Lambros v. English et al, No. 5:2017cv03105 - Document 19 (D. Kan. 2017)

Court Description: MEMORANDUM AND ORDER denying 7 Motion for Mandamus. Action is dismissed. Signed by U.S. District Senior Judge Sam A. Crow on 9/27/17. (msb)
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Lambros v. English et al Doc. 19 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS JOHN GREGORY LAMBROS, Plaint iff, vs. Case No. 17- 3105- SAC- DJW NI COLE ENGLI SH, Warden, USP- Leavenwort h, Defendant . MEMORANDUM AND ORDER On August 11, 2017, t he court filed it s order direct ing t he plaint iff “ t o com e forward wit h evidence, proffers and argum ent s t o show cause why his m ot ion for m andam us relief should not be prom pt ly denied for failure t o m eet t he required elem ent s of proof.” ECF# 15, p. 9. The plaint iff t im ely filed his response on August 25, 2017, ( ECF# 17) , and t he defendant t im ely filed her response on Sept em ber 8, 2017, ( ECF# 18) . The t im e for plaint iff t o file a reply has passed wit hout a filing. Wit h all relevant m at t ers before it , t he court is ready t o rule. The plaint iff recent ly sum m arized his act ion for m andam us relief as asking t he court t o order t he Bureau of Prisons ( “ BOP” ) t o have him t ransferred “ back t o t he Unit ed St at es Penit ent iary in Leavenwort h ( “ USP Leavenwort h” ) at t he conclusion of his parole- revocat ion hearing” and “ back t o his t reat ing physician” for his “ prescribed cancer t reat m ent .” ECF# 17, p. 1. I t is t he plaint iff’s posit ion t hat t he BOP’s failure t o t ransfer him back 1 Dockets.Justia.com would int erfere wit h his prescribed care and would am ount t o an int errupt ion of m edical care in violat ion of his right s under t he Eight h Am endm ent . The plaint iff’s response, as discussed lat er, shows som e shift in t heory away from needing t he care of a part icular physician and, inst ead, t oward doubt ing t he BOP’s int ent ions and plans for following t hrough wit h t he prescribed care during and aft er a t ransfer. I n it s show cause order, t he court looked past t he defendant ’s argum ent s on st anding and exhaust ion of adm inist rat ive rem edies and focused inst ead on t he part ies’ argum ent s whet her t he plaint iff’s allegat ions and available evidence show eligibilit y for m andam us relief. Specifically, t he plaint iff has t he burden t o est ablish: “ ( 1) t hat he has a clear right t o relief, ( 2) t hat t he respondent ’s dut y t o perform t he act in quest ion is plainly defined and perem pt ory, and ( 3) t hat he has no ot her adequat e rem edy.” Rios v. Ziglar, 398 F.3d 1201, 1206 ( 10t h Cir. 2005) ( cit at ion om it t ed) . Warden English was asking for dism issal because t he plaint iff is wit hout a const it ut ional right t o be placed in a part icular correct ional facilit y, because t he BOP enj oys broad discret ion in designat ing facilit ies for prisoners, and because t he plaint iff cannot show t he lack of ot her available and t im ely rem edies. The plaint iff was defending t hat his claim was not t ied t o choosing facilit ies but t o ret aining his t reat ing physician and t hat t he BOP has a clear dut y not t o violat e his right t o receive prescribed m edical care from his current physician. As part of t he proceedings, t he court received and 2 reviewed t he declarat ion of Jason Clark, M.D., t he m edical officer for USP Leavenwort h, who was knowledgeably inform ed about Mr. Lam bros’ condit ion and ongoing care. From t he plaint iff’s current t reat ing physician, Dr. Mizrahi, t he court review ed a docum ent signed by him and ent it led “ St andard of Care Rect osigm oid Cancer Follow up” which described t he visit s and t est s prescribed for t he plaint iff for t he first t wo years, for t he t hird and fourt h years, and for t he fift h year. ECF# 14- 1, p. 3. Dr. Mizrahi concluded wit h, “ Any qualified physician can perform t he St andard of Care follow up t reat m ent ; however, it would be best by a Colorect al Surgeon.” I d. I n t hat order, t he court recognized a cent ral issue was whet her t he plaint iff could m ake t he legal and fact ual bases t o an act ionable Eight h Am endm ent claim for needing t o see a part icular t reat ing physician near USP Leavenwort h for follow- up visit s aft er cancer surgery or whet her t his case involved no m ore t han t he discret ion and professional m edical j udgm ent of prison officials t o select an appropriat e physician near anot her USP facilit y in following t hrough wit h t he plaint iff’s prescribed post - surgical care and screening. ECF# 15, p. 6. The court offered t his analysis based on t he record as it was at t he t im e: Based on t he follow- up st andard of care prescribed by Dr. Mizrahi, t he m edical need of t he plaint iff m eet s t he obj ect ive t est of seriousness. Dr. Mizrahi’s let t er also est ablishes t hat for purposes of t he subj ect ive com ponent , t he plaint iff’s follow- up t reat m ent need not be done by Dr. Mizrahi only, but t hat any qualified physician could perform it wit h a preference for “ a” colorect al surgeon. ECF# 14- 1, p. 3. The plaint iff’s desire for “ t reat m ent by a specialist is, . . ., insufficient t o est ablish a const it ut ional violat ion.” Ledoux v. Davies, 961 F.2d 1536, 1537 ( 10t h 3 Cir. 1992) ; see Duffield v. Jackson, 545 F.3d 1234, 1239 ( 10t h Cir. 2008) . I t is t rue t hat “ int ent ional int erference w it h prescribed t reat m ent m ay const it ut e deliberat e indifference.” I d. There are no subst ant ive offers of proof or evidence t hat t he prescribed m edical t reat m ent here is t hat for all of t he follow- up visit s t he plaint iff m ust be seen and evaluat ed by only Dr. Mizrahi or by only a colorect al surgeon. I nst ead, t he st andard of care let t er produced by Dr. Mizrahi shows ot herwise. I n sum , t he m edical evidence of record present ly is uncont rovert ed in showing no subj ect ive com ponent t o t he plaint iff’s Eight h Am endm ent claim . The m edical opinion of record is t hat t he BOP can t ransfer t he plaint iff t o anot her facilit y and can provide t he st andard of care prescribed for t he plaint iff. The plaint iff’s m ot ion asks t he court t o speculat e t hat t he BOP will not be able t o m eet t his st andard of care due t o t he possibilit y of delay associat ed wit h any t ransfer and due t o not m aking concret e plans for such t reat m ent in advance of any t ransfer. Not only are t hese argum ent s m ere speculat ion, but t he plaint iff is wit hout any com pelling evidence t hat he is wit hout an adequat e rem edy in t he event of a delay. I ndeed, t here is no m edical evidence of record showing t hat t he plaint iff is facing a subst ant ial risk of harm should t here be delay of any lengt h. Moreover, t here is not hing of record t o show t hat t he defendant has failed or will fail t o t ake reasonable m easures necessary t o abat e any subst ant ial risk of harm . On t he present st at e of t he evident iary record, t he court declines t o order an im m ediat e hearing on t he plaint iff’s m ot ion and furt her declines t o order any t ransfer based on t he need for a hearing. I nst ead, t he court orders t he plaint iff t o com e forward wit h evidence, proffers and argum ent s t o show cause why his m ot ion for m andam us relief should not be prom pt ly denied for failure t o m eet t he required elem ent s of proof. ECF# 15, pp. 7- 9. Re spon se of M r . La m br os The plaint iff charact erizes t he defendant ’s evidence of record as first , “ general st at em ent s about t he BOP’s abilit ies t o provide care in t he abst ract , not as it pert ains t o Mr. Lam bros.” ECF# 17, p. 2. And t hese “ general st at em ent s,” in t he plaint iff’s opinion, assum e t he BOP will follow it s 4 own procedures whet her or not it has t he abilit y t o do so. The plaint iff asks t he court t o rej ect t hese general st at em ent s and t he underlying assum pt ion based on I nspect or General’s crit ical report s and ot her st udies done on t he BOP’s healt h- care syst em t hat were cit ed in Judge Posner’s dissent in Unit ed St at es v. Rot hbard, 851 F.3d 699, 704- 06 ( 7t h Cir. 2017) ( Holding t hat a 24m ont h sent ence of incarcerat ion was not unreasonable despit e t he defendant ’s diagnosis of leukem ia and his need for a prescript ion drug not found on t he BOP’s drug form ulary list ) , pet it ion for cert . filed, No. 17- 297 ( Aug. 22, 2017) . The plaint iff would have t he court find t hat t he obj ect ive evidence shows t he BOP will not follow t hrough and provide t he appropriat e m edical care he needs. As for case- specific evidence, t he plaint iff point s t o t he BOP’s adm ission t hat t he plaint iff should have been m oved t o a Level- 3 facilit y aft er his operat ion, but he rem ained at USP Leavenwort h, a Level- 2 facilit y, for six m ont hs and has now t ransferred t o t he Federal Transfer Cent er in El Reno, Oklahom a, anot her Level- 2 facilit y. The plaint iff opines t hat a delay in his t reat m ent is a “ life- t hreat ening” risk because his abilit y t o survive a recurrence depends in part on early det ect ion. ECF# 17, p. 7. He likewise offers t hat t his risk can be abat ed only if t he BOP develops a plan for his “ care at what ever facilit y” decided upon by t he BOP and t hat t his has not been done already shows t he BOP will not adequat ely deal wit h t he risk of delayed det ect ion. I d. at pp. 7- 8. The plaint iff says t here is no evidence t hat t he physicians now caring for him at t he t ransfer cent er even have 5 access t o his m edical records. As for an adequat e alt ernat ive legal rem edy, t he plaint iff denies t here is any and repeat s his opinion t hat “ a delay in his m edical care would likely result in t he undet ect ed ret urn of his cancer, which would put him at subst ant ial risk of deat h. “ I d. at p. 9. The plaint iff cit es general st at em ent s from t he Mayo Clinic’s websit e on t he diagnosis and t he sym pt om s and causes of colon cancer. I d. at 10. Re spon se of W a r de n En glish The defendant Warden English updat es us as t o Mr. Lam bros being current ly housed at t he Federal Transfer Cent er in El Reno, Oklahom a, in ant icipat ion of his parole revocat ion hearing present ly scheduled for Oct ober 9, 2017. ECF# 18, p. 1. The defendant challenges t he plaint iffs’ “ broad sweeping” generalizat ions about t he BOP’s m edical care of inm at es as insufficient t o j ust ify m andam us relief for prospect ive m edical care. The defendant point s t o her subm it t ed expert m edical evidence t hat shows t he plaint iff has no “ subj ect ive com ponent ” t o his Eight h Am endm ent claim . The defendant also subm it s t he declarat ion of Dr. George Pet ry, clinical direct or at t he El Reno Transfer Cent er, who has overseen t he plaint iff’s m edical care at t his facilit y. Dr. Pet ry declares t hat t he plaint iff’s m edical records were reviewed, t hat he has been seen by m edical providers on five occasions since his arrival, and t hat Dr. Pet ry has had “ m ult iple inform al visit s wit h inm at e Lam bros t o discuss his t reat m ent and address any of his concerns.” ECF# 18- 1, p. 2. Dr. Pet ry also not ed t hat Mr. Lam bros is scheduled for his 6 next blood t est ing CEA during t he week of Sept em ber 25t h which will be followed up wit h a m eet ing and discussion of result s. The defendant not es t he plaint iff has no evidence t hat he is not receiving adequat e m edical care. I nst ead, t he record is plain t hat t he plaint iff has received t he necessary m edical care for screening and t reat m ent of post - operat ive cancer in rem ission. There is not hing indicat ed in t his case t o show t hat t he plaint iff will not cont inue t o receive t he sam e adequat e m edical care upon t ransfer, and t he plaint iff’s own speculat ion t o t he cont rary does not m eet his burden. The defendant not es t hat t he plaint iff’s argum ent s and broad at t acks on t he BOP’s operat ions or general references t o colon cancer t reat m ent are not subst ant ive evidence im pact ing t he court ’s conclusion t hat , “ t here is not hing of record t o show t hat t he defendant has failed or will fail t o t ake reasonable m easures necessary t o abat e any subst ant ial risk of harm .” ECF# 18, p. 6. The defendant asks t he court t o find t hat t he plaint iff has failed t o sat isfy t he st rict requirem ent s for m andam us relief, t o deny t he plaint iff’s m ot ion, and t o dism iss t he act ion. An a lysis a n d H oldin g The plaint iff is consist ent in asking t hat t his court exercise it s m andam us power and so order t he BOP t o t ransfer him back t o USP Leavenwort h where he can rem ain under t he care of his current t reat ing physician and can avoid t he risk of int errupt ing his current ly prescribed m edical t reat m ent . As already discussed above, t he court ’s show cause 7 order laid out it s findings regarding t he plaint iff’s lack of proof on t he required elem ent s for m andam us relief on his Eight h Am endm ent claim . The plaint iff does not challenge t he subst ance and relevance of t he evidence on which t hose findings were based. Nor does he t ake issue direct ly wit h t he sufficiency of t hat evidence by it self t o sust ain t he court ’s findings. I nst ead, t he plaint iff would have t he court reconsider, recast , and even rej ect t he reliabilit y of t he m edical opinions of t hese different physicians in light of invest igat ive report s on t he BOP’s general pract ices of m edically caring for it s inm at es. At m ost , t hese report s offer st at ist ical generalizat ions pert inent t o policy m aking, but t hey lack any specific connect ion t o t he part icular m edical care given or t o be given t o t he plaint iff here. At m ost , t hese st at ist ical generalizat ions m ay ent it le a court t o indulge som e skept icism in j udging any blanket represent at ions from t he BOP about always providing inm at es wit h adequat e and appropriat e m edical care. Such evidence, however, cannot subst it ut e for or rebut t he act ual m edical evidence and t he t reat ing physicians’ opinions on t he care given t o t he plaint iff and on t he m edical abilit y of ot her facilit ies and physicians t o provide t he sam e care upon an appropriat e t ransfer. The plaint iff asks t he court t o grant him relief because he believes t hese invest igat ive report s j ust ify a lit igable concern over whet her t he BOP will do what it says. The court declines t he plaint iff’s request t o open t his door t o lit igat ion for every inm at e wit h a serious m edical condit ion 8 t o quest ion t he BOP’s int ent ions and t hereby st at e an Eight h Am endm ent claim . The evidence of record shows t hat t he BOP has provided real m edical care adequat e for t he plaint iff’s condit ion. The plaint iff’s housing in a Level- 2 facilit y like t hat at USP Leavenwort h, which rem ains accept able and preferable t o t he plaint iff at t his point , does not evidence any int ent ion or pract ice against providing adequat e m edical care of t he plaint iff. The plaint iff apparent ly does not desire a t ransfer t o a Level- 3 facilit y and does not at t em pt any showing t hat a delay in t his t ransfer poses any risk of subst ant ial harm . The act ual m edical evidence of record shows t he BOP’s awareness, concern, and int ent ion t o care for t he plaint iff’s condit ion. The plaint iff’s worries and anxiet ies based on t hese invest igat ive report s and on general st at em ent s about t he m edical care of colon cancer sim ply do not creat e a lit igable concern t hat t he BOP’s handling of his m edical care during and aft er a t ransfer will necessarily pose a subst ant ial risk of harm t o him . Nor is m andam us relief necessary or appropriat e j ust t o m eet t he plaint iff’s personal wishes for his fut ure m edical care t o be exact ly t he sam e as what he has received and t o com e wit h t he guarant ee of no delay in any degree or respect . All of t he evidence of record point s t o t he BOP’s ongoing effort t o provide m edical care t hat is adequat e, reasonable, and appropriat e consist ent wit h t he post - surgical care and screening prescribed by Dr. Mizrahi. 9 The court incorporat es from it s prior order t he cont rolling law and relevant findings based on t he m edical evidence t hat cont inues t o st and unrefut ed. These findings sust ain t he conclusions t hat t he BOP is aware of Dr. Mizrahi’s prescribed post - operat ive care and screening, has followed Dr. Mizrahi’s recom m endat ions, and has plans t o cont inue t his care during t he plaint iff’s current t ransfer and any fut ure t ransfers. The court is likewise persuaded from t he evidence t hat t he BOP is equipped and int ent ioned t o consider t he plaint iff’s m edical care needs in any fut ure t ransfers. Moreover, t he m edical evidence of record dem onst rat es t hat t he BOP has t he facilit ies, personnel, and capabilit y t o cont ract wit h qualified public physicians t o provide t he plaint iff wit h all t he care recom m ended by Dr. Mizrahi. The plaint iff sim ply has not carried his burden of showing he is clearly ent it led t o m andam us relief, as his worries do not j ust ify any court - ordered relief at t his t im e and any arguable concerns over delayed det ect ion do not present t hem selves as perem pt ory m at t ers out side t he discret ion and professional m edical j udgm ent of prison m edical officials. The plaint iff has not shown t hrough relevant m edical evidence t hat he faces a subst ant ial risk of harm from t he m anner in which t he BOP is planning and execut ing any of his t ransfers. The plaint iff’s desire for t reat m ent by a specialist or by a part icular doct or is “ insufficient t o est ablish a const it ut ional violat ion.” Ledoux v. Davies, 961 F.2d 1536, 1537 ( 10t h Cir. 1992) ; see Duffield v. 10 Jackson, 545 F.3d 1234, 1239 ( 10t h Cir. 2008) . I t is t rue t hat “ int ent ional int erference wit h prescribed t reat m ent m ay const it ut e deliberat e indifference.” I d. The plaint iff has not com e forward wit h any proof or evidence t hat t he m edical t reat m ent prescribed or recom m ended for him m ust be conduct ed by only Dr. Mizrahi or by anot her colorect al surgeon. The st andard of care let t er from Dr. Mizrahi shows ot herwise. The court rem ains convinced t hat t he plaint iff’s claim for m andam us relief would require t his court t o speculat e t hat t he BOP will not be able t o m eet t his st andard of care due t o poor int ent ions, poor execut ion, or poor planning. The plaint iff’s evidence is not of t he kind or qualit y t o carry t his significant burden. The plaint iff offers not hing but conj ect ure t hat any delay wit h any of t he screening m easures would creat e a subst ant ial risk of harm t o him . Nor can t his conj ect ure sust ain t he plaint iff’s burden of showing he is wit hout an adequat e rem edy in t he event of a possible delay. Because t he plaint iff has failed t o m eet t he st rict requirem ent s for m andam us relief, t he court hereby denies t he plaint iff’s m ot ion and dism isses t he act ion. I T I S SO ORDERED. Dat ed t his 27 t h day of Sept em ber, 2017, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 11