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Herder v. Biesh

July 13, 2010

RONALD M. HERDER, PLAINTIFF
v.
MR. BIESH, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

(Judge Caldwell)

MEMORANDUM

I. Introduction

The pro se plaintiff, Ronald M. Herder, an inmate at SCI-Huntingdon, Huntingdon, Pennsylvania, has filed two nearly identical motions for injunctive relief, seeking a transfer to another prison and a complete medical work up by a team of specialists.*fn1 Both motions (and the complaint) are based on the following claims: the denial of proper medical treatment for a spinal injury after a weightlifting machine fell on Plaintiff; poisoning by the medical staff by giving him an unknown "concoction" of a white powdery substance which damaged his heart and kidneys in retaliation for complaining of his inadequate medical care; and staff interference with his ability to exhaust his administrative remedies related to these events due to threats of physical harm and/or parole complications. See Docs. 8 and 22.

Plaintiff asserts that staff are denying him the appropriate care for these ailments and that they erroneously diagnosed him with an anxiety disorder as a ruse to poison or kill him. He contends he will suffer from permanent neurological and cardiac damage as well as continue to endure verbal and physical threats from staff without court intervention.

For the reasons stated below, both motions will be denied.

II. Standard of Review

A court issues a preliminary injunction in a lawsuit to preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the lawsuit's merits. Acierno v. New Castle County, 40 F.3d 645, 647 (3d Cir. 1994). "A preliminary injunction is an extraordinary remedy that is never awarded as of right." Winter v. Natural Res. Def. Council, U.S. , , 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008); Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).

In order to obtain preliminary injunctive relief pursuant to Fed. R. Civ. P. 65, the requesting party must show: (1) a likelihood of success on the merits; (2) irreparable harm resulting from the denial of relief; (3) granting the injunction will not result in irreparable harm to the non-moving party; and (4) granting the injunction is in the public interest. Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553, 556 (3d Cir. 2009)(citing McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir. 2007)). Preliminary relief requires a showing of likely irreparable injury. Winter, U.S. at , 129 S.Ct. at 375 (emphasis in original). In other words, "'a preliminary injunction will not be issued simply to prevent the possibility of some remote future harm.'" Id. (quoted case omitted).

III. Discussion

Plaintiff is presenting Eighth Amendment claims. In opposing the motions, the medical defendants argue that he has failed to show a substantial likelihood of success on those claims or that he will suffer irreparable harm if his request for injunctive relief is not granted. The court agrees.

A violation of the Eighth Amendment requires a showing of "deliberate indifference" to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). Specifically, an inmate must show that: (1) the prison officials had subjective knowledge of a risk of serious harm; and (2) the prison officials disregarded that risk. Id. at 834-35, 114 S.Ct. 1977-78. Deliberate indifference can be shown by a prison official "intentionally denying or delaying access to medical care or intentionally interfering with [medical] treatment once prescribed," Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), or by "persist[ing in] conduct in the face of resultant pain and the risk of permanent injury." White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). Thus, allegations that a physician or medical-department staff member "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. . . ." Estelle, 429 U.S. at 106, 97 S.Ct. at 292. Similarly, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107, 97 S.Ct. at 293. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or an inmate's disagreement with his medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

The record reveals the following. On May 11, 2009, a weight machine fell on Herder's back. (Doc. 8, Herder Decl. ¶ 1). He was placed on "lay in" status for one week and given a lower bunk status for two weeks. He was also provided Flexeril and Naproxen for two weeks. (Doc. 16-2, Shoaf Decl. ¶ 4). A few days later Herder's cervical spine was x-rayed, and the results were within normal limits. Id. A week later a CT scan of Herder's cervical spine was performed at J.C. Blair Hospital on May 23, 2009, and showed a minor rotation of the neck. (Doc. 24, CM/ECF p. 8*fn2 and Shoaf Decl. ¶ 5). On June 2, 2009, Herder was placed in bottom bunk and later that week was given a forty-eight-hour "lay in." (Id. ¶ 6).

The following week a lumbar spine x-ray was taken and was within normal limits. The next day Herder's right hip was x-rayed and was found to be within normal limits. (Id. ¶ 7). On June 30, 2009, July 7, 2009, and July 22, 2009, daily blood pressure checks were ordered over a course of several days to address complaints of elevated blood pressure. (Id. ¶ 8). No hypertensive abnormalities were identified. Id. According to Herder, at some point in June 2009 he was temporarily ...


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