The opinion of the court was delivered by: MARVIN KATZ
AND NOW, this 27th day of January, 1995, upon consideration of plaintiff's Application For A Temporary Restraining Order and Defendants' Response To Plaintiff's Request For A Temporary Restraining Order And Motion To Dismiss The Complaint and after a hearing, it is hereby ORDERED that plaintiff's Application is DENIED.
Plaintiff is thirty-five years old and is currently incarcerated at the Federal Medical Center at Fort Worth, Texas.
Plaintiff has been incarcerated since May of 1990 in various federal prison facilities in Texas, Florida and Pennsylvania. Plaintiff is eligible for release in May 1977. At age eight, plaintiff underwent extensive surgery on his digestive system. His colon, rectum, appendix, large intestine and a portion of his small intestine were removed. Plaintiff's remaining small intestine was then pulled through a hole in his lower abdominal wall, allowing him to eliminate waste in a bag or pouch. This arrangement is known as an ileostomy and the opening is called a stoma. Coletta Dec. at 1-2; Berman Dec. at 1.
In September of 1993, plaintiff was transferred to the Lewisburg Federal Prison Camp. Berman Dec. at 2; Govt. Ex. E. Prior to his transfer to Lewisburg, plaintiff cared for his ileostomy by using: eight to ten ileostomy bags per day; ileostomy belts to keep the bags in place; stoma caps to maintain the stoma when the bags were not attached; a variety of salves and ointments; dilators which were periodically inserted into the ileostomy to ensure its operation;
and a controlled diet. Since being transferred to Lewisburg, plaintiff has been examined by no less than seven doctors that specialize in gastroenterology. Berman Dec. at 3-7; Govt. Exs. A, B, D, E. Their consensus is that plaintiff has chronic stenosis, a narrowing of the stoma, and will require surgery in the near future. Pl. Exs. C at 2, E at 3, F; Govt. Ex C.
On January 5, 1995, plaintiff filed the instant action claiming that defendants' conduct violated plaintiff's constitutional rights of freedom from cruel and unusual punishment and due process. Plaintiff's Complaint alleges that the federal prison authorities charged with providing his medical care have exercised deliberate indifference to his serious medical needs since his transfer to Lewisburg in September 1993. Plaintiff's Complaint specifically alleges that defendants have failed to provide him with: (1) an adequate supply of ileostomy bags; (2) sufficiently frequent professional care; and (3) a consistent course of treatment, and as a result his need for surgery has increased.
Since arriving at the Fort Worth facility, plaintiff has received frequent medical attention. Govt. Ex. D; Berman Dec at 7-9. Plaintiff's condition is currently being evaluated by Bureau of Prison medical personnel and outside consultants. Haas Dec. at 2. Specifically, on January 19, 1995, surgical revision of plaintiff's ileostomy was recommended by Dr. Wilson, a consultant general surgeon. Id.; Berman Dec. (1/19/95). Dr. Wilson informed plaintiff that he would recommend transfer to a federal facility in Minnesota that has a relationship with the Mayo Clinic for the required surgery. Id. Plaintiff was examined by Dr. Trinkle on January 26, 1995. Id. Dr. Trinkle is the Fort Worth facility's consultant gastroenterologist. Id. According to R. D. Haas, the Associate Warden (medical) at the Fort Worth facility, "when Dr. Trinkle's recommendation is received, our Clinical Director, John A. Barry, will formulate a comprehensive treatment plan, based upon the medical record, his professional expertise, and the recommendations of [Drs. Wilson and Trinkle]." Id. According to Associate Warden Haas, once Dr. Trinkle's recommendation is received and Clinical Director Barry formulates a treatment plan:
In the event Mr. Berman requires treatment which cannot be provided at this facility, Health Services staff will prepare a BP-204 Medical/Surgical and Psychiatric Referral Request, which will be routed through the Warden, to the Medical designator in the Bureau of Prisons' Central Office in Washington, D.C., for redesignation. The Medical Designator will make his determination based upon the availability of suitable bedspace and the patient's treatment requirements.
Haas Dec. at 2. Thus, the transfer plaintiff objects to is not imminent as plaintiff's medical needs are currently under evaluation by Bureau of Prisons authorities.
Additionally, the Bureau of Prisons has an administrative procedure by which prisoners may be examined by a private physician. Bureau of Prisons, Health Services Manual, Program Statement #6000.04, Chapter 5, Section 24. Upon application by an inmate, the Warden may permit a private physician to examine that inmate if the physician was treating the inmate for a major medical condition prior to incarceration or when the Warden and the Medical Director determine such a visit is reasonable and would not violate the best interests of any of the parties. Id. Through counsel, plaintiff is currently pursuing permission from the Bureau of Prisons for such an examination.
Plaintiff's request for this court to intervene in Bureau of Prisons administration by blocking an unscheduled transfer that plaintiff speculates will occur and ordering an examination by a private physician in Fort Worth is premature. Plaintiff has failed to exhaust the administrative remedy of petitioning the Warden pursuant to Bureau of Prisons, Health Services Manual, Program Statement #6000.04, Chapter 5, Section 24, for an examination by a private physician. There is no evidence that pursuing this remedy would be futile. Accordingly, plaintiff must first seek relief from the Bureau of Prisons before turning to this court. See Veteto v. Miller, 794 F.2d 98, 100 (3d Cir. 1986) (an inmate who requests more than money damages must exhaust his administrative remedies). In addition, even if plaintiff had exhausted his administrative remedies, injunctive relief is not presently warranted. A petitioner seeking injunctive relief must demonstrate both a likelihood of success on the merits and a probability of irreparable harm. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990). Additionally, the effect of the issuance of the injunctive relief on other interested persons and the public interest must be ...