegedly could have restored Plaintiff’s lost vision. (See
Doc. 24 at 3−4.) The Court also set forth the relevant facts about Plaintiff’s offsite
ophthalmology visits as set forth in the declaration of NaphCare’s Director of Optometry,
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Dr. Tyrone Favis, O.D., and as supported by Plaintiff’s medical records, which Defendant
produced and Plaintiff did not materially dispute. (See id. at 5−8.)
Upon review of these facts, the Court concluded that Plaintiff was “not likely to
prevail on the merits of his claim based on allegations that he did not receive timely medical
care for his right eye injury due to NaphCare’s refusal to authorize proper treatment to
contain costs.” (Id. at 8.) The Court found that “the evidence does not show, as Plaintiff
contends, that any offsite medical provider refused to examine or provide treatment for
Plaintiff’s right eye because NaphCare refused to authorize such treatment based on cost
containment.” (Id.) The Court also found that Plaintiff failed to show a current risk of
irreparable harm absent injunctive relief because the evidence showed Defendant
repeatedly sent Plaintiff to offsite eye specialists and continued to do so. (Id. at 10.)
In his Motion for Reconsideration, Plaintiff argues that the Court failed to apply the
correct legal standards, specifically the Prison Litigation Reform Act’s (PLRA’s)
imposition of an additional requirement on prisoner litigants who seek preliminary
injunctive relief against prison officials, requiring that “any injunctive relief be narrowly
drawn and the least intrusive means necessary to correct the harm.” (Doc. 25 at 2−3.)
Plaintiff argues that he met this requirement because he spelled out the narrow relief that
was necessary to correct the alleged harm, which he claims was “to take Plaintiff
immediately to see an Oculoplastic Specialist for immediate[] evaluation and treatment in
this case.” (Id. at 7.)
Plaintiff is correct to the extent that, in addition to having to meet each of the Winter
factors required for obtaining preliminary injunctive relief, a prisoner seeking relief against
prison officials is subject to the PLRA, which requires that the requested 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).
The Court did not err, however, in failing to apply this standard. Instead, the Court did not
reach the question of whether the relief Plaintiff sought was narrowly drawn because it
found that Plaintiff had not made the required Winter showings—specifically, likelihood
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of success on the merits and irreparable harm—that would entitle him to relief in the first
instance. Winter, 555 U.S. at 20. Absent these showings, the Court did not err by failing
to address whether the relief Plaintiff sought was narrowly drawn.
Plaintiff also argues that “the Court was dec[ei]ved by the Defendant in their
showing that [Plaintiff’s] many [specialist] appointments [showed] Plaintiff was
adequately being treated specifically for his right injured eye.” (Doc. 25 at 3.) Plaintiff
argues that “all those outside ophthalmologist[s] were ‘only’ evaluations not in any form
of treatments to help Plaintiff’s vision.” (Id.) He goes on to argue that
in the private medical discussion[s] between him and these
many Ophthalmologist[s,] they all acknowledged that the[re]
was nothing that any of them could do to save Plaintiff’s vision,
but they all recommended that there was a great chance that
Plaintiff’s vision in his right eye could be restored by an
“Oculoplastic Specialist” who[] ha[s] the experience and
equipment [to] restor[e] Plaintiff’s vision, but the procedure is
very intense. . . .
[T]he Court err[ed] in failing to see in [Defendant’s R]esponse
any acknowledgement that an evaluation by an Oculoplastic
Specialist is warrant[ed] or not in helping Plaintiff in restoring
the vision in his right eye.
(Id. at 3−4.)
By this, Plaintiff appears to argue that, in support of his Motion, he presented
evidence of private conversations he had with each of the ophthalmologists who examined
him, and even though they said they could not do anything to restore the vision to his right
eye, each of them said that an oculoplastic specialist could likely provide this treatment.
Plaintiff also appears to argue that Defendant was aware that an oculoplastic specialist
could provide the necessary treatment to restore Plaintiff’s right eye vision, and they
deliberately failed to provide this care, ostensibly to save costs. (See id.)
As he did in his Reply to his Motion for Preliminary Injunction, Plaintiff once again
changes the nature of the relief he requested in his Motion and presents new facts and
arguments he did not previously present to the Court. (See Doc. 24 at 8−10 (discussing
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Plaintiff’s new arguments in his Reply).) As discussed, Plaintiff’s Motion was based on
Defendant’s purported refusals to authorize/pay for recommended treatments that several
offsite ophthalmologists told Plaintiff they could provide that would restore Plaintiff’s
vision in his right eye. (See Doc. 4 at 3−6.) But when the medical record evidence
Defendant produced in its Response did not support that any ophthalmologist
recommended/sought to perform any vision-saving treatments that NaphCare refused to
authorize, Plaintiff abandoned this argument. (See Doc. 24 at 8 (noting that Plaintiff made
no attempt to address the discrepancies between his allegations in his Motion and the
medical record evidence Defendant produced).) Instead, Plaintiff argued for the first time
that his ophthalmology appointments were ineffective because Defendant denied him the
“one treatment that was recommended by MD Sara Raafat Ghobraiel,” which was “to
schedule Plaintiff immediately to an ‘oculoplastic doctor’ due to Plaintiff suffering a
fracture to his right eye.” (Doc. 21 at 7.)2
Even though Plaintiff raised this argument for the first time in his Reply and therein
also materially altered the relief he sought from a request for a full medical evaluation by
an ophthalmologist to a referral to an oculoplastic specialist, the Court nonetheless
addressed Plaintiff’s contention that Defendant denied him this care. (See Doc. 24 at 10.)
Still, the Court found no evidence that Defendant ever received or denied a recommended
oculoplastic referral for Plaintiff. As discussed in the Court’s prior Order, the medical
record evidence confirms that, on April 30, 2025, Plaintiff saw Dr. Ghobraiel for
complaints of “stabbing pain” in his right eye, and Dr. Ghobraiel discussed referring
Plaintiff to an oculoplastic doctor for a possible right orbital fracture, but the evidence also
shows Dr. Ghobraiel made clear that “any intervention now will not return vision,” and
2 Based on publicly available information online, “[o]culoplastic and orbital
surgeons are ophthalmologists who completed additional fellowship training in the medical
and surgical management of a wide range of conditions affecting the structures that
surround the eye, including the eyelids, eye socket (orbit) and tear drainage system.”
https://www.mayoclinic.org/departments-centers/oculoplastic-and-orbital-
surgery/overview/ovc-20524322 (https://perma.cc/8FFC-C2SP).
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that the goal was “comfort care” for Plaintiff’s right eye and to maintain vision in the left
eye. (Id.; see Doc. 16-1 at 159.) The evidence also shows that Plaintiff declined any further
care at that visit and instead requested a second opinion. (See Doc. 16-1 at 159.) Although
his medical records show he saw other ophthalmologists both before and after this visit,
Plaintiff did not direct the Court to any evidence that Dr. Ghobraiel or any other provider
ever requested an oculoplastic referral and Defendant denied the request.
Plaintiff now argues that the Court erred by “not questioning why the Defendant did
not send Plaintiff to an Oculoplastic for [at] least an evaluation of his right eye injury” and
that this error was “an abuse of discretion.” (Doc. 25 at 4−5.) Plaintiff does not, however,
address the above evidence, which the Court discussed in its prior Order, showing he
declined any immediate treatment when Dr. Ghobraiel discussed this potential referral and
instead requested a second opinion. Plaintiff also does not identify any other evidence the
Court purportedly overlooked showing Defendant was aware of his need to see an
oculoplastic specialist and denied him this care.
To the extent Plaintiff now argues for the first time in his Motion for
Reconsideration that, in addition to Dr. Ghobraiel, every ophthalmologist he saw told him
that, although there was nothing they could do to save his vision, there was a “great chance”
an oculoplastic specialist would have the requisite experience and equipment to do so, this
assertion is squarely at odds with the only relevant medical record evidence before the
Court on the issue, which shows that, while Dr. Ghobraiel did discuss referring Plaintiff to
an oculoplastic specialist to address a possible orbital fracture, she clearly stated there was
no treatment that would restore his vision. In any event, Plaintiff did not previously make
this claim, either in his Motion for Preliminary Injunction or in his Reply to that Motion,
and he does not provide any reason he was unable to do so earlier that would merit
reconsideration of the Court’s prior Order on these facts. See LRCiv 7.2(g)(1).
Finally, although the Court acknowledged in its prior Order that, with additional
facts and evidence, Plaintiff may be able to show a past constitutional violation, the Court
explained that to be entitled to preliminary injunctive relief, Plaintiff “must demonstrate a
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present threat of irreparable injury, not a past injury.” (Doc. 24 at 10.) See Conn. v. Mass.,
282 U.S. 660, 674 (1931) (an injunction is only appropriate “to prevent existing or
presently threatened injuries”). The Court did not err in finding that, on the current record,
Plaintiff failed to make this showing. Accordingly, the Court will deny Plaintiff’s Motion
for Reconsideration.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as Plaintiff’s “Motion:
for Rehearing of the Court’s Decision Denying Plaintiff’s Motion for Preliminary
Injunction [] and for Emergency Evaluation and Treatment of Plaintiff’s Right Eye Injury
(Doc. 4) and for an Evidentiary Hearing and Appointment of Counsel for Plaintiff”
(Doc. 25), which the Court construes as a Motion for Reconsideration, and the Motion is
denied.
(2) All other matters must remain with the Magistrate Judge for disposition as
appropriate.
Dated this 13th day of October, 2026.
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