Opinion
Case No. CIV-17-52-HE
08-21-2018
ANDREW LINTON SAWYERS, Plaintiff, v. CHRIS WEST, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Andrew Linton Sawyers, a state prisoner appearing pro se and in forma pauperis, filed an amended civil rights complaint pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to his serious medical needs while housed at the Canadian County Detention Center (CCDC) [Doc. No. 41]. Chief United States District Judge Joe Heaton referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Plaintiff recently filed a "Motion for Full Medical Exam of Plaintiff" (Motion) [Doc. No. 103], which the Court has construed as: 1) a request for a mandatory preliminary injunction against a non-party, and 2) a motion to conduct further discovery outside the Court-ordered June 6, 2018 deadline. [Doc. No. 104]. Defendants have objected accordingly, [Doc. No. 106], and Plaintiff did not reply. In this Report and Recommendation, the Court addresses Plaintiff's request for a mandatory preliminary injunction against a non-party and recommends that it be DENIED.
I. Background
Plaintiff alleges deliberate indifference to his serious medical needs while he was housed at CCDC. Specifically, Plaintiff alleges he underwent back surgery on February 22, 2016, just prior to his incarceration at CCDC on February 25, 2016. See Amend. Compl. at 10. Plaintiff alleges that Defendants refused to take him for his scheduled follow-up visit and periodically denied him pain medication and treatment. See id. at 10-11. Plaintiff was transferred to another facility on April 4, 2016. See id. at 12. While Plaintiff is in the custody of the Oklahoma Department of Corrections (DOC), he is currently housed at a private prison. See [Doc. No. 60].
Page references to court filings are to the CM/ECF page number.
The Court entered a scheduling order on April 2, 2018, requiring discovery to be completed no later than June 6, 2018, and any motions for summary judgment to be filed no later than July 6, 2018. [Doc. No. 96]. Defendants filed a motion for summary judgment on July 6, 2018. [Doc. No. 102]. On July 13, 2018, Plaintiff filed the present motion seeking, in relevant part, an order requiring DOC to send him for a full medical exam at a "non-affiliated medical facility." Motion at 1. As discussed, the Court has construed Plaintiff's request as one for a mandatory preliminary injunction. [Doc. No. 104]; see also Yost v. Stouffer, No. CTV-15-783-F, 2017 WL 4324835 at *6 (W.D. Okla. Aug. 24, 2017) (unpublished report and recommendation) (interpreting plaintiff's request that the Court order prison officials to take medically-related photographs to use as evidence as a request for a mandatory preliminary injunction), adopted (W.D. Okla. Sept. 28, 2017) (unpublished district court order).
II. Analysis
"A preliminary injunction is 'an extraordinary remedy that may only be awarded upon a clear showing that the movant is entitled to such relief.'" New Mexico Dep't of Game & Fish v. United States Dep't of the Interior, 854 F.3d 1236, 1245-46 (10th Cir. 2017) (citation and internal brackets omitted). Plaintiff must show: (1) he is "substantially likely to succeed on the merits;" (2) he "will suffer irreparable injury if the injunction is denied;" (3) the threatened injury to him "outweighs the injury" to the party opposing the preliminary injunction; and (4) "the injunction would not be adverse to the public interest." Id. (citation omitted). A preliminary injunction is characterized as "mandatory" if it affirmatively requires the nonmovant - here, DOC - to act in a particular manner. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). Such a request is generally disfavored, and thus Plaintiff must "'make a heightened showing of the four factors.'" Id. (citation and internal brackets omitted). Finally, for a preliminary injunction to be binding against DOC, Plaintiff must show that DOC is "in active concert or participation with" CCDC's "officers, agents, servants, employees, [or] attorneys[.]" Fed. R. Civ. P. 65(d)(2)(B); see also Lundahl v. Global E. LLC, 643 F. App'x 752, 753 (10th Cir. 2016). This is designed so that a party may not "thwart" an injunction through an "alter ego." Lundahl, 643 F. App'x at 753. Under these circumstances, the Court should deny Plaintiff's request for injunctive relief.
First, Plaintiff's suit encompasses alleged constitutional violations at CCDC but he seeks a mandatory injunction directed to DOC. CCDC is run by Canadian County officials, see Okla. Stat. tit. 19, § 513, while DOC is a State agency. Plaintiff provides no facts to suggest that DOC has been in active concert or participation with CCDC officials so as to be CCDC's alter ego in this matter. See, e.g., Spencer v. Doe, CIV-13-692-HE, 2013 WL 5930247, at *1 (W.D. Okla. Nov. 5, 2013) (unpublished district court order) (adopting magistrate judge's recommendation that the Court deny the preliminary injunction, in part, because plaintiff failed to allege sufficient facts to show two different correctional institutions were in active concert or participation with each other). Thus, the Court should deny Plaintiff's request for injunctive relief directed to non-party DOC.
Second, even if the Court could bind DOC, Plaintiff has failed to establish that he will suffer irreparable injury if the injunction is denied. That is, Plaintiff seeks a medical exam with a non-institution physician, presumably to counter whatever medical evidence Defendants presented in their summary judgment motion. See Motion at 1. But according to Defendants' exhibits, Plaintiff has already received such an examination while in DOC custody. See [Doc. No. 106, Ex. 2 (clinic notes from OU Medical Center, dated August 1, 2016, showing a complete physical examination with two imaging views of the lumbar spine)]. Plaintiff fails to explain how this examination was insufficient, or how he will be irreparably injured without an additional examination. As such, the Court should deny Plaintiff's request for injunctive relief. See Brooks v. Colorado Dep't of Corr., 730 F. App'x 628, 632 (10th Cir. 2018) (holding the district court did not abuse its discretion in denying plaintiff's request for a mandatory preliminary injunction where inmate could not establish "irreparable injury absent a preliminary injunction").
The Court may consider evidence "on a preliminary-injunction motion[.]" Procedure on an Application for a Preliminary Injunction, 11A Fed. Prac. & Proc. Civ. § 2949 (3d ed.). --------
RECOMMENDATION
For the foregoing reasons, the Court should DENY Plaintiff's construed motion for a mandatory preliminary injunction, [Doc. No. 103].
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 11, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation does not terminate the Chief District Judge's referral in this matter.
ENTERED this 21st day of August, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE