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Tice v. Kohut

United States District Court, D. Montana, Helena Division

November 6, 2017

DR. KOHUT, MONTANA STATE PRISON MEDICAL DEPT. people unknown, and MONTANA STATE PRISON people unknown, Defendants.



         Plaintiff Joseph Tice filed a Complaint seeking an emergency injunction for medical needs (Doc. 1) and an Amended Complaint alleging Defendants denied him medical treatment for Hepatitis C and a blood clot while incarcerated at Montana State Prison (Doc. 3).

         The Court has considered whether Mr. Tice's claims are frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Mr. Tice has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Mr. Tice has stated a claim for denial of medical care against Dr. Kohut. As such, dismissal of Dr. Kohut is not appropriate at this time and Dr. Kohut must respond to the Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983, ” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a “reasonable opportunity to prevail on the merits, ” Defendant is required to respond).

         The Montana State Prison Medical Department and Montana State Prison, however, should be dismissed. The Eleventh Amendment bars suit in federal court against a state and/or state agencies absent a valid abrogation of immunity by Congress or an express waiver of immunity by the State. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267-268 (1997); Edelman v. Jordan, 415 U.S. 651, 653 (1974); Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). The State of Montana has waived immunity only for tort claims brought in state court. Mont. Code Ann. § 2-9-101 et seq. Thus, the State of Montana and state agencies have Eleventh Amendment immunity from suit in federal court. In addition, States are not “persons” subject to suit for money damages under section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65, 71 (1989). The Montana State Prison Medical Department and Montana State Prison will be recommended for dismissal.

         Mr. Tice initiated this action by filing a motion for an order requiring Montana State Prison to send him to inpatient care at a hospital. (Doc. 1.) This filing could be liberally construed as a motion for injunctive relief. Courts may grant preliminary injunctive relief pursuant to Federal Rule of Civil Procedure 65. However, such remedies are “extraordinary and drastic . . . [and] never awarded as of right[.]” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations omitted). When moving for a preliminary injunction, the plaintiff must make several showings: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; (3) the equities balance in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The test is conjunctive, meaning the party seeking the injunction must satisfy each element.

         In the Ninth Circuit, courts are to apply a “ ‘sliding scale approach' ” in evaluating the motion, “such that ‘serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.' ” Arc of Cal. v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)).

         Other considerations may apply to injunctive relief within the prison context. First, a more stringent standard applies where a party seeks affirmative relief. Ordinarily, preliminary injunctive relief aims to preserve the status quo pending a determination of the case on the merits. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009). When “a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction.” Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). Thus, mandatory preliminary relief is only warranted where both the facts and the law clearly favor the moving party and “extreme or very serious damage will result.” Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 2009) (internal quotation omitted). Second, the Prison Litigation Reform Act (“PLRA”) provides that, with regard to prison conditions,

[p]reliminary 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 the principles of comity . . . in tailoring any preliminary relief.

18 U.S.C. § 3626(a)(2). Therefore, the PLRA “operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the bargaining power of prison administrators-no longer may courts grant or approve relief that binds prison administrators to do more than the constitutional minimum.” Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000).

         Mr. Tice has not met this standard. Although he has stated a claim for denial of medical care, he provided no evidence to demonstrate a likelihood of success on the merits. Moreover, Mr. Tice is seeking a transfer of his incarceration to a hospital. He has not presented sufficient evidence for the Court to justify a preliminary injunction which would have a significant adverse impact on public safety and the operation of the criminal justice system.

         Based on the foregoing, the Court issues the following:


         1. Pursuant to Fed.R.Civ.P. 4(d), the Court will request Defendant Kohut to waive service of summons of the Complaint by executing, or having counsel execute, the Waiver of Service of Summons.[1] The Waiver must be returned to the Court within 30 days of the entry date of this Order as reflected on the Notice of Electronic Filing. If Defendant Kohut chooses to return the Waiver of Service of Summons, his answer or appropriate motion will be due within 60 days of the entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

         2. The Clerk of Court shall e-mail the following documents to Legal Counsel for the Montana Department of Corrections:

* Complaint (Doc. 2);
* Amended Complaint (Doc. ...

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