United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON, UNITED STATES MAGISTRATE JUDGE
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
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.
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).
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).
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).
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).
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
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.
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 ¶¶
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.)
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 ¶¶
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.)
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.,