Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Adam Wenzke,

) ) Plaintiff, ) ) v. ) ) Correctional Medical Services, et al. ) ) Defendants. )

C.A. No.: 07-504-MPT

DEFENDANT WELCH'S OPPOSITION TO PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF Defendant Jim Welch, Director of Health Services for the Delaware Department of Correction, (hereinafter "State Defendant"), by and through undersigned counsel, hereby respectfully responds to Plaintiff's Motion for Injunctive Relief (D.I.11). In support thereof, State Defendant states as follows:
LEGAL STANDARD

1.

Federal Rules of Civil Procedure Rule 65(a) sets out the standard to bring into

play injunctive relief. Injunctive relief is an "extraordinary remedy which should be granted only in limited circumstances." Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988), cited in Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989). The purpose of injunctive relief is not to address alleged past wrongs, but to prevent future violations. See United States v. Barr Lab., Inc. 812 F. Supp. 458, 487-488 (D.N.J. 1993). Therefore, the party seeking an injunction must demonstrate that the threatened injury is immediate. See Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.1989), cert. denied, 493 U.S. 848 (1989).

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2.

When ruling on a motion for preliminary injunctive relief, the district court must

consider four factors: (1) the likelihood that the applicant will prevail on the merits at final hearing; (2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendants will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir.1990). Nevertheless, a party moving for injunctive relief has the burden to demonstrate the existence of an immediate irreparable injury that has no remedy at law if the defendant is not enjoined from committing certain acts. Indeed, relief will be denied if the moving party demonstrates only a mere possibility of harm. 3. In order to grant injunctive relief, the court must be sufficiently satisfied that the

party seeking relief has demonstrated that all four factors are present. Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir.1995). All four factors should favor preliminary relief before the injunction will issue. S & R Corp. v. Jiffy Lube Intern, Inc., 968 F.2d 371, 374 (3d Cir. 1992). Plaintiff fails to meet his burden and his motion for preliminary injunction should be denied.
PLAINTIFF CANNOT SHOW LIKELIHOOD OF SUCCESS ON THE MERITS

4.

Plaintiff must show both a likelihood of success on the merits and probability of

immediate and irreparable harm. Plaintiff claims that he is experiencing tenderness in his testicles, and he requests to be sent to the Urologic Surgical Associates of Delaware to see Frances J, Shanne, M.D for treatment. (D.I. 11). A review of plaintiff's medical charts reveals that he has been provided treatment by prison doctors Smith and Derossier who are able to present an appropriate treatment plan and recommendation. Plaintiff's request for specific doctors and treatment is unreasonable. His request should be denied. 5. On or about December 18, 2006, plaintiff underwent ultrasound testing to

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examine possible scrotal mass. (See McEntire Affidavit attached as Exhibit "A"). A review of the ultrasound results revealed bilateral cysts, 1.0 cm. No masses were detected. Id. On or about December 20, 2007, Dr. Derossier examined plaintiff and diagnosed epidermal cysts with noted tenderness. Id. Following the diagnosis, plaintiff was given another ultrasound to ascertain the appropriate course of sustained treatment. Id.
PLAINTIFF FAILS TO DEMONSTRATE A THREAT OF IRREPARABLE HARM

6.

As previously stated plaintiff must demonstrate all four elements necessary for a

preliminary injunction: 1) likelihood of success on the merits; 2) the extent of irreparable harm to plaintiff; 3) the extent to which the defendants will suffer irreparable harm if the preliminary injunction is issued and (4) the public interest. 7. In order for plaintiff to set forth a cognizable Eighth Amendment claim, he must

allege: (1) serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Estelle v. Gamble, 429 U.S. 97, 103-105 (1976); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). " A prison official is `deliberately indifferent' to serious medical need if he knows that prisoner faces substantial risk of serious harm and fails to take reasonable steps to avoid harm." Farmer v. Brennan, 511 U.S. 825 (1994). Here, prison officials have not intentionally denied or delayed plaintiff's access to medical care. Albeit plaintiff is entitled to adequate medical care, he "has no right to choose a specific form of medical treatment," so long as the treatment provided is reasonable. Blackston v. Correctional Medical Services, Inc., 499 F. Supp.2d 601, 605 (D. Del.2007). Clearly, the medical records submitted herein reflect that scrotal cysts are diagnosed. See Wanzke Medical Records [sealed] submitted pursuant to D.I.14. The records also show that plaintiff is undergoing treatment as a result of his diagnosis. The treatment included ultrasound testing, and the administration of medication, as well as follow-up medical visits. There is not

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anything in the records to suggest or support a claim that plaintiff was refused or denied medical treatment. 8. Plaintiff cannot demonstrate a likelihood of success on the merits of a deliberate

indifference to a serious medical need claim. Hoxworth v. Blinder, Robinson & Co., 903 F.2d at 19798. In addition, a continued course of medical treatment obviates irreparable injury to plaintiff. WHEREFORE, the State Defendant respectfully requests that this Honorable Court enter an Order denying Plaintiff's motion.

STATE OF DELAWARE DEPARTMENT OF JUSTICE ___/s/ Ophelia M. Waters_____ Ophelia M. Waters (Bar ID #3879) Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Counsel for State Defendant

DATED: January 18, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Adam Wenzke,

) ) Plaintiff, ) ) v. ) ) Correctional Medical Services, et al. ) ) ) Defendants. )

C.A. No.: 07-504-MPT

ORDER Upon Plaintiff Adam Wenzke's motion for a preliminary injunction and Defendant Jim Welch's response in opposition to plaintiff's motion and, after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff Adam Wenke's Motion is DENIED. SO ORDERED this _________ day of ______________, 2008.

____________________________________ The Honorable Mary Pat Thynge United States District Court

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CERTIFICATE OF MAILING AND/OR DELIVERY
I, Ophelia M. Waters, Esq., hereby certify that on January 18, 2008, I caused a true and correct copy of the attached Opposition to Plaintiff's Motion for Injunctive Relief to be delivered to the following persons in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Adam Wenzke, Inmate SBI # 182595 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 MANNER OF DELIVERY: One true copy by facsimile transmission to each recipient X Two true copies by first class mail, postage prepaid, to each recipient Two true copies by Federal Express Two true copies by hand delivery to each recipient

____/s/ Ophelia M. Waters_________ Ophelia M. Waters, (Atty. ID #3879) Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400

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