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Sliwinski v. Salmonson

United States District Court, D. Montana, Helena Division

May 16, 2019

THOMAS EMIL SLIWINSKI, Plaintiff,
v.
JAMES SALMONSON, REGINALD MICHAEL, PAUL REES, CINDY HINER, CONNIE WINNER, and UNKNOWN MEDICAL PERSONNEL, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Thomas Sliwinski, a prisoner proceeding without counsel, filed a memorandum of law in support of a motion for temporary restraining order. Defendants were directed to file a response to the request for temporary restraining order and have now done so. Based upon the evidence presented by Defendants the Court finds that preliminary injunctive relief is not appropriate at this time and the request should be denied.

         Also pending are Mr. Sliwinski's motion to appoint an expert witness, motion for leave to file a reply, and a motion for an order requiring Defendants to supply tape recorders. Those motions will be denied.

         I. INJUNCTIVE RELIEF

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citations omitted). It serves not as a preliminary adjudication on the merits, but as a tool to preserve the status quo and prevent irreparable loss of rights before judgment. Textile Unlimited, Inc. v. A.. BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001). In reviewing a motion for preliminary injunction, “courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (citations and internal quotation marks omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20 (citations omitted).

         Winter does not expressly prohibit use of a “sliding scale approach to preliminary injunctions” whereby “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance/or the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The Ninth Circuit recognizes one such “approach under which a preliminary injunction could issue where the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor.” Id. (citations and internal quotation marks omitted).

         A preliminary injunction “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citations omitted, emphasis in original). A request for a mandatory injunction seeking relief well beyond the status quo is disfavored and shall not be granted unless the facts and law clearly favor the moving party. Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994).

         In order to prove a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, a plaintiff must show “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Thus, in order to prevail, Mr. Sliwinski must show both that his medical needs were objectively serious, and that Defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is “deliberate indifference.” Hudson v. McMillian, 503 U.S. 1, 5 (1992).

         A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. Wood v. Housewright, 900 F.2d 1332, 133741 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). It is obvious from the record that Mr. Sliwinski has serious medical needs.

         Therefore, the issue in this case is whether Defendants are being deliberately indifferent to Mr. Sliwinski's serious medical needs. In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court established a demanding standard for “deliberate indifference.” Negligence is insufficient. Farmer, 511 U.S. at 835. Deliberate indifference is established only where the defendant subjectively “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal citation omitted). Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted). A physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

         The parties generally agree regarding the nature of Mr. Sliwinski's medical condition. Mr. Sliwinski has stomach wound that will not heal. Defendants describe Mr. Sliwinski's condition as a draining sinus tract which is sometimes referred to as a fistula. Mr. Sliwinski apparently suffered stab/gunshot wounds in 2015. He was admitted to the University of California San Diego (UCSD) on October 15, 2015 and underwent a procedure to repair injuries to his abdominal wall and bowels as a result of his stomach wounds. The procedure involved, in part, a small bowel resection (removal) and lower abdominal wall reconstruction with the implantation of mesh. (Rees Aff., Doc. 39-1 at ¶¶ 11-15.)

         Mr. Sliwinski was transferred to Montana State Prison (MSP) on March 7, 2017. He was first seen at MSP for his fistula on April 29, 2017. (Rees Aff., Doc. 39-1 at ¶ 18.) The medical records and Dr. Rees's affidavit indicate that Mr. Sliwinski consulted with Dr. Raiser on February 7, 2018. Dr. Raiser recommended that MSP medical staff discuss Mr. Sliwinski's case with a tertiary center for removal of the infected mesh and abdominal wall reconstruction involving plastic surgery. (Rees Aff., Doc. 39-1 at ¶ 55.) Dr. Rees discussed this recommendation with Mr. Sliwinski and discussed facility options for consideration including University of Washington, Mayo Clinic, University of Utah, and the University of California at San Diego (UCSD). (Rees Aff., Doc. 39-1 at ¶ 57.)

         Dr. Rees presented Mr. Sliwinski's case to the referral coordinator at the Mayo Clinic and then the Mayo Clinic financial department reviewed Mr. Sliwinski's case. (Rees Aff., Doc. 39-1 at ¶ 62.) Mayo Clinic informed Dr. Rees that Mayo could not accept Mr. Sliwinski because they do not accept out of state Medicaid nor its rates. (Rees Aff., Doc. 39-1 at ¶ 63.) Dr. Rees also spoke to the University of Washington and UCSD. Neither would accept Mr. Sliwinski as a surgical patient. (Rees Aff., Doc. 39-1 at ¶¶ 68-69.)

         On October 12, 2018, Dr. Rees spoke with Dr. Vargo at the University of Utah School of Medicine. (Rees Aff., Doc. 39-1 at ¶ 78.) After being presented with Mr. Sliwinski's case and history, Dr. Vargo requested an updated CT scan of Mr. Sliwinski's abdomen, and all operative and imaging reports since Mr. Sliwinski's first surgery at UCSD. (Rees Aff., Doc. 39-1 at ¶ 79.) Dr. Rees immediately sent the requested documentation to Dr. Vargo, and scheduled Mr. Sliwinski for a follow-up CT scan. (Rees Aff., Doc. 39-1 at ¶ 80.) On October 15, 2018, Mr. Sliwinski underwent another abdominal CT scan. (Rees Aff., Doc. 39-1 at ¶ 81.) That CT scan revealed that there were no changes in Mr. Sliwinski's abdominal sinus tract from his prior exam in January 31, 2018. (Rees Aff., Doc. 39-1 at ¶ 82.) Dr. Rees sent a copy of the report that accompanied the CT scan to Dr. Vargo, along with pictures of Mr. Sliwinski's sinus. (Rees Aff., Doc. 39-1 at ¶ 83.)

         After reviewing Mr. Sliwinski's case, Dr. Vargo agreed to see Mr. Sliwinski. (Rees Aff., Doc. 39-1 at ¶ 84.) Mr. Sliwinski was scheduled to see Dr. Vargo and the medical team at the University of Utah on December 20, 2018, and Mr. Sliwinski was transported down to Utah in advance of his visit. (Rees Aff., Doc. 39-1 at ¶ 85.) Mr. Sliwinski was seen by the University of Utah Director of Surgery and one of the heads of their Plastic Surgery department. (Rees Aff., ...


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