Free Order on Motion for Preliminary Injunction - District Court of Delaware - Delaware

Case 1 :07-cv-00031-GIVIS Document 102 Filed 04/16/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
F OR THE DISTRICT OF DELAWARE
WILLIAM JOSEPH WEBB, JR., )
Plaintiff g
v. ) Civil Action No. 07--031-GMS
CORRECTIONAL MEDICAL SERVICES, l
et al., )
J
Defendants. )
MEMORANDUM ORDER
At Wilmington, this #6 if day of /éy/J , 2008;
The plaintiff William Joseph Webb, Jr. ("Webb"), a prisoner housed at the Delaware
Correctional Center, tiled this lawsuit pursuant to 42 U.S.C. § 1983. He proceeds pro se and was
granted leave to proceed informa pauperis. (D.I. 5.) Pending before the court is Webb’s’
letter/motion for a temporary restraining order seeking medical treatment. (D.I. 71.) The
defendants filed their responses, along with pertinent medical records. (D.I. 81, 82, 83, 84, 85,
87.)
A party seeking a preliminary injunction must show: (1) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the
public interest favors such relief. Kos Pharmaceuticals, Inc. v. Arzdrx Corp., 369 F.3d 700, 708
(3d Cir. 2004)(citation omitted). "Preliminary injunctive relief is ‘an extraordinary remedy’ and
‘should be granted only in limited circtunstances."’ Iaf (citations omitted).
Webb claims that he is "being denied medical care by CMS in various ways." He claims

Case 1:07-cv-00031-GIVIS Document 102 Filed 04/16/2008 Page 2 of 4
that was supposed to be tested for MRSA (i.e., methicillin—resistartt staphylococcus aureus),
bacterial meningitis, and undergo a livery biopsy, none of which has occurred. He also asserts
that he has an infected left leg which "might be another case of MRSA," and that he submitted a
sick call slip on December 8, 2007, but has not received treatment. Webb asks to be transferred
to an "outside hospital to receive adequate medical care and necessary tests and to have a liver
biopsy performed."
The medical defendants ask the court to deny the motion and respond that: (1) Webb has
failed to meet the standard to obtain injunctive relief, (2) there are insufficient grounds to show
that Webb will suffer irreparable if the motion is denied, (3) the claims are improperly before the
court because Webb did not administratively exhaust them and the medical issues addressed by
Webb do not arise form the same allegations as in the complaint and, therefore, are not properly
before the court, and (4) Webb is receiving adequate treatment for his medical conditions. (D.I.
81.) The defendant Stan Taylor asks the court to deny the motion on the basis that plaintiff has
not demonstrated an adequate showing to warrant injunctive relief. (D.l. 83.) He also asks the
court to impose attorney’s fees against Webb for his frivolous use of the court system.
"[A] prisoner has no right to choose a specific form of medical treatment," so long as the
treatment provided is reasonable. Harrison v. Barkley, 219 F .3d 1312, 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 v. Gamble, 429 U.S. 97, 107 (1976). Finally, "mere
disagreement as to the proper medical treatment" is insufficient to state a constitutional violation.
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Case 1:07-cv-00031-GIVIS Document 102 Filed 04/16/2008 Page 3 of 4
See Spruill v. Gi//is, 372 F.3d 218, 235 (3d Cir. 2004) (citations omitted).
The medical records submitted indicate that Webb receives medical care on a regular
basis. (D.l. 82, ex. D) The medical records reflect that Webb was diagnosed with Hepatitis C in
1996 and is seen frequently at the chronic care clinic. He was seen by a physician August 23,
2007. The records reflect that at that time Webb was to have lab work and then would be sent
for a liver biopsy. It does not appear that a liver biopsy has been performed.
Webb was hospitalized on September 17, 2007, with cellulitis and discharged on
September 22, 2007. Upon discharge from the hospital Webb was admitted to the DCC
infirmary where he remained until October 1, 2007. Following discharge, he received follow-up
care. Since that time Webb received medical care on October 5, 2007, and was scheduled for a
lab review. A consultation request was submitted on October 12, 2007, and on that date Webb
received medical care. In addition to seeing medical personnel on ()ctober 23, 2007, November
15, 2007, and November 19, 2007, Webb received treatment as recently as January 9, 2008. At
that time Webb was scheduled for a two-week follow-up.
Given the exhibits submitted to the court, Webb has not demonstrated the likelihood of
success on the merits. The records indicate that he has received, and continues to receive, care
for his medical conditions. Moreover, the medical records indicate that his medical conditions
are being monitored. While Webb may not have received the medical testing he desires, there is
no indication that, at the present time, Webb is in danger of suffering irreparable harm. Webb
has neither demonstrated the likelihood of success on the merits, nor has he demonstrated
irreparable harm to justify the issuance of immediate injunctive relief. Accordingly, based upon
the foregoing analysis, Webb’s motion for a temporary restraining order is denied. (D.l. 71.)
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Case 1:07-cv-00031-GIVIS Document 102 Filed 04/16/2008 Page 4 of 4
The court denies the defendants’ request for attorne ’s fees. (D.I. 83.)
STA ES DI T T GE
F I L E D

D:é`?é—%§§ §gE
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