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Roberts v. Raemisch

United States District Court, D. Colorado

September 11, 2018

RICK RAEMISCH, Exec. Dir. of CDOC, JOHN DOE, Chief Medical Officer of CDOC, HELENE CHRISTNER, Nurse Practitioner, DIRECTOR OF CHP/PHP, INC., GARY WARD, Sterling Health Services Administrator, and RENAE JORDAN, Director of Clinical & Correctional Services, Defendants.



         Plaintiff Larry Roberts (“Plaintiff”), a prisoner in the Colorado state prison system, brings this action pro se against Defendant Rick Raemisch, the Executive Director of the Colorado Department of Corrections (“CDOC”), other current and former employees of CDOC, and the Director of Correctional Health Partners (“CHP”) for allegedly inadequate treatment of Plaintiff's Hepatitis C. (ECF No. 1.) Plaintiff sets forth three claims for relief: (1) deliberate indifference to a serious medical condition in violation of the Eighth Amendment; (2) deprivation of due process by failing to adhere to a new standard of care for Hepatitis C treatment; and (3) deliberate indifference to a serious medical condition in violation of 28 C.F.R. § 35.131 under the Americans with Disabilities Act. (Id. at 9-10.)

         Currently before the Court is Plaintiff's “Motion for a Preliminary Injunction/T.R.O.” (“the Motion”). (ECF No. 5.) As explained below, Plaintiff fails to show irreparable harm absent an injunction, and the Court thus denies the Motion.

         I. BACKGROUND

         Plaintiff alleges that CDOC and CHP employees have provided inadequate treatment for his Hepatitis C. Plaintiff alleges that he has Hepatitis C, is in pain, and is deteriorating from the disease. (ECF No. 1 ¶¶ 2, 33.) He also claims that “his ALT [alanine transaminase] & AST [aspartate transaminase] levels are elevated and are scarring his liver.”[1] (Id.) Plaintiff also states that his AST to Platelet Ratio Index (“APRI”) score has varied from 0.30 to greater than 0.70, but as of September 19, 2017, was 0.019.[2] (Id. ¶¶ 16, 31.) The attachments to Plaintiff's complaint show that, as of March 5, 2017, Plaintiff's AST was 17 and ALT was 11 (both within normal range) and that, as of March 30, 2017, his APRI score was 0.3. (See ECF No. 1-1 at 5, 20.)

         Plaintiff claims that he sought treatment for his Hepatitis C but was denied because CDOC protocol requires that he first attend a drug and alcohol treatment program. (ECF No. 1 ¶¶ 3, 21, 26, 28-29, 41.) Plaintiff has refused drug and alcohol treatment, but nonetheless seeks treatment for Hepatitis C. (Id. ¶¶ 27, 29.) Plaintiff contends that the new standard of care for Hepatitis C is to treat at any stage of the disease regardless of non-medical requirements, such as the CDOC requirement that inmates first attend drug and alcohol classes. (Id. ¶ 17.) He also claims that CDOC protocol does permit treatment below an APRI of 0.70 and that he was denied treatment because his APRI score is lower than 0.70. (Id. ¶ 41; ECF No. 1-1 at 5.)

         In support of the instant Motion, Plaintiff states that “he has been denied care for a serious medical need contrary to a physician's instructions.” (ECF No. 5 at 1.) Replying on the court's analysis in support of granting a preliminary injunction to an inmate with Hepatitis C in Abu Jamal v. Wetzel, 2017 WL 34700, at *20 (M.D. Pa. Jan. 3, 2017), Plaintiff seemingly claims that absent treatment, Plaintiff will “continue to suffer from chronic hepatitis C[, ] . . . [h]is liver will continue to scar[, ] and its functioning will continue to deteriorate.” (Id. at 8.) Plaintiff therefore asks the Court for a temporary restraining order (“TRO”) or preliminary injunction to enjoin CDOC from enforcing its Hepatitis C protocol and requiring CDOC to treat Plaintiff's Hepatitis C. (Id. at 11.)


         A preliminary injunction is an extraordinary remedy; accordingly, the right to relief must be clear and unequivocal. See, e.g., Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003); First Western Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1141 (10th Cir. 2017). To meet this burden, a party seeking a preliminary injunction must show: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and that (4) the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).

         The movant has a heightened burden on three types of “specifically disfavored” preliminary injunctions: “(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc), aff'd and remanded sub nom. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). In those circumstances, the movant must make a “strong showing” on both the likelihood of success on the merits and on the balance of harms. Id. Here, Plaintiff has a heightened burden because the requested preliminary injunction would “require Defendants to act and/or otherwise alter the status quo in relation to their dealings with Plaintiff.” Rudnick v. Raemisch, 2017 WL 2333099, at *2 (D. Colo. May 30, 2017); see Rodriguez v. Wiley, 2009 WL 6325780, at *3 (D. Colo. Aug. 14, 2009) (concluding that an injunction requiring the defendant to provide Hepatitis C treatment to an inmate would “alter the status quo through the performance of a positive act”).

         The purpose of a TRO is to “preserv[e] the status quo and prevent[] irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). To obtain a TRO, Plaintiff must satisfy the same elements it would need to satisfy for a preliminary injunction. See NRC Broad. Inc. v. Cool Radio, LLC, 2009 WL 2965279, at *1 (D. Colo. Sept. 14, 2009).

         III. ANALYSIS

         The moving party bears the burden of persuasion as to each of the four elements of injunctive relief. Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003); Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). “A showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, and therefore the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” N.M. Dep't of Game and Fish v. U.S. Dep't of the Interior, 854 F.3d 1236, 1249 (10th Cir. 2017) (brackets omitted) (quoting Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004)).

         “[T]he party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Heideman, 348 F.3d at 1189 (emphasis in original) (quotations and citations omitted); see Rudnick, 2017 WL 2333099, at *3 (denying a preliminary injunction where the plaintiff failed to demonstrate that he would likely experience irreparable harm). “Irreparable harm, as the name suggests, is harm that cannot be undone, such as by an award of compensatory damages or otherwise.” Salt Lake Tribune Publ'g Co. v. AT&T Corp., 320 F.3d 1081, 1105 (10th Cir. 2003). “To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.” Scrier v. University of ...

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