Lancellotti v. Bureau of Prisons
Filing
18
MEMORANDUM OPINION & ORDER: IT IS ORDERED that the Plaintiff's 5 MOTION for Preliminary Injunction and 7 MOTION for Immediate Injunctive Relief are DENIED. Signed by Judge Joseph M. Hood on 9/6/2011.(GLD)cc: COR, Michael Lancellotti, pro se
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 10-CV-344-JMH
MICHAEL STEPHEN LANCELLOTTI,
V.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
BUREAU OF PRISONS, et al.,
****
DEFENDANTS
****
****
****
INTRODUCTION
On September 29, 2010, while he was incarcerated at the
Federal Medical Center in Lexington, Kentucky (“FMC-Lexington”)1,
Plaintiff Michael Stephen Lancellotti (“Lancellotti”), filed this
action under 28 U.S.C. § 1331, pursuant to the doctrine announced
in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), naming as defendants the Federal Bureau of Prisons (“BOP”)
and
a
contract
physician,
Ali
H.
Mesiwala,
M.D.,
concerning
cervical spine surgery that he underwent on February 13, 2008.2
Lancellotti appears to be asserting a malpractice claim against BOP
contract physician, Dr. Mesiwala, and claims that the BOP has been
deliberately indifferent to his serious medical needs, in violation
of his Eighth Amendment right to be free from cruel and unusual
1
Lancellotti has since been transferred to the Federal
Correctional Institution in Terminal Island, California (“FCITerminal Island”).
2
Apparently, this surgery occurred at a hospital in San
Bernadino, California, prior to Lancellotti’s transfer to FMCLexington.
punishment, by failing to honor his request to be transferred to
Mayo Clinic in Rochester, Minnesota, for additional, reconstructive
surgery to correct the medical problems associated with the first
cervical spinal surgery performed by Dr. Mesiwala.
In his initial filing, Lancellotti requested injunctive relief
in the form of being transferred to Mayo Clinic in Rochester,
Minnesota, for what he characterizes as a “life saving operation to
my cervical spine.” (DE #2, page 1). Lancellotti has since amended
and supplemented his complaint to name additional defendants and to
request compensatory damages of $5 Million from each defendant for
malpractice and other wrongs suffered (DE #11).
This matter is before the court on Plaintiff’s motions for
injunctive relief (DE ##5, 7).
In these motions, Lancellotti
reiterates his request that the BOP be ordered to transfer him to
the Mayo Clinic in Rochester, Minnesota, for additional surgery to
correct the surgery to his cervical spine performed by Dr. Mesiwala
that did not yield the expected results. Additionally, Lancellotti
also requests that the BOP and the University of Kentucky Medical
Center (“UKMC”) be prohibited from performing any surgery on his
cervical spine.3
For the reasons explained below, Lancellotti is
not entitled to any of the injunctive relief he seeks.
3
In Lancellotti’s motion for injunctive relief filed on
November 15, 2010, he advises that he believes the BOP has
scheduled him for surgery at the UKMC on November 16, 2010. (DE
#5, page 1). He requests that this surgery be performed elsewhere.
2
DISCUSSION
Generally, the plaintiff bears the burden of establishing his
entitlement to a preliminary injunction.
A preliminary injunction
is an extraordinary remedy which should be granted only if the
movant carries his or her burden of proving that the circumstances
clearly demand it.
See Overstreet v. Lexington-Fayette Urban
County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).
“[T]he proof
required for the plaintiff to obtain a preliminary injunction is
much more stringent than the proof required to survive a summary
judgment motion.”
See also Leary v. Daeschner, 228 F.3d 729, 739
(6th Cir. 2000).
In addressing a request for a preliminary injunction, a court
should consider:
(1) the likelihood that the movant will succeed
on the merits; (2) whether the movant will suffer irreparable harm
without the injunction; (3) the probability that granting the
injunction will cause substantial harm to others; and (4) whether
the public interest will be advanced by issuing the injunction.
See Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d
393, 399 (6th Cir. 1997).
“These factors are not prerequisites,
but are factors that are to be balanced against each other.”
Overstreet, 305 F.3d at 573.
The failure to show a likelihood of
success on the merits is usually fatal.
Gonzales v. National Bd.
of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000).
3
a.
likelihood of prevailing on the merits
To satisfy the first criterion, by establishing a likelihood
of success on the merits, a plaintiff must show more than a mere
possibility of success.
Mason County Med. Ass'n v. Knebel, 563
F.2d 256, 261, n.4 (6th Cir. 1977).
The plaintiff must show a
“strong” or “substantial” likelihood of success. See Summit County
Democratic Cent. and Executive Comm. v. Blackwell, 388 F.3d 547,
550 (6th Cir. 2004).
At
this
juncture,
Lancellotti
likelihood of success on the merits.
has
not
demonstrated
a
He has provided the court
with no medical opinions that it is imperative or a matter of life
and death that he be transferred to the Mayo Clinic in Rochester,
Minnesota, for the additional, corrective surgery he believes he
needs.
Lancellotti’s own assessment as a lay person that the Mayo
Clinic in Rochester, Minnesota, is the only place he must go for
additional surgery is insufficient to demonstrate a likelihood of
success on the merits.
Consequently, for these reasons, the Court is unpersuaded that
Lancellotti has shown a “strong” or “substantial” likelihood of
success on the merits.
See Summit County Democratic Cent. and
Executive Comm. v. Blackwell, supra.
mere
possibility
of
success
is
To reiterate, a showing of a
insufficient
imposition of a preliminary injunction.
See
to
warrant
the
Mason County Med.
Ass'n v. Knebel, supra. In the balance, this factor weighs against
4
entry of a preliminary injunction.4
b.
irreparable injury
Next, the Court must consider whether the movant will suffer
irreparable harm without
injunctive relief.
Plaintiff would have
the court believe that he will suffer irreparable harm in the
absence of injunctive relief. However, this claim is unfounded, as
evidenced by the fact that subsequent to his request for injunctive
relief, he underwent reconstructive cervical surgery at the UKMC on
November 16, 2010, and was returned to FMC-Lexington on November
22, 2010.
Consequently, the Court concludes that plaintiff has not
established irreparable injury and has failed to establish that he
has no adequate remedy at law.
be
Plaintiff’s remedy, if any, would
an award of monetary damages if he were to prevail on the
merits of his medical malpractice and Bivens claims.
This factor
weighs against entry of a preliminary injunction.
c.
substantial harm to others
Plaintiff does not address this factor in his complaint.
Since the defendants have not been served with the complaint, they
have filed no answer or other response herein and thus have voiced
4
Additionally, plaintiff’s request for injunctive relief
appears to be moot. In Lancellotti’s “Motion To Add New Evidence”
filed on November 30, 2010, he advises that he underwent six hours
of reconstructive cervical surgery, presumably at the UKMC on
November 16, 2010, and that he was returned to the BOP on November
22, 2010.
5
no opinion on plaintiff’s request for injunctive relief.
The Court concludes that this factor is inconsequential to the
Court’s analysis of this matter and has no effect on the court’s
decision in this regard.
d.
public interest
Plaintiff does not address this factor in his complaint.
To
reiterate, since the defendants have not been served with the
complaint, they have filed no answer or other response herein and
thus have voiced no opinion on plaintiff’s request for injunctive
relief.
The Court concludes that this factor is also inconsequential
to the Court’s analysis of this matter and has no effect on the
court’s decision in this regard.
CONCLUSION
In view of the balancing test reiterated by the Sixth Circuit
in Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., supra, and
other applicable law, for all of the reasons stated above, the
Court concludes that two of the four factors of this test when
balanced, weigh in the defendants’ favor, with the third factor
(substantial harm to others) and fourth factor (public interest)
being inconsequential, and that plaintiff has not established that
he is entitled to a preliminary injunction.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's motions for
injunctive relief (DE ##5, 7) are DENIED.
6
This the 6th day of September, 2011.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?