Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNION : : Defendants. :

C.A. No. 07-239 JJF

OPPOSITION OF DR. BINNION1 TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (D.I. 59) Defendant Dr. Binnion, by and through his undersigned counsel of record, hereby responds in opposition to Plaintiff's Motion for Preliminary Injunction, and states as follows: 1. On May 2, 2007 Plaintiff filed his Complaint alleging civil rights violations against

Raphael Williams, Lt. Sheets, and Mr. Smith. (D.I. 2) Dr. Binnion was not a named defendant. (Id.) On June 25, 2007 Plaintiff filed his Amended Complaint which added as defendants Dr. McDonald and Jim Welch and dismissing Raphael Williams. (D.I. 8) The Amended Complaint did not name Dr. Binnion, either. (Id.) On July 31 Plaintiff filed his Second Amended

Complaint, this time adding Dr. Binnion as a defendant. (D.I. 11) Plaintiff's Complaint alleges that Dr. Binnion has failed properly to treat Plaintiff's Hepatitis B. (Id.)

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Dr. Binnion has not yet been served with process in the above-captioned matter and has, in fact, filed a motion to dismiss the above-captioned action for failure timely to serve pursuant to Fed.R.Civ.P. 4. (D.I.57) Counsel's appearance here is solely for the purpose of responding to the instant motion so as not to waive any defense Dr. Binnion may have to this Motion. Appearance here is not done with the intent to waive any defense in the above-captioned action and Dr. Binnion expressly reserves the right to all defenses available to him, including failure timely to serve.

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2.

On March 20, 2008, Plaintiff filed the instant Motion. This Motion should be denied.

Plaintiff's condition is being monitored and he requires no medical treatment for it at this time. ARGUMENT The Legal Standards 3. "[T]he grant of injunctive relief is an `extraordinary remedy, which should be granted

only in limited circumstances.' " Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989) (quoting Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988)). In ruling on a preliminary injunction, the Court must consider: 1) the likelihood of success on the merits; 2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; 3) the extent to which the defendant will suffer irreparable harm if the requested relief is granted; and 4) the public interest. See Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir.1995). An injunction should only issue if all four factors favor injunctive relief. See S & R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 374 (3d Cir.1992). Plaintiff does not carry this burden. He cannot establish a likelihood of success on the merits and he cannot establish that he is being irreparably harmed by the conduct complained of, and so the Motion should be denied. 4. In order to state a claim for a violation of civil rights based on medical care, a plaintiff

"must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend `evolving standards of decency.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976). Estelle clarified the standards as follows: An inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind" . . . Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Id.

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5.

In order to show "deliberate indifference," a Plaintiff must demonstrate a sufficiently

culpable state of mind on the part of the defendant. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff has not met that challenge. Mere allegations of negligence do not meet the Farmer standards. See Estelle, 429 U.S. at 105-106. Nor can the claim rest solely on the

prisoner's dissatisfaction with the medical care he has received. Id. at 107. Plaintiff is entitled to adequate medical care, but is not entitled to direct the type of care he receives: However, "a prisoner has no right to choose a specific form of medical treatment," so long as the treatment provided is reasonable. Poole v. Taylor, 466 F.Supp.2d 578, 589 (D.Del.2006) (citing Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir.2000)). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate's behalf. Estelle, 429 U.S. at 107, 97 S.Ct. 285. Moreover, allegations of medical malpractice are not sufficient to establish a constitutional violation. White v. Napoleon, 897 F.2d 103, 108-109 (3d Cir.1990); Spruill v. Gillis, 372 F.3d at 235. Mere disagreement as to the appropriate treatment is insufficient to state a constitutional violation. Spruill, 372 F.3d at 235. See Blackston v. Correctional Medical Services, Inc., --- F.Supp.2d ----, 2007 WL 2325210 * 3 (D.Del., August 16, 2007) (emphasis supplied) (granting summary judgment in favor of medical provider and against plaintiff/prisoner); accord Pecoraro v. Correctional Medical Services, 2007 WL 1560302 at *4 (D.N.J., May 25, 2007)2 (stating prisoner's subjective dissatisfaction with his dental care, and not a deliberate withholding or delay of treatment as alleged in the Complaint, is not in itself indicative of deliberative indifference) (citing Andrews v. Camden County, 95 F.Supp.2d 217, 228 (D.N.J.2000)). Plaintiff Fails to Show that He is Likely to Prevail on the Merits 6. Plaintiff has, in fact, been diagnosed with Hepatitis B. However, that disease is not

typically treated, particularly where the patient's liver function is not compromised. (Exhibit "B", Affidavit of Dr. Binnion) In fact, Dr. Binnion, in all his years of experience with patients who have contracted Hepatitis B, has never prescribed any active treatment for the disease. (Id.
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Unreported decisions are included as Exhibit "A".

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at ¶6). Plaintiff's liver function tests show that he does not require any active treatment. As recently as March 27, 2008, Plaintiff's ALT level was 7, which is in the normal range. (Id. at ¶8) Moreover, Plaintiff's condition is being monitored by Dr. MacDonald. (Id. at ¶7) Because no active treatment is required, and because he is being medically monitored, Plaintiff cannot show either a serious medical need or deliberate indifference, and so this Motion must be denied where the Plaintiff fails to establish a likelihood of success on the merits. 7. In addition, because the Plaintiff does not require treatment for this condition, he cannot

establish that he is being irreparably harmed by the conduct complained of. Accordingly, because Plaintiff is unlikely to succeed on the merits where he cannot establish either a serious medical need or deliberate indifference thereto, and cannot establish that he is being irreparably harmed by the conduct complained of, this Motion should be denied. See Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir.1995); S & R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 374 (3d Cir.1992). WHEREFORE, for the foregoing reasons, defendant Dr. Binnion respectfully requests entry of an order in the form attached hereto denying the Plaintiff's Motion for Preliminary Injunction. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Dr. Binnion Date: April 11, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNION : : Defendants. : RICHARD E. CLARK, JR.,

C.A. No. 07-239 JJF

ORDER AND NOW, this day of , 2008, the Court having considered

Plaintiff's Motion for Preliminary Injunction (D.I. 59) and all opposition thereto, it is hereby ordered that the Motion is DENIED.

J.

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 11th day of April 2008, the foregoing Opposition of Dr. Binnion to Plaintiff's Motion for Preliminary Injunction was filed via CM/ECF and served upon the following via the manner indicated:

FIRST CLASS MAIL Richard E. Clark Jr. SBI# 477726 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 CM/ECF FILING Erika Yvonne Tross, Esquire Department of Justice 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801

/s/ James E. Drnec James E. Drnec, Esquire (#3789)