Mandrell v. Physicians Health Partners

Filing 7

ORDER denying without prejudice 5 Letter by Judge Lewis T. Babcock on 12/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03245-GPG
PHILLIP S. MANDRELL,
Plaintiff,
v.
RICK RAEMISCH, Executive Director, Colorado Dept of Corrections, and
PHYSICIAN HEALTH PARTNERS,
Defendants.

ORDER DENYING REQUEST FOR PRELIMINARY INJUNCTIVE RELIEF

Plaintiff, Phillip S. Mandrell, is a Colorado Department of Corrections (CDOC)
prisoner who is incarcerated at the correctional facility in Sterling, Colorado. He has
filed, pro se, a Prisoner Complaint, pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983,
claiming that he is being denied adequate medical care, in violation of the Constitution.
Plaintiff alleges in the Complaint that in 2013, gastrointestinal surgeons and
physicians at Denver Health recommended that he undergo surgery to remove a colonic
stricture. However, Defendant Physicians Health Partners (PHP) refused to authorize
the surgery in June 2013 because Plaintiff was close to his mandatory release date of
August 21, 2013. (ECF No. 1, at 3-4). According to Mr. Mandrell, a clerical error made
by the state district court thereafter resulted in an amended mittimus which reflected the
addition of approximately 28 months to his sentence. Plaintiff continued to suffer pain
while the stricture in his colon worsened into a bowel blockage, necessitating the
performance of emergency surgery in July 2014. Plaintiff alleges that he made three
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trips to the emergency room before he finally received the recommended surgery at
Denver Health Hospital. Mr. Mandrell asserts that Defendant PHP, the entity
responsible for authorizing inmates to receive surgery and other medical procedures
outside the prison, acted with deliberate indifference to his serious medical needs by
refusing to approve the surgery recommended in 2013, causing him to suffer extreme
pain for another year and a worsening of his condition until it became life-threatening.
Plaintiff claims that the CDOC was negligent in failing to ensure that he received the
recommended surgery for over a year. In the Complaint, he seeks monetary, as well as
injunctive relief, because he has been experiencing recent gastrointestinal symptoms
similar to those he had before the surgery, but has not been referred to Denver Health
for follow up treatment.
On December 3, 2014, the Court entered an Order Directing Plaintiff to File an
Amended Complaint to allege additional facts sufficient to hold Defendants Rick
Raemisch and PSP liable under § 1983.
Mr. Mandrell has now filed a Letter with the Court (ECF No. 5) in which he states
that he was advised by medical providers at Denver Health Hospital in a post-operative
appointment that if he continued to have abdominal pain, bleeding or trouble with bowel
movements he should return to Denver Health Hospital. He further states that for the
past several weeks he has experienced bleeding and pain when he attempts bowel
movements. Plaintiff notified medical care providers at the prison that he needs to be
seen by doctors at Denver Health Hospital. On November 28, 2014, an unidentified
nurse gave Plaintiff a laxative and told him that he could see the physicians’ assistant
the following week. Mr. Mandrell states that “d[octors] have told [him] in the past that a
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rupture or treat within the colon would cause death very soon.” (Id. at 3).
The Court construes Mr. Mandrell’s filings liberally because he is not represented
by an attorney. See Haines, 404 U.S. at 520-21; Hall, 935 F.2d at 1110. However, the
Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, the Court construes the allegations in the Letter liberally as a
motion for preliminary injunctive relief and will deny the motion, without prejudice, with
leave to refile.
A temporary restraining order or preliminary injunction is an “extraordinary
remedy”, and, therefore, “the right to relief must be clear and unequivocal.” Schrier v.
Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting SCFC ILC, Inc. v. Visa
USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)). To obtain a preliminary injunction,
the party seeking the injunction must demonstrate four factors:
(1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is denied; (3)
the threatened injury to the movant outweighs the injury to the other party
under the preliminary injunction; and (4) the injunction is not adverse to
the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001). “To constitute irreparable harm,
an injury must be certain, great, actual ‘and not theoretical.’” Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1189 (10th Cir. 2003); Fed.R.Civ.P. 65(b).
In addition, the movant must establish “‘a relationship between the injury claimed
in the party's motion and the conduct asserted in the complaint.’” Little v. Jones
607 F.3d 1245, 1251 (10th Cir. 2010) (quoting Devose v. Herrington, 42 F.3d 470, 471
(8th Cir.1994)). A mandatory preliminary injunction—one which requires the nonmoving
party to take affirmative action—is generally disfavored. Att'y Gen. of Okla. v. Tyson
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Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). Before a court may grant such relief,
the movant must “make a heightened showing of the [ ] four factors.” Id.
In this case, Mr. Mandrell seeks, in essence, preliminary injunctive relief against
unspecified medical care providers at Sterling Correctional Facility, who are not named
as Defendants in the Complaint. The allegations in the Letter do not directly implicate
CDOC Director Raemisch or the PSP. Accordingly, the request for preliminary
injunctive relief will be denied, without prejudice. If Mr. Mandrell intends to seek relief
against medical care providers at Sterling, he must first amend the Complaint to include
additional claims against those individuals.
The Court has ordered Mr. Mandrell file an amended complaint on or before
January 3, 2015. The amended complaint should include any additional claims against
the medical providers at Sterling, if Plaintiff intends to seek judicial relief against those
individuals for the denial of adequate medical care. Mr. Mandrell is advised that any
future request for preliminary injunctive relief should be filed as a motion, meet the
requirements of Fed. R. Civ. P. 65, and must seek relief against persons who are
named Defendants in this action. Accordingly, it is
ORDERED that the Letter (ECF No. 5), which the Court has construed liberally
as a request for preliminary injunctive relief, is DENIED without prejudice. It is
FURTHER ORDERED that Mr. Mandrell shall file an amended complaint, in
compliance with the December 3, 2014 Order, and with this Order (to the extent he
intends to seek judicial relief against individuals not already named as Defendants in
this action) within thirty (30) days of the date of this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Prisoner
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Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to file an amended complaint that
complies with this order within the time allowed, the Court may dismiss some or all of
this action without further notice for the reasons discussed above. It is
DATED December 4, 2014, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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