Rush v. Correctional Medical Services, Inc. , 287 F. App'x 142 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-31-2008
Rush v. Corr Med Ser
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4552
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"Rush v. Corr Med Ser" (2008). 2008 Decisions. Paper 762.
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BLD-233 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4552
___________
DAVID R. RUSH,
Appellant
v.
CORRECTIONAL MEDICAL SERVICES, INC.; SCOT ALTMAN;
CHRISTINE MALANEY; DONNA PLANTE; MD JOHN DOE; GAIL
ELLER; FREDERICK DURST; MD MUHAMMAD NIAZ; FIRST
CORRECTIONAL MEDICAL, INC.; MD SITTA ALI;
MD MCDONALD; DEBBIE RODWELLER
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 07-cv-00514)
District Judge: Honorable Sue L. Robinson
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 19, 2008
Before: MCKEE, RENDELL and SMITH, Circuit Judges
(Opinion filed: July 31, 2008)
_________
OPINION
_________
PER CURIAM
Appellant, David Rush, appeals from an order of the United States District Court
for the District of Delaware denying his motion for preliminary injunctive relief and a
temporary restraining order ("TRO”). Rush also appeals from the District Court’s order
denying his motion for reconsideration pursuant to Fed. R. Civ. P. 59(e).1 For the reasons
that follow, we will summarily affirm the District Court.
Rush’s complaint, filed pursuant to 42 U.S.C. § 1983, sought a temporary
restraining order and injunctive relief ordering emergency medical treatment of his severe
health conditions. On October 16, 2007, the District Court denied Rush’s request for a
temporary restraining order and for injunctive relief. Rush filed a motion for
reconsideration, which the District Court denied on November 19, 2007. Rush appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a)(1). In
reviewing a district court’s denial of injunctive relief, “‘[w]e review the district court’s
conclusions of law in a plenary fashion, its findings of fact under a clearly erroneous
standard, and its decision to grant or deny the injunction for an abuse of discretion.’” New
Jersey Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995) (citations omitted).
We will summarily affirm a district court’s order if an appeal presents no substantial
1
To the extent that Rush seeks to appeal from the District Court’s October 31, 2007
order, partially dismissing his complaint, we lack jurisdiction to consider his appeal at this
time. An order entered by a District Court that decides fewer than all of the claims, or
determines the rights and liabilities of fewer than all of the parties, is not immediately
appealable unless the District Court directs entry of a final judgment. Fed. R. Civ. P.
54(b). Because the District Court’s October 31, 2007 order does not dismiss all claims as
to all parties and the District Court did not direct entry of judgment under Rule 54(b), the
order is not appealable at this time.
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question. See I.O.P. 10.6.
“A preliminary injunction is an extraordinary remedy that should be granted only
if: (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable
harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the
defendant; and (4) granting the injunction is in the public interest.” NutraSweet Co. v.
Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). “[F]ailure to establish any
element in [a plaintiff’s] favor renders a preliminary injunction inappropriate.” Id.
Furthermore, because of the intractable problems of prison administration, a request for
injunctive relief in the prison context must be viewed with considerable caution. Goff v.
Harper, 60 F.3d 518, 520 (8th Cir. 1995).
The District Court concluded that Rush could not show irreparable harm absent
issuance of the injunction. We agree. To show irreparable harm, a plaintiff must
demonstrate a clear showing of immediate, irreparable injury; an injunction may not be
used to eliminate the possibility of a remote future injury. Acierno v. New Castle County,
40 F.3d 645, 653 (3d Cir. 1994).
Rush has been diagnosed with Hepatitis C, cirrhosis of the liver and has a lipoma
growth. Rush’s complaint also alleges that he suffers from an atrophied shoulder muscle.
On March 27, 2007, Rush began receiving Interferon injections for the treatment of his
Hepatitis C. Accordingly, Rush’s request for injunctive relief regarding the treatment of
his Hepatitis C appears moot. In his supplemental response, however, Rush asserts that
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the prison medical personnel are utilizing an unauthorized protocol for administering his
Interferon shots. Rush asserts that the medical personnel prepare the syringe outside his
view, thus placing him in danger of contracting HIV. Rush, however, fails to demonstrate
how the protocol of preparing the syringe outside of his view places him in any danger,
much less immediate danger, of contracting HIV. Regarding his lipoma growth, Rush
asserts that the growth is painful and that surgery is necessary. The record, however,
demonstrates that the lipoma growth is benign and does not constitute a serious medical
condition. Moreover, the surgical procedure is elective. The record also demonstrates
that Rush’s liver cirrhosis is being continuously monitored and treated with no indication
that the condition places him in danger of immediate irreparable harm. Furthermore,
Rush has failed to demonstrate that his atrophied shoulder is the type of serious medical
condition which places him in danger of immediate harm. Accordingly, Rush has not
established the elements necessary for the issuance of a preliminary injunction.
For the foregoing reasons, we will summarily affirm the orders of the District
Court. Rush’s motion for leave to file a supplement to his emergency preliminary
injunction is granted, and we have considered his supplement in rendering our decision.
Rush’s “Emergency Preliminary Injunction for Imminent Harm & TRO Motion” is
denied. Appellees’ motion to file appendices under seal is granted.
4