Hestdalen v. Corrizon Corrections Healthcare et al

Filing 38

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for an emergency injunction is DENIED. [ECFNo. 4 ]. IT IS FURTHER ORDERED plaintiffs motion for reconsideration of the Order of Partial Dismissal is DENIED. [ECF No. 21 ] IT IS FU RTHER ORDERED that plaintiffs motion for an injunction is DENIED as moot. [ECF No. 22 ] IT IS FURTHER ORDERED that plaintiffs motion to remove and enjoin defendant J. Cofield, which the Court construes as a motion to correct the docket, is GRANTED . [ECF No. 23 ] IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint, pursuant to the service agreement the Court maintains with Corizon, as to J. Cofield in his individual capacity. IT IS FURTHER O RDERED that plaintiffs motion to supplement the complaint with his complete record of MDOC's administrative remedies is GRANTED. [ECF No. 36 ] IT IS FURTHER ORDERED that defendants' motion to file a document under seal is GRANTED. [ECF No. 18 ] The Court notes that defendants have already filed under seal the documents at issue. A separate Case Management Order will issue along with this Memorandum and Order. Signed by District Judge John A. Ross on 11/28/18. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DANNY D. HESTDALEN,
Plaintiff,
v.
CORIZON CORRECTIONS
HEALTHCARE, et al.,
Defendants.

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No. 2:18-CV-39-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the following motions of pro se plaintiff Danny D.
Hestdalen: (1) motion for an emergency injunction; (2) motion to reconsider order of partial
dismissal; (3) motion for an injunction; (4) motion to remove and enjoin a defendant, which the
Court construes as a motion to correct the record; and (5) motion to supplement the complaint
with documents from plaintiffs administrative remedies file. For the following reasons, the
Court will deny motions (1) through (3), and grant motions (4) and (5).
Background

Plaintiff, an inmate at Moberly Correctional Center ("MCC"), was born with hereditary
bilateral sensorineural hearing loss, and requires the use of bilateral hearing aids. Plaintiff brings
this action under 42 U.S.C. § 1983, alleging prison and medical staff at MCC have been
deliberately indifferent to his serious medical need. Specifically, plaintiff alleges defendants
have denied him two hearing aids that work for his particular hearing loss. In addition, plaintiff
states that defendants have denied him access to an otolaryngologist ("ENT") to evaluate his
Eustachian tube dysfunction.

Discussion
1.

Motion for an Emergency Injunction

The Court will construe plaintiffs motion for an emergency injunction as a motion for a
temporary restraining order.

Rule 65 of the Federal Rules of Civil Procedure governs the

issuance of temporary restraining orders ("TRO") and preliminary injunctions. In deciding a
TRO or preliminary injunction, courts consider: (1) the probability of success on the merits; (2)
the threat of irreparable harm to the movant; (3) the balance between this harm and the injury
that granting the injunction will inflict on other interested parties; and (4) whether the issuance of
an injunction is in the public interest. See Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981) (en bane).
The Eighth Circuit has held that the "two most critical factors for the district court to
consider" are (1) the probability of success on the merits, and (2) whether the plaintiff will suffer
irreparable harm if an injunction is not granted. Chicago Stadium Corp. v. Scallen, 530 F.2d
204, 206 (8th Cir. 1976). The burden of proof rests on the movant, and "in the prison context, a
request for injunctive relief must always be viewed with great caution because judicial restraint
is especially called for in dealing with the complex and intractable problems of prison
administration." Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995) (internal quotations omitted).
Because the Court finds that plaintiff has not shown he will suffer irreparable harm if an
emergency injunction is not granted, and because the Court finds this determination dispositive
of the motion, the Court will address only factors (I) and (2). See Watkins, Inc. v. Lewis, 346
F.3d 841, 844 (8th Cir. 2003) ("Failure to show irreparable harm is an independently sufficient
ground upon which to deny a preliminary injunction.").

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(a)

Success on the Merits

Factor one, the likelihood of success on the merits, requires the movant to find support
for his position in the governing law. See, e.g., Baker Elec. Co-op., Inc. v. Chaske, 28 F .3d
1466, 1473-74 (8th Cir. 1994).

The Court is not deciding whether movant will ultimately win,

but rather whether his position is legally supported.

See Glenwood Bridge Inc. v. City of

Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991).
A plaintiff suing under§ 1983 must show defendants were deliberately indifferent to his
serious medical needs. Plaintiff has complained to defendants of his Eustachian tube dysfunction
in his left ear since January 2013. Plaintiffs medical journal shows that he has sought a referral
to an ENT on at least four occasions. When the request was finally approved, through the
recommendation of an outside audiologist, plaintiff saw Dr. Thompson. However, because MCC
did not send all plaintiffs hearing test results to Dr. Thompson, he conducted a cursory
examination of plaintiffs ear but had to reschedule the appointment until after he received
plaintiffs medical records from MCC.
When the nurse returned, she stated that she could not get ahold of anyone at
MCC's medical clinic and was unable to obtain the hearing tests plaintiff
informed them of, thus plaintiff will need to be rescheduled to continue the
evaluation when they have all the information. She also stated that Dr. Thompson
was irritated because Corizon was wasting his time by not including all the
information necessary to perform his evaluation. Officer Lester, [plaintiffs
transport officer], had to repeat what the nurse was saying as plaintiff was unable
to understand all that she said.
Plaintiffs appointment with Dr. Thompson has not been rescheduled.
Plaintiffs 87-page complaint details his :frustrating and complex dealings with prison and
medical staff at MCC in his attempt to obtain two hearing aids that work for his particular
hearing loss. The record demonstrates also that plaintiff was denied three separate referrals to an
ENT, and only saw an ENT after an outside audiologist referred him. He has alleged a serious
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medical need that defendants seem to be systematically disregarding. At this point in the case,
plaintiff has presented a sufficiently strong case of deliberate indifference to a serious medical
need that the likelihood of success factor rests in his favor.
(b)

Irreparable Harm

The second Dataphase factor is the threat of irreparable harm to the movant absent the
injunction.

If movant fails to sustain his burden in showing irreparable harm absent a

preliminary injunction, a denial of the injunctive request is warranted. See Adam-Mellang v.
Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996). Possible or speculative harm is not

enough. Rather, the party seeking the injunctive relief must show a significant risk of harm
exists. See Johnson v. Bd. of Police Comm 'rs, 351 F. Supp. 2d 929, 945 (E.D. Mo. 2004). "To
succeed in demonstrating a threat of irreparable harm, a party must show that the harm is certain
and great and of such imminence that there is a clear and present need for equitable relief."
S.J. W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 778 (8th Cir. 2012).

Plaintiff motion for an emergency injunction seeks a referral immediately to an ENT
specialist. He states the referral is necessary for an "immediate exploratory evaluation including
an MRI of plaintiff's ETD issue is in order to arrest further growth and damage if there is, in fact
an acoustic neuroma [tumor] present."
Based on plaintiff's reply in support of his motion for an emergency injunction, plaintiff
is fearful that a tumor might be causing his symptoms. He states this fear is consistent with an
article from a medical journal he was given by Dr. Aguilera. Plaintiff states that he will suffer
irreparable harm if an emergency injunction is not issued, because either he already has a tumor
in his ear or if his Eustachian tube dysfunction continues to go untreated he might develop
tumors in his inner ear.

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Plaintiff has been routinely seen by doctors, however, and no doctor has opined that
plaintiffs medical problem is a tumor. Dr. Stamps at MCC has ruled out the possibility of a
tumor. Based on the current record, the Court has no evidence that plaintiff will suffer any
irreparable harm if an emergency injunction is not issued.

The Court has only plaintiffs

speculation as to his potential harm, based on his current symptomatology and a medical journal
article. The Court finds plaintiff has failed to allege an irreparable harm that "is certain and great
and of such imminence" that there is a present need for equitable relief. S.J. W, 696 F.3d at 778.
Because plaintiff cannot demonstrate irreparable harm, the Court will deny his motion for an
emergency injunction.
2.

Motion for an Injunction

Plaintiff has filed a separate motion for an injunction, asking the Court to allow him
access to an ENT specialist experienced in diagnosing and treating a person with an Eustachian
tube dysfunction. Plaintiffs complaint already seeks this relief. Specifically, paragraph VII. l of
the complaint states that for relief plaintiff asks the Court to "Compel Corizonhealth/MDOC to
[p ]rovide an ENT specialist to treat Eustachian tube dysfunction as stated in the Emergency
Injunction Request." See ECF No. 1 at 85. Because this form of injunctive relief has already
been sought through the pending complaint, and because the Court is denying plaintiffs pending
motion for an emergency injunction, the Court will deny as moot plaintiffs separate motion for
an injunction.
3.

Motion for Reconsideration of Partial Dismissal

Plaintiff has filed a motion to reconsider the Court's partial dismissal without prejudice
of defendants Kerry L. Witty, Ralf Sulke, Thomas Bredeman, Corizon LLC, Kathy Barton,
MDOC, MCC, Dean Minor, H. Townsend, and J. Allen. These defendants were dismissed on

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initial review under 28 U.S.C. § 1915(e). See ECF Nos. 9 and 10. Plaintiff has not pointed to
any mistake, inadvertence, or newly discovered evidence to support his motion. Rather, plaintiff
simply argues that his complaint sufficiently stated a claim against these individuals (many of
which sound in respondeat superior) and institutions. After careful review, the Court will deny
plaintiffs motion to reconsider its order of partial dismissal.
4.

Motion To Remove and Enjoin Defendant

In plaintiffs motion to remove and enjoin defendant, he asks the Court to correct the
docket to reflect that defendant J. Cofield is employed by Corizon, not MDOC. Originally,
plaintiff had thought defendant J. Cofield was employed by MDOC, but further information
revealed that defendant J. Cofield was employed by Corizon. The Court will grant plaintiffs
motion, and order the Clerk of Court to issue process or cause process to issue on J. Cofield
pursuant to the waiver of service agreement the Court maintains with Corizon.
5.

Motion to Supplement the Complaint

Finally, plaintiff has filed recently a motion to supplement the complaint with his current
and up-to-date files regarding his pursuit of administrative remedies through MCC. The Court
will grant the motion under Federal Rule of Civil Procedure 15(d). Because the supplement does
not alter the allegations contained in the complaint, and merely provides a declaration of plaintiff
and additional documentation, the Court will not order defendants to file any answer to the
supplemental materials.
Accordingly~

IT IS HEREBY ORDERED that plaintiffs motion for an emergency injunction is
DENIED. [ECFNo. 4]

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IT IS FURTHER ORDERED plaintiffs motion for reconsideration of the Order of
Partial Dismissal is DENIED. [ECF No. 21]
IT IS FURTHER ORDERED that plaintiffs motion for an injunction is DENIED as
moot. [ECF No. 22]
IT IS FURTHER ORDERED that plaintiffs motion to remove and enjoin defendant J.
Cofield, which the Court construes as a motion to correct the docket, is GRANTED. [ECF No.
23]

IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint, pursuant to the service agreement the Court maintains with Corizon, as
to J. Cofield in his individual capacity.
IT IS FURTHER ORDERED that plaintiffs motion to supplement the complaint with
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his complete record ofMDOC's administrative remedies is GRANTED. [ECF No. 36]
IT IS FURTHER ORDERED that defendants' motion to file a document under seal is
GRANTED. [ECF No. 18] The Court notes that defendants have already filed under seal the
documents at issue.
A separate Case Management Order will issue along with this Memorandum and Order.
Dated this 28th day ofNovember, 2018.

.ROSS
D STATES DISTRICT JUDGE

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