United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on a
complaint and amendment thereto filed by Neil Walker, a state
inmate currently incarcerated at the Easterling Correctional
Facility. In the instant case, Walker challenges the
constitutionality of medical treatment provided to him for a
urinary tract infection that he believes resulted in his
contracting a rare type of bladder cancer.
October 20, 2017, the plaintiff filed a motion for
preliminary injunction in which he seeks issuance of a
preliminary injunction requiring defendant Darbouze to refer
him for examination and treatment by free world specialists.
Doc. No. 11 at 2. The medical defendants filed a response in
opposition to the motion for preliminary injunction,
supported by affidavits and relevant medical records. Docs.
No. 21 and 21-1.
review of the motion for preliminary injunction and the
response thereto filed by the medical defendants, the court
concludes that this motion is due to be denied.
STANDARD OF REVIEW
decision to grant or deny a preliminary injunction “is
within the sound discretion of the district court....”
Palmer v. Braun, 287 F.3d 1325, 1329
(11th Cir. 2002). This court may grant a
preliminary injunction only if Walker demonstrates each of
the following prerequisites: (1) a substantial likelihood of
success on the merits; (2) a substantial threat irreparable
injury will occur absent issuance of the injunction; (3) the
threatened injury outweighs the potential damage the
requested injunctive relief may cause the non-moving parties;
and (4) the injunction would not be adverse to the public
interest. Palmer, 287 F.3d at 1329;
McDonald's Corp. v. Robertson, 147 F.3d 1301,
1306 (1998); Cate v. Oldham, 707 F.2d 1176
(11th Cir. 1983); Shatel Corp. v. Mao Ta
Lumber and Yacht Corp., 697 F.2d 1352 (11th
Cir. 1983). “In this Circuit, ‘[a] preliminary
injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly established the
“burden of persuasion' as to the four
requisites.” McDonald's, 147 F.3d at 1306;
All Care Nursing Service, Inc. v. Bethesda Memorial
Hospital, Inc., 887 F.2d 1535, 1537 (11thCir.
1989) (a preliminary injunction is issued only when
“drastic relief” is necessary); Texas v.
Seatrain Int'l, S.A., 518 F.2d 175, 179
(5th Cir. 1975) (grant of preliminary injunction
“is the exception rather than the rule, ” and
movant must clearly carry the burden of persuasion). The
moving party's failure to demonstrate a
“substantial likelihood of success on the merits”
may defeat the party's claim, regardless of the
party's ability to establish any of the other elements.
Church v. City of Huntsville, 30 F.3d 1332, 1342
(11thCir. 1994); see also Siegel v.
Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000)
(noting that “the absence of a substantial likelihood
of irreparable injury would, standing alone, make preliminary
injunctive relief improper”). “‘The chief
function of a preliminary injunction is to preserve the
status quo until the merits of the controversy can be fully
and fairly adjudicated.' Northeastern Fl. Chapter of
Ass'n of Gen. Contractors of Am. v. City of Jacksonville,
Fl., 896 F.2d 1283, 1284 (11th Cir.
1990).” Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257, 1265 (11th Cir. 2001).
motion for preliminary injunction, Walker requests that Dr.
Darbouze be required to refer him to free world medical
personnel for examination and treatment of his cancer. Dr.
Darbouze, the Medical Director at Easterling and Walker's
attending physician at such facility, addresses Walker's
claim as follows:
I am in receipt of and I have reviewed the legal complaint
filed by Alabama state inmate Neil Walker (AIS# 095197). I am
aware that Mr. Walker alleges that he has not received
appropriate medical treatment for an alleged urinary tract
infection and that according to Mr. Walker; the urinary tract
infection resulted in cancer.
I have reviewed Mr. Walker's medical chart and Mr.
Walker's medical records from August 2016 to the present
time are attached hereto.
On January 26, 2017, Mr. Walker completed a sick call request
stating that he was having problems urinating.
Mr. Walker was triaged and evaluated by a nurse on January
27, 2017, at the health care unit at the Easterling
Correctional Facility. Mr. Walker complained of having
problems urinating. He also complained of having a rash in
the groin area.
I personally saw and evaluated Mr. Walker on February 9,
2017. Blood and chemical tests of Mr. Walker were performed
at that time.
Mr. Walker was again seen by a nurse and evaluated on March
1, 2017. Again, Mr. Walker was complaining with problems
urinating as well as a rash on his groin area. Mr. Walker
informed the nurse that he had previously been provided
Kenalog for his rash and it worked and he wanted the
On March 2, 2017, I again personally saw and evaluated Mr.
Walker. Labs were again taken of Mr. Walker.
On March 13, 2017, Mr. Walker was again evaluated by a nurse
and informed the nurse that he had discovered blood in his
On March 16, 2017, I again personally saw and evaluated Mr.
Walker and performed a physical examination of Mr. Walker.
Further labs and blood tests were performed on Mr. Walker.
On March 22, 2017, Mr. Walker was seen by a nurse in the
health care unit and again evaluated for Mr. Walker's
complaints of blood in his urine.
I again personally saw and evaluated Mr. Walker on March 28,
2017. A physical examination again was performed of Mr.
Walker and chemical and blood tests were again performed on
Mr. Walker…. I [also] recommended a urology consult
for Mr. Walker.
On March 31, 2017, an ultrasound was taken of Mr. Walker. The
ultrasound was read by the radiologist as follows:
US-retroperitoneal, complete. Clinical
indications: hematuria, unspecified.
Findings: retroperitoneal ultrasound,
complete: the right kidney measure[s] 10.0 cm in length and
left kidney 12.0 cm in length. Both have grossly preserved
sonographic cortical medullary demarcation without mass,
stones or hydronephrosis. Right renal cyst measuring up to
2.0 cm in size. There is no perinephric fluid. No. AAA. IVC
is not visualized. No. abnormalities seen involving the
urinary bladder. At least one ureteral jet is visualized.
Impression: no acute structural renal
April 13, 2017, Mr. Walker was seen by a urology specialist
physician at Urological Associates in Dothan, Alabama. The
history taken by the urologist was as follows:
70-year old inmate referred for urinary tract infection and
microscopic hematuria. His urine has been sent for cytology
by the doctor at the prison and according to his records was
negative. His last PSA was 0.24 but I am unaware what year or
date it is drawn. He states he has seen blood a few times. He
also complains of nocturia up to 4-5 times. He states his
stream is slow and his urine will start and stop. He has had
radiation for his prostate cancer back in 2011. He states his
urinary symptoms have been present for a year, the blood in
his urine for ...