Herrington v. Bristol et al

Filing 200

OPINION AND ORDER: Plaintiffs Motions for a Mandatory Injunction [64, 77] are DENIED. Signed on 9/27/2018 by Judge Michael W. Mosman.**4 PAGE(S), PRINT ALL**(James Herrington, Prisoner ID: 4218905) (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

JAMES LEROY HERRINGTON,
No. 2:16-cv-00680-AC
Plaintiff,
v.

OPINION AND ORDER

DR. THOMAS BRISTOL, et al.,
Defendants.

MOSMAN, J.,
Plaintiff James Leroy Herrington comes before the Court seeking mandatory injunctions.
For the reasons set forth below, I DENY Plaintiff’s Motions for Mandatory Injunctions [64, 77].
BACKGROUND
Plaintiff is a prisoner at Snake River Correction Institution (“SRCI”). Plaintiff has filed a
42 U.S.C. § 1983 claim against SRCI medical staff, alleging a violation of his Eighth
Amendment guarantee against cruel and unusual punishment. While incarcerated, Plaintiff
experienced swelling and pain in two of his toes. He received medicine for his pain and
underwent x-rays, bloodwork, and a nerve conduction study. When Plaintiff continued to
experience pain, an SRCI doctor recommended that Plaintiff see a podiatrist. The SRCI’s
Therapeutic Level of Care Committee (“TLCC”) approved the referral, subject to Plaintiff
signing a CD28 form which would authorize payment from Plaintiff’s prison trust account to

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cover all expenses associated with seeing the podiatrist. Plaintiff would not sign the CD-28 and
has not yet seen a podiatrist.
Plaintiff alleges a right to see a specialist for his injuries and claims that the SRCI
medical staff has committed extortion by telling Plaintiff he must pay for a podiatrist, expenses,
follow-up treatments, and transportation for any visit. Plaintiff asks the court to order that he be
evaluated by an outside specialist paid for by SRCI, and asks for a preliminary injunction
preventing the court from issuing an opinion and order in this case before Plaintiff is seen by a
specialist.1
LEGAL STANDARD
In the Ninth Circuit, a court may issue a preliminary injunction if it finds that: “(1) the
[moving party] will suffer irreparable injury if injunctive relief is not granted, (2) the [moving
party] will probably prevail on the merits, (3) in balancing the equities, the [non-moving party]
will not be harmed more than [the moving party] is helped by the injunction, and (4) granting the
injunction is in the public interest.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir.
1994) (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670, 674–75). Alternatively, a court
may issue a preliminary injunction if the moving party demonstrates a combination of the
possibility of irreparable injury and probable success on the merits. Id.
While a preliminary injunction is designed to preserve the status quo, a mandatory
injunction “that goes well beyond simply maintaining the status quo pendente lite is particularly
disfavored.” Stanley, 13 F.3d at 1319 (quoting Anderson v. United States, 612 F.2d 1112, 1114

1

 Plaintiff filed a Motion for Mandatory Injunction [64] on May 26, 2017, accompanied by
Plaintiff’s Declaration [65] in which he explained what he was requesting in his motion.
Plaintiff then filed a Second Motion for Mandatory Injunction [77] on August 4, 2017, not
accompanied by further explanation. Because both motions contain the same language, I am
addressing the requests for injunctive relief in a single opinion.

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(9th Cir. 1979) (internal quotation marks omitted). “When a mandatory preliminary injunction is
requested, the district court should deny relief ‘unless the facts and law clearly favor the moving
party.’” Id. “Mandatory injunctions are generally not granted unless extreme or very serious
damage will result and are not issued in doubtful cases.” Marlyn Nutraceuticals v. Mucos
Pharma GmbH & Co., 571 F.3d 873, 879 (2011).
DISCUSSION
I.

Preliminary Injunction
Plaintiff requests a preliminary injunction preventing a final order on his claim until he

sees an outside specialist. To qualify for injunctive relief, the moving party must first show that
it will suffer irreparable injury if injunctive relief is not granted. Stanley, 13 F.3d at 1319.
Plaintiff has failed to meet that burden. He has been treated by medical staff at SRCI multiple
times, received diagnostic tests, and has been offered the option to pay for a visit to see a
podiatrist. SRCI medical staff and TLCC have categorized Plaintiff’s request to see a podiatrist
as “medically acceptable but not medically necessary care and treatment.” Def.’s Resp. to Pl.’s
Mots. for Mandatory Inj. [163] at 3; Or. Admin. R. 291-124-0041 (1)–(8) (2018). Based on this
categorization, the TLCC concluded that Plaintiff would be required to pay for the expenses of
seeing a podiatrist.
Plaintiff complains that SCRI seeks to require him to pay for his treatment from a
podiatrist. He has not, however, shown or even argued that requiring him to pay for this
treatment would prevent him from receiving care. Charging a prisoner fees for medical care
does not violate the Eighth Amendment unless it prevents him receiving medical care. See
Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985) (per curiam).
Accordingly, Plaintiff has not shown harm that would amount to irreparable injury and has not

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met his burden for a preliminary injunction.
II.

Mandatory Injunction
Plaintiff next requests a mandatory injunction ordering SRCI to send him to see a

podiatrist and ordering SRCI to pay all associated costs. The standard for a mandatory
injunction is more exacting than that for a preliminary injunction. Martin v. Int’l Olympic
Comm., 740 F.2d at 675. Plaintiff’s must show not only that he is likely to succeed on the
merits of his case, but also that he is likely to suffer very serious damage should the mandatory
injunction not be granted. As noted above, requiring a prisoner to pay for his own medical care
does not violate the Eighth Amendment unless it prevents him from receiving medical
care. See Shapley, 766 F.2d at 408. Plaintiff fails to allege any damage that would result from
requiring him to pay aside from the cost itself. That harm alone is insufficient to show his
likelihood of success on the merits of his claim or that he will suffer serious damage should he
pay for his podiatrist visit. Plaintiff has failed to meet his burden for a mandatory injunction.
CONCLUSION
For the reasons stated above, Plaintiff’s Motions for a Mandatory Injunction [64, 77] are
DENIED.
IT IS SO ORDERED.
27
DATED this ______ day of September, 2018.

/s/Michael W. Mosman
____________________________
MICHAEL W. MOSMAN
Chief United States District Judge

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