Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:07-cv-00514-SLR Document 25 Filed 10/16/2007 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAVID W. RUSH, )
Plaintiff, g
v. g Civ. Action No. 07-514-SLR
CORRECTIONAL MEDICAL SYSTEMS, g
et al., )
)
Defendants.
MEMORANDUM ORDER
At Wilmington this llmday of October, 2007, having considered plaintiff’s motion
for temporary restraining order/preliminary injunction (D.l. 7), and the papers submitted
thereto;
IT IS ORDERED that the motion is denied, for the reasons that follow;
1. Background. Plaintiff, David R. Rush, an inmate housed at the Delaware
Correctional Center ("DCC"), filed a motion for temporary restraining order/preliminary
injunction. (D.l. 7) The motion states that plaintiff requires emergency medical care for
treatment of his acutely painful lipoma growths, atrophied shoulder muscle, late stage
Hepatitis C, and liver cirrhosis. The court ordered defendant, Correctional Medical
Services ("CMS"), and the Attorney General of the State of Delaware to file responses
to plaintiffs motion. (D.l. 13) Responses were filed along with plaintiff's medical
records. (D.l. 17, 18, 19, 20)
2. Standard. When considering a motion for a temporary restraining order or
preliminary injunction, plaintiff must demonstrate that: (1) he is likely to succeed on the
merits; (2) denial will result in irreparable harm; (3) granting the injunction will not result

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in irreparable harm to the defendant(s); and (4) granting the injunction is in the public
interest. Maldonado v. Houstoun, 157 F.3d 179, 184 (3d Cir. 1997). "[A]n injunction
may not be used simply to eliminate a possibility of a remote future injury, or a future
invasion of rights." Continental Group, lnc. v. Amoco Chems. Corp., 614 F.2d 351, 359
(3d Cir. 1980)(quoting Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614, 618 (3d
Cir. 1969)). "The relevant inquiry is whether the movant is in danger of suffering
irreparable harm at the time the preliminary injunction is to be issued." Sl Handling
Sys., Inc. v. Heisley, 753 F.2d 1244, 1264 (3d Cir. 1985).
3. Discussion. Defendants CMS and the Delaware Department of Correction
("DOC") respond that plaintiff’s motion should be denied. More specifically, the DOC
argues that plaintiff’s medical records appear to indicate that the medical staff is
monitoring and testing plaintiff’s condition. CMS argues that plaintiffs motion is moot
with respect to his treatment for Hepatitis C. lt argues that plaintiffs request for elective
surgery to treat lipoma should be denied inasmuch as the condition is not life-
threatening and does not constitute a serious medical condition. Additionally, CMS
notes that plaintiff has been seen by consulting dermatologists and CMS physicians
who have monitored and treated his condition
4. The medical records submitted indicate that plaintiff is receiving ongoing care
and treatment and is being followed for his medical conditions. (D.I. 18, 20) Plaintiff
has been evaluated for Hepatitis C treatment and, assuming he remains stable, was
scheduled to begin treatment on September 29, 2007. (D.I. 19, aff. Dr. Lawrence
McDonald)
5. Plaintiff contends, but provides no evidence to support his position, that he
has "late-stage" lipoma which is a serious medical condition. Dr. John Conlon ("Dr.
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ConIon") avers that plaintiff’s skin lipoma is benign and not Iife—threatening. (D.I. 19, aff.
Dr. John Conlon) He further avers that lipoma do not present an immediate threat to
plaintiff’s health. Q Also, the removal of lipoma is a cosmetic and elective surgical
procedure. Lt;
5. Given the exhibits submitted to the court, plaintiff has not demonstrated the
likelihood of success on the merits. The records indicate that plaintiff has received, and
continues to receive, care for his medical conditions. Moreover, the medical records
indicate that CMS is monitoring plaintiff’s conditions. There is no indication that, at the
present time, plaintiff is in danger of suffering irreparable harm. Plaintiff has neither
demonstrated the likelihood of success on the merits, nor has he demonstrated
irreparable harm to justify the issuance of immediate injunctive relief.
6. Conclusion. Therefore, the motion for temporary restraining order!
preliminary injunction (D.l. 7) is denied.
. 7 7
United tate D1strictJudge
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