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Walker v. Darbouze

United States District Court, M.D. Alabama, Northern Division

November 15, 2017

NEIL WALKER, #095197, Plaintiff,
v.
JEAN DARBOUZE, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE [1]

          WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 42 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.

         On 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.

         Upon 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.

         II. STANDARD OF REVIEW

         The 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).

         III. DISCUSSION

         In the 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 prescription renewed.
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 urine.
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 abnormalities seen.

         On 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 ...

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