New v. Shelton M.D. et al

Filing 68

ORDER - Plaintiff's the Motion for Preliminary Injunction 18 isDENIED. Signed 7/29/2013 by Judge Michael H. Simon. (mja)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

EARL LAWRENCE NEW,
Case No. 2:12-cv-01726-SI
Plaintiff,
v.

ORDER

STEPHEN SHELTON, M.D., DAN
DEWSNUP, M.D., JO ELLIOTBLAESLEE, and A. HUGHES, R.N.,
Defendants.
SIMON, District Judge.
Plaintiff filed this action pursuant to 42 U.S.C.
November

8,

2012,

he

filed

an

amended

complaint

1983.

On

alleging

the

§

defendants showed a gross indifference to a serious medical need in
refusing to send him to Oregon Health Sciences University ("OHSU")
for a comprehensive liver transplant evaluation,
his Eighth Amendment rights.
a

pro

se

compelling

motion
the

1 - ORDER

for

Oregon

in violation of

On December 5, 2012, Plaintiff filed

preliminary
Department

injunction
of

seeking

Corrections

an

( "ODOC")

order
"to

transport the plaintiff to Oregon Health Sciences University (OHSU)
for evaluation for a liver transplant."

(#18.)

He alleged "OHSU

has provided documen[ta]tion that the plaintiff is a completely
eligible and meets all the criter[i]a of having said transplant
performed.

An evaluation needs to be performed by OHSU to confirm

that the plaintiff is eligible and has the proper meld scoring
liver count."

(Id.)

On March 11,

2013,

the Court granted the

parties Joint Motion for Order Staying Consideration of Plaintiff's
Motion for Preliminary Injunction (#59) pending a determination by
OHSU as to whether ODOC should send Plaintiff to OHSU for a fourday outpatient evaluation.

Oregon Health Sciences University has

made a determination, and the Motion for Preliminary Injunction is
now before the Court.
STANDARDS
"A preliminary injunction is an extraordinary remedy never
awarded as of right."

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008).

Rather, "courts must balance the competing

claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief."
quotation marks and citation omitted).
"should not be granted unless

968,

972

(1997)

(internal

A preliminary injunction

the movant,

carries the burden of persuasion."

I d.

by a

clear showing,

Mazurek v. Armstrong, 520 U.S.

(emphasis in original and citation omitted)

A

request for a mandatory injunction seeking relief well beyond the

2 - ORDER

status quo is disfavored and shall not be granted unless the facts

Stanley v.

and law clearly favor the moving party.

Univ.

of S.

Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994).
"A plaintiff seeking a preliminary injunction must establish
--

that he is likely to succeed on the merits,

that he is likely to

suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor,
is in the public interest."
Circuit

has

"glossed that

sliding

scale

approach

Winter,
standard

which

allows

and that an injunction

555 U.S.
by
a

at

adding

20.
that

plaintiff

to

The Ninth
there

is

obtain

a
an

injunction where he has only shown serious questions going to the
merits and a balance of hardships that tips sharply towards the
so long as the plaintiff also shows that there is

plaintiff .

a likelihood of irreparable injury and that the injunction is in
the public interest."
F.3d

540,

544

(9th

Developmental Serv. Network v. Douglas, 666
Cir.

2011)

(internal

quotation

marks

and

citations omitted).
The Prison Litigation Reform Act

("PLRA")

imposes additional

requirements when inmates seek a preliminary injunction against
prison officials.
Preliminary injunctive relief must be narrowly drawn,
extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least
intrusive means necessary to correct that harm.
The
court shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice
system caused by the preliminary relief and shall respect

3 - ORDER

the principles of comity set out in paragraph (1) (B) in
tailoring any preliminary relief.
18 U.S.C. § 3626(a) (2).

The Court's equitable jurisdiction is thus

restricted and the Court may not bind prison officials to do more
than the constitutional minimum.
State of California,

220 F.3d 987,

See

998

Gilmore

v.

People

of

the

(9th Cir. 2000).

DISCUSSION
This

case

involves

decisions

as

to

the medical

care

of a

plaintiff with end-stage liver disease arising from Hepatitis C and
cirrhosis,

who wants to be placed on the liver transplant list.

Plaintiff seeks an order requiring that the ODOC transport him to
OHSU for

a

four-day transplant evaluation,

alleging the ODOC' s

failure to do so has caused him to lose time and credit on the
transplant list for the days when his MELD score was 15. 1

(#67.)

For the reasons that follow, the Court finds Plaintiff has not made
a

clear

showing

that

the

facts

and

the

law

favor

granting

a

mandatory injunction that goes well beyond maintaining the status
quo.
Irreparable Harm

1

MELD scores are calculated based on a patient's creatinine,
total bilirubin, and INR lab values. (#37, Ex. 7 at 2.) Generally,
patients with liver failure are prioritized on the transplant list
according to their MELD scores; those having the highest MELD
scores being at the top of the transplant list.
(Id.) MELD scores
may change, and a patient's position on the transplant list will
vary according to their MELD score and the MELD score of others on
the list.
( Id.)
4 - ORDER

Plaintiff claims he has suffered irreparable injury based on
the fact his MELD score reached 15 during a hospitalization in
January 2013,

that a

score of 15 is one of the thresholds

for

consideration for the four-day transplant evaluation at OHSU, and
that his opportunity to receive credit for time on the transplant
list with a MELD of 15 is forever lost.

(#67.)

Factors other than

the MELD score, however, are also taken into consideration in the
eligibility determination for the four-day evaluation and,
fundamentally,

eligibility

for

a

four-day

evaluation

does

more
not

guarantee that a patient will be placed on the transplant list.
(#37,

Ex.

7,

at 3.)

Furthermore, MELD scores are variable and a

patient's place on the transplant list may change, not only with a
change in their own MELD score but with changes in the scores of
other patients on the list.

Therefore, Plaintiff's claim that he

has been denied time and credit on the transplant list that he
otherwise would have received had he been referred for a four-day
evaluation when his MELD score was 15 is speculative.
Likelihood of Success on the Merits

The record shows that Plaintiff's MELD scores have fluctuated,
that ODOC is monitoring Plaintiff's lab results, and that ODOC has
previously discussed
OHSU.

(#58,

at 3-4.)

Plaintiff's

candidacy

for

evaluation

with

The record also shows Plaintiff's medical

information was forwarded to the OHSU transplant team and received
on April

10,

2013.

5 - ORDER

( # 64,

Ex.

1. )

Based on

the

information

provided by ODOC,

the transplant team determined that,

transplant policy,

it was too early for a transplant evaluation.

(Id., Ex. 2.)

per its

Plaintiff contends that because his January 2013 lab

results were more favorable to receiving an evaluation the ODOC is
not acting in good faith by sending OHSU lab results from March
( # 6 4, Ex. 3. )

2013.

The Court notes, however,

that Plaintiff's

motion for preliminary injunction was filed when Plaintiff's MELD
score was less

favorable.

Furthermore,

ODOC physicians manage

referrals to OHSU based on the OHSU protocol.
its

determination

regarding

transplant

Plaintiff's most recent lab results,
These

facts

weigh against

finding

(#58.)

evaluation

OHSU made
based

on

according to its protocol.

that

Plaintiff is

likely to

prevail on the merits of his claims.
Conclusion
Plaintiff's

the Motion

for

Preliminary

Injunction

DENIED.
IT IS SO ORDERED.
DATED this 29th day of July, 2013.

United States District Judge

6 - ORDER

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