United States District Court, D. Oregon
Michael W. Mosman, United Stares District Judge
prisoner civil rights case comes before the Court on
Plaintiff's Motion for Preliminary Injunction (#23)
seeking an immediate change in his heart medication and heart
surgery. Where Plaintiff fails to establish either a
likelihood of success on the merits of his Eighth Amendment
medical claim, or a likelihood that he will suffer
irreparable injury in the absence of an injunction, the
Motion for Preliminary Injunction is denied.
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest."
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 20 (2008). A plaintiff may also qualify for a
preliminary injunction by showing that there are serious
questions going to the merits of his claim and that the
balance of hardships tips sharply in his favor, so long as
the other Winter factors are also met. Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127. 1134-35
(9th Cir. 2011). A request for a mandatory
injunction seeking relief well beyond the status quo is
disfavored and shall not be granted unless the facts and law
clearly favor the moving party. Stanley v. Univ. of S.
Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994) .
asserts that he has been diagnosed with Degenerative Valvular
Heart Disease ("DVHD"). He claims that Dr. Jeffery
M. Lehr, an outside physician, provided him with a treatment
plan consisting of an unidentified medication and surgery.
According to Plaintiff, he has repeatedly asked Defendants to
implement Dr. Lehr's treatment plan but they have
refused. Plaintiff fears that the delay in receiving his
desired medication and surgical treatment are not only
exposing him to unnecessary pain, but also a significant risk
order to prevail on a claim of the denial of adequate medical
care in violation of the Eighth Amendment, Plaintiff must
establish that Defendants were deliberately indifferent to
his "serious" medical needs. Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000); Doty v.
County of Lassen, 37 F.3d 540, 546 (9thCir.
1994). Deliberate indifference is shown only where an
official "knows of and disregards an excessive risk of
inmate health and safety . . . ." Farmer v.
Brennan, 511 U.S. 825, 835 (1994) .
Beamer, a Corrections Physician Specialist at Plaintiff's
prison, does not dispute that Plaintiff suffers from DVHD,
and agrees that he "will need to have his heart valve
replaced in the near future." Declaration of Leland
Beamer, p. 2. In fact, Dr. Beamer recommended Plaintiff for
referral to a cardiologist for further evaluation.
Id. However, he is of the opinion that, "[a]t
this point in time, there are no signs of deterioration or
anything else that would cause me concern that Mr.
McCright's surgery needs to be performed immediately.
Eighth Amendment claim is based upon what Plaintiff
represents to be a difference of medical opinion between Dr.
Lehr and Dr. Beamer. A difference of medical opinion between
doctors over medical treatment does not amount to deliberate
indifference to Plaintiff's serious medical need.
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Likewise, a dispute between a prisoner and prison officials
over the necessity for or extent of medical treatment does
not raise a claim under § 1983. See, e.g., Sanchez
v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shields
v. Kunkel, 442 F.2d 409, 410 (9th Cirl97l); Mayfield
v. Craven, 433 F.2d 873 (9th Cir. 1970); McKinney v.
People of State of Cal., 427 F.2d 160 (9th Cir. 1970) .
Plaintiff therefore fails to demonstrate a likelihood of
success on the merits of his Eighth Amendment claim.
only does Plaintiff fail to demonstrate a likelihood of
success on the merits of his claim, but he has not
established that he is likely to suffer irreparable injury if
a preliminary injunction does not issue. Although he fears
his DVHD might be fatal if it is not immediately treated in
the manner suggested by Dr. Lehr, the medical records
Plaintiff submits with his Declaration do not support this
contention. See Declaration of Larry McCright (#24).
The Court is left with Dr. Beamer's Declaration that
there are no signs of deterioration or that surgery needs to
be performed immediately, Beamer Declaration (#28), p. 2, a
view that is supported by Plaintiff's own submissions
where his April 25, 2018 echocardiographic study (performed
by Dr. Lehr) concludes, "There are no significant
changes noted in comparison to the previous echocardiographic
study, done 9/1/2017." McCright Declaration (#24),
Exhibit B, p. 11.
Plaintiff fails to establish either a likelihood of success
on the merits of his Eighth Amendment claim or a likelihood
of irreparable injury in the absence of preliminary
injunctive relief, his Motion lacks merit.
Motion for Preliminary ...