United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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)).
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).
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.
on the foregoing, the Court issues the following:
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. 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).
Clerk of Court shall e-mail the following documents to Legal
Counsel for the Montana Department of Corrections:
* Complaint (Doc. 2);
* Amended Complaint (Doc. ...