Lambros v. English et al

Filing 15

MEMORANDUM AND ORDER: The court orders the plaintiff to come forward with evidence, proffers and arguments to show cause why his motion for mandamus relief should not be promptly denied for failure to meet the required elements of proof. The plaintif f shall respond no later than August 25, 2017, the defendant's response is due two weeks later, September 8, 2017, and the plaintiff's reply is due ten days later September 18, 2017. See order for further details. Signed by U.S. District Senior Judge Sam A. Crow on 8/11/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN GREGORY LAMBROS,
Plaintiff,
vs.

Case No. 17-3105-SAC-DJW

NICOLE ENGLISH, Warden,
USP-Leavenworth,
Defendant.
MEMORANDUM AND ORDER
The case comes before the court on the plaintiff John Gregory
Lambros’ motion for mandamus relief under 28 U.S.C. § 1361. ECF# 7. Mr.
Lambros originally filed a pro se petition for writ of mandamus and then filed
separate motions for a temporary restraining order and preliminary
injunction upon the allegation that the Bureau of Prisons (“BOP”) planned to
transfer him to another facility causing a disruption in his prescribed cancer
treatment. ECF## 1 and 5. The court found the pro se motions to be moot
based on subsequent medical treatment given to Mr. Lambros and based on
a subsequent mandamus motion filed by counsel for Mr. Lambros. ECF# 9.
In the pending mandamus motion, (ECF# 7), it is alleged the defendant
Warden Nicole English has refused to agree that following his parole
revocation hearing in El Reno, Oklahoma, Mr. Lambros will be returned to
the United States Penitentiary in Leavenworth, Kansas (“USP Leavenworth”)
“so that he [can] . . . continue under his doctor’s care and attend his other
1

scheduled screenings.” Id. at p. 2. The plaintiff characterizes the central
issue of his motion to be whether the BOP’s refusal to transfer him back to
USP Leavenworth after the revocation hearing “constitute[s] an intentional
interference with prescribed medical treatment?” Id. at p. 3. As for relief, the
plaintiff first asks the court to order his transfer back to USP Leavenworth
following his revocation hearing for expedited briefing and hearing of his
current motion. Id.
Warden English responds raising challenges to standing, the
failure to exhaust administrative remedies, the unavailability of relief under
the Mandamus Act, and the failure to allege a prospective constitutional
violation. The Warden attaches the declaration of Jason Clark, M.D., the
medical officer for USP Leavenworth who is aware of this case and has
reviewed the pertinent medical records on Mr. Lambros. ECF #11. Mr.
Lambros has filed his reply which fails to dispute any of Dr. Clark’s stated
opinions and fails to provide any evidence to support Mr. Lambros’ argument
“that transferring him away from his treating physician will result in the
interruption of his currently prescribed treatment, and that such an
interruption constitutes a violation of the Eighth Amendment.” ECF# 12.
The declaration of Dr. Clark states in pertinent part:
4. Plaintiff was diagnosed with colon cancer in November 2016. He was
evaluated by Dr. Bruce Gehrke, a general surgeon, who recommend
(sic) Plaintiff see a colorectal surgeon based on the complexity of
Plaintiff’s surgery.
5. On December 13, 2016, Plaintiff was evaluated by Dr. Benyamine
Mizrahi, a colorectal surgeon, who recommended Plaintiff undergo a
2

robotic low anterior resection. This operation was performed on
December 29, 2016.
6. On January 24, 2017, Plaintiff was seen by Dr. Mizrahi for a followup evaluation. At this time, it was determined Plaintiff did not need
chemotherapy or radiation. Dr. Mizrahi recommended continued
surveillance and follow-up in three (3) months.
7. On April 25, 2017, Plaintiff was seen by Dr. Mizrahi for a follow-up
in three months. He recommended continued surveillance and a flex
sigmoidoscopy performed in two (2) months.
8. Plaintiff underwent the flex sigmoidoscopy on June 27, 2017. Dr.
Mizrahi recommended continued surveillance and a follow-up in three
(3) months.
9. Plaintiff’s cancer is currently in remission. He is currently
undergoing follow-up visits to ensure the cancer has not returned. He
will need a blood test (CEA) and flexible sigmoidoscopy every three
months for the first year of remission.
10. Plaintiff was transferred to the Federal Transfer Center in
Oklahoma City, Oklahoma on June 29, 2017.
....
21. The BOP regularly provides continuity of care upon inmate
transfers. Such transfers do not cause a significant interruption in
treatment.
22. All BOP facilities, particularly MRC facilities, have experience
identifying qualified physicians in the public who contract with the BOP
to provide their services.
23. On June 22, 2017, I completed a re-designation referral request
for Plaintiff based on his increase in care level. This request was
approved on June 23, 2017, pending his United States Parole
Commission hearing.
24. In my clinical opinion, Plaintiff’s current medical conditions do not
preclude him from transfer to another BOP facility if necessary.
ECF# 11-1. As evidenced by this declaration, the plaintiff’s current medical
condition is that he is at least six months past his surgery, he has been
examined three times during this period, and his cancer currently remains in
remission. As part of his current prescribed medical treatment for this
condition, the plaintiff is to have at least two more follow-up visits at three-

3

month intervals to check on the cancer’s return. These follow-up visits will
include a blood test (CEA) and a flexible sigmoidoscopy.
On August 4, 2017, the defendant filed as a supplement to its
response a declaration of Tess Moyer, a BOP attorney whose duties include
providing litigation assistance to the United States Attorney’s office on USP
Leavenworth issues. ECF# 14. Ms. Meyer declares that the BOP inquired of
Colorectal Surgical Associates, specifically Dr. Ben Mizrahi, to submit a
document on the treatment of the plaintiff. The document signed by Dr.
Mizrahi is entitled “Standard of Care Rectosigmoid Cancer Follow up” and
describes the visits and tests prescribed for the plaintiff for the first two
years, for the third and fourth years, and for the fifth year. With respect to
the first two years, Dr. Mizrahi states in part that every three months—
“office visit and carcinoembryonic antigen laboratory results (CEA);” that
every six months—“office visit with a Flexible Sigmoidoscopy;” that at one
year—“full colonoscopy in ambulatory surgical center.” ECF# 14-1, p. 3. He
further conditions that, “Imaging will be done based on exam findings or
elevation in” CEA. Id. Finally, he ends his written document with the
following: “Any qualified physician can perform the Standard of care follow
up treatment; however, it would best by a Colorectal Surgeon.” Id.
Without prejudice to Warden English’s arguments on standing
and exhaustion of administrative, the court takes up first whether the
plaintiff is able to establish the required elements for mandamus relief. To be
4

eligible for relief under the Mandamus Act, the plaintiff must establish: “(1)
that he has a clear right to relief, (2) that the respondent’s duty to perform
the act in question is plainly defined and peremptory, and (3) that he has no
other adequate remedy.” Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir.
2005) (citation omitted). “If the duty is ministerial, clearly defined and
peremptory, mandamus is appropriate.” Id. (internal quotation marks and
citation omitted). Warden English contends that the plaintiff has no
constitutional right to be placed in a particular correctional facility and that
the BOP has broad discretion in designating the facilities where a federal
prisoner will be confined. Moreover, the court lacks authority to order the
BOP to perform a discretionary duty, and the plaintiff fails to show he is
lacking another adequate remedy. In reply, the plaintiff distinguishes his
Eighth Amendment claim as resting on the right to follow-up appointments
done by his current doctor and as not resting on any claim to have his choice
of institutions. Specifically, the plaintiff maintains the defendant has a plainly
defined duty to refrain from violating his Eighth Amendment rights by
“transferring him away from his treating physician” which would interrupt his
treatment. ECF# 12, p. 8. In this regard, the Tenth Circuit has allowed
mandamus relief compelling medical care for conditions in the first instance,
but it has circumscribed such relief so as to not override matters coming
within the discretion and professional medical judgment of prison medical
officials. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235 (10th Cir.
5

2005). The open part of this issue is whether the plaintiff has an actionable
Eighth Amendment claim to see a particular treating physician for follow-up
visits after cancer surgery or whether this is matter falling within the
discretion and professional medical judgment of prison officials.
Warden English also argues the plaintiff cannot establish a claim
of deliberate indifference in transferring the plaintiff from a correctional
facility near her treating physician to a correctional facility that may be more
aligned with his medical needs. The defendant points out that all BOP
facilities have experience identifying and contracting with qualified
physicians. For that matter, Dr. Mizrahi is not the only physician specializing
in colorectal surgery. After the successful surgery, the plaintiff is only
receiving follow-up appointments, as his cancer is in remission and he is
receiving no chemotherapy or radiation. As evidenced by Dr. Mizrahi’s letter,
the plaintiff’s current care is not of the kind or nature which requires such
specialization, but it would be best. Moreover, Dr. Clark’s medical opinion is
that the plaintiff’s current medical conditions do not preclude him from
transfer to another BOP facility if necessary.
The plaintiff maintains he still has an Eighth Amendment claim
because he has no assurance that the BOP will provide or has concrete plans
for providing the prescribed follow-up treatment. In effect, the plaintiff
wants to make an Eighth Amendment claim out of the adequacy of the
defendant planning for the medical treatment before the decision to transfer
6

has been made. There is no medical evidence of record indicating the
seriousness of the plaintiff’s condition necessitates such planning. The Eighth
Amendment guarantees a prisoner the right to be free from cruel and
unusual punishment. “[D]eliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . .
proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 91, 104
(1976). The Tenth Circuit recently summarized the relevant law:
“Prison officials violate the Eighth Amendment's prohibition against
cruel and unusual punishment when they act deliberately and
indifferently to serious medical needs of prisoners in their custody.”
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). “Deliberate
indifference has both an objective and subjective component.” Id. To
meet the objective component, “[t]he medical need must be
sufficiently serious.” Id. A medical need is sufficiently serious “if the
condition ‘has been diagnosed by a physician as mandating treatment
or is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.’” Al–Turki v. Robinson, 762 F.3d
1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241
F.3d 1272, 1276 (10th Cir. 2001)). To satisfy the subjective
component, the plaintiff must show that the defendant knew that the
plaintiff “faced a substantial risk of harm and disregarded that risk, ‘by
failing to take reasonable measures to abate it.’” Hunt, 199 F.3d at
1224 (quoting Farmer, 511 U.S. at 847, 114 S.Ct. 1970). The
substantial-harm requirement “may be satisfied by lifelong handicap,
permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d
946, 950 (10th Cir. 2001).
The Estate of Lockett by and through Lockett v. Fallin, 841 F.3d 1098, 1112
(10th Cir. 2016), cert. denied, 85 USLW 3596 (Jun. 26, 2017). Based on the
follow-up standard of care prescribed by Dr. Mizrahi, the medical need of the
plaintiff meets the objective test of seriousness. Dr. Mizrahi’s letter also
establishes that for purposes of the subjective component, the plaintiff’s
7

follow-up treatment need not be done by Dr. Mizrahi only, but that any
qualified physician could perform it with a preference for “a” colorectal
surgeon. ECF# 14-1, p. 3. The plaintiff’s desire for “treatment by a
specialist is, . . ., insufficient to establish a constitutional violation.” Ledoux
v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992); see Duffield v. Jackson,
545 F.3d 1234, 1239 (10th Cir. 2008). It is true that “intentional
interference with prescribed treatment may constitute deliberate
indifference.” Id. There are no substantive offers of proof or evidence that
the prescribed medical treatment here is that for all of the follow-up visits
the plaintiff must be seen and evaluated by only Dr. Mizrahi or by only a
colorectal surgeon. Instead, the standard of care letter produced by Dr.
Mizrahi shows otherwise.
In sum, the medical evidence of record presently is
uncontroverted in showing no subjective component to the plaintiff’s Eighth
Amendment claim. The medical opinion of record is that the BOP can
transfer the plaintiff to another facility and can provide the standard of care
prescribed for the plaintiff. The plaintiff’s motion asks the court to speculate
that the BOP will not be able to meet this standard of care due to the
possibility of delay associated with any transfer and due to not making
concrete plans for such treatment in advance of any transfer. Not only are
these arguments mere speculation, but the plaintiff is without any
compelling evidence that he is without an adequate remedy in the event of a
8

delay. Indeed, there is no medical evidence of record showing that the
plaintiff is facing a substantial risk of harm should there be delay of any
length. Moreover, there is nothing of record to show that the defendant has
failed or will fail to take reasonable measures necessary to abate any
substantial risk of harm.
On the present state of the evidentiary record, the court declines
to order an immediate hearing on the plaintiff’s motion and further declines
to order any transfer based on the need for a hearing. Instead, the court
orders the plaintiff to come forward with evidence, proffers and arguments
to show cause why his motion for mandamus relief should not be promptly
denied for failure to meet the required elements of proof. The plaintiff shall
respond no later than August 25, 2017, the defendant’s response is due two
weeks later, September 8, 2017, and the plaintiff’s reply is due ten days
later September 18, 2017.
IT IS SO ORDERED.
Dated this 11th day of August, 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

9