McMain v. Peters et al

Filing 17

ORDER: Based on the foregoing, plaintiff's motion for a preliminaryinjunction (#13) is DENIED. Signed on 12/3/13 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GORDON McMAIN,

2:13-cv-01632-HU
Plaintiff,

ORDER

v.
COLLETTE PETERS, et al.,
Defendants.
MOSMAN, Judge
Plaintiff, an inmate at Snake River Correctional Institution
(SRCI), brings this civil rights action pursuant to 42 U.S.C.
§ 1983.

Currently before the court is plaintiff's motion for

preliminary injunction.
BACKGROUND
Plaintiff alleges that defendants have denied him adequate
medical treatment for back pain and low testosterone.

In a filing

captioned “Status of Case,” plaintiff informs the court that he now
has been scheduled for back surgery.

However, he seeks injunctive

relief

staff"

to

1 - ORDER

compel

"ODOC

and

its

to

treat

him

with

"Testosterone Cyplianate to a males average for his age (650
ng/ml)."
In his Complaint and “Status of Case,” plaintiff makes the
following allegations:
(1) prior to being taken into the custody of the Oregon
Department of Corrections (ODOC) he was receiving
testosterone injections;
(2) Dr. Elliot-Blakeslee, a physician at SRCI, told
plaintiff that the ODOC does not provide testosterone
injections unless a prisoner suffers from Klinefelter’s
Disease;
(3) based upon blood tests, Dr. Elliot-Blakeslee
concluded
that
plaintiff
does
not
suffer
from
Klinefelter’s Disease;
(4) plaintiff believes the test results support a
diagnosis of Klinefelter’s Disease and, in any event,
more definitive tests are available;
(5) Dr. Kenneth Little, the physician who ordered
plaintiff’s back surgery, made the notation in
plaintiff’s medical chart “Endocrine work up and
treatment as indicated;” and
(6) there is a correlation between low testosterone and
arthritis and other conditions of which plaintiff
suffers.
Additionally, plaintiff alleges that Dr. Clarke opined that
low testosterone may be contributing to plaintiff’s mood disorder,
and that he would benefit from testosterone injections.

However,

the Therapeutic Level of Care (TLC) Committee concluded otherwise,
noting that testosterone is of questionable value in treating a
generalized anxiety disorder and is not medically necessary.
///
2 - ORDER

DISCUSSION
I.

Personal Jurisdiction over Defendants.
"A federal court may issue an injunction if it has personal

jurisdiction over the parties and subject matter jurisdiction over
the claim; it may not attempt to determine the rights of persons
not before the court."
1985).

Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.

An injunction only binds "the parties to the action, their

officers agents, servants, employees, and those persons in active
concert

or

participation

with

them."

Id.;

Fed.

R.

Civ.

P.

65(d)(2).
This action was filed on or about September 10, 2013.

On

October 31, 2013, a Notice of Lawsuit and Request for Waiver of
Service of Summons was sent to defendants.

Defendants waiver of

service is due November 31, 2013, after which time defendants shall
have 21 days in which to file their answer.

See Request for Waiver

of Service (#9); Fed. R. Civ. P. 12(a)(1)(A)(I).

Consequently,

this court does not yet have personal jurisdiction over the
defendants.
II.

Propriety of Injunctive Relief.
A plaintiff seeking a preliminary injunction must establish

that (1) he is likely to succeed on the merits; (2) he is likely to
suffer irreparable harm in the absence of preliminary relief; (3)
the balance of equities tip in his favor; and (4) an injunction is
in the public interest. Winter v. Natural Res. Def. Council, Inc.,
3 - ORDER

555 U.S. 7, 20 (2008); Assoc. des Eleveurs de Canards et d’oies du
Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013).

Under the

Ninth Circuit’s sliding scale approach, injunctive relief may be
granted when there are serious questions going to the merits and
the hardship balance tips sharply toward the plaintiff, provided
that the other two elements of the test are also met.

Assoc. des

Eleveurs de Canards et d’oies du Quebec, 729 F.3d at 944; Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.
2011).
Where, as here, plaintiff seeks a mandatory injunction which
goes beyond maintaining the status quo, he must demonstrate that
the facts and law clearly favor an injunction.

Working Wash. v.

Cent. Puget Sound Reg’l. Transit, 2013 WL 3487561 (9th Cir. July 12,
2013) (unpublished); Stanley v. Univ. of S. Calif., 13 F.3d 1313,
1319-20 (9th Cir. 1994).
In order to prevail on an Eighth Amendment claim for the
denial

of

adequate

medical

care,

plaintiff

must

prove

that

defendants were deliberately indifferent to his serious medical
needs.

Estelle v. Gamble, 429 U.S. 97, 104-105 (1976); Lopez v.

Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

In light of the TLC

Committee’s

injection

conclusion

that

testosterone

are

not

medically necessary, plaintiff must prove that the denial of
testosterone

injections

is

medically

unacceptable

under

the

circumstances, and that defendants made this medical decision in
4 - ORDER

conscious disregard of an excessive risk to plaintiff's health.
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
I

conclude

that

plaintiff

has

failed

to

demonstrate

a

likelihood of success on the merits, or that there are serious
questions going to the merits.

At this juncture, it appears more

likely that there is a mere difference of opinion between plaintiff
and defendants as to: (1) the proper course of treatment, if any,
for plaintiff’s low testosterone; (2) whether he suffers from
Klinefelter’s Disease; and (3) whether plaintiff suffers from any
other serious medical or mental condition for which testosterone
injections should be prescribed.1

A mere difference of opinion

between plaintiff and defendants as to the proper course of
treatment does not rise to the level of deliberate indifference.
Jackson, 90 F.3d at 332.
Moreover, plaintiff has failed to demonstrate he is likely to
suffer irreparable harm in the absence of injunctive relief, given
the dispute as to whether testosterone injections are medically
necessary except to treat Klinefelter’s Disease.
1

At the very

Plaintiff similarly has failed to demonstrate a likelihood
of success or that there are serious questions going to the
merits of an equal protection claim premised upon his assertion
that he is similarly situated to prisoners suffering from
Klinefelter’s Disease. See Towery v. Brewer, 672 F.3d 650 (9th
Cir. 2012) (class-of-one equal protection doctrine does not apply
to forms of state action that by their nature involve
discretionary decisionmaking based on a vast array of subjective,
individualized assessments).

5 - ORDER

least, plaintiff has failed to demonstrate that the facts and law
clearly support a mandatory injunction requiring defendants to
institute testosterone injections.
CONCLUSION
Based on the foregoing, plaintiff's motion for a preliminary
injunction (#13) is DENIED.
IT IS SO ORDERED.
3rd
DATED this ____ day of December, 2013.

/s/Michael W. Mosman
_____________________________
Michael W. Mosman
United States District Judge

6 - ORDER