* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 13 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ARTHUR JOHNEL ALLOWAY,

Plaintiff-Appellee,

v. DR. TOMMY HODGE; DR. JEFFREY TROUT; DR. JOANN RYAN; JUDY WAKEN,

Defendants-Appellants. No. 02-7104 (D.C. No. 01-CV-104-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Defendants in this case appeal from the district co urt’s order denying their motion to terminate an injunction entered under the Prison Litigation Reform Act (PLRA). The injunction requires defendants to cont inue to administer plaintiff Arthur Alloway’s prescribed medical treatment until final resolution of Alloway’s action filed pursuant to 42 U.S.C. § 1983. Our jur isdiction arises under 28 U.S.C. § 1292(a)(1), and we affirm.

I. Alloway, an Oklahoma state prisoner, filed his § 19 83 complaint seeking relief for the alleged denial of prescribed medical treatment for his diagnosed liver disease. The facts leading up to the distric t court’s issuance of injunctive relief are well known to the parties and recounted in detail in the court’s September 21, 2001 order. In that order, the distr ict court denied Alloway’s request for examinations by two particular private physicians, as well as his request for a resumption of Actigall, a medication used to dissolve certain types of gallstones. Nevertheless, the court granted All oway’s request for resumption of his prescribed treatment of Oxycontin (a narcoti c), milk thistle, and vitamin C, finding that Alloway had shown a substantial likeli hood of success on his claim that defendants acted deliberately indifferent by d iscontinuing that treatment. The court stated:-3-

[W]ith respect to the requested treatments in the f orms of Oxycontin, Milk Thistle, and Vitamin C, the court finds plaint iff has met his burden for the issuance of a preliminary injunction . The evidence demonstrates that, in violation of Estelle [ v. Gamble, 429 U.S. 97 (1976)], he was not allowed to continue with his pr escribed treatment after transferring to his current facility, so ther e is a substantial likelihood of success on the merits of this claim. There is no dispute that plaintiff suffers from serious liver disease; the only question concerns the proper treatment. Plaintiff has been examined by Dr. Marlene Bynum and Dr. Barseloux at Griffin Memo rial Hospital, and both recommended Oxycontin, Milk Thistle, and V itamin C. Dr. Yarborough, the pain specialist, as would be expected, only made recommendations for plaintiff’s pain management. D r. Trout[] and Dr. Ryan apparently disagree with the private physi cians, but they have failed to articulate the medical rationale fortheir denial of these treatments which were allowed at a previous DOC fac ility. Aplt. App. at 130. The district court then made sp ecific findings concerning the remaining requirements for a preliminary injunction , stating that plaintiff will suffer irreparable harm if he is not allowed to con tinue the prescribed treatments and that the injunction will not cause damage to de fendants or be adverse to the public interest. The court concluded “[t]his tempo rary injunction is effective immediately and shall remain in force until further order of the court.” Id. at 131. Defendants did not appeal the court’s September 21, 2001 order. Instead, on October 19, 2001, defendants filed their motion to terminate the injunction pursuant to the PLRA. In that motion, defendants argued that the district court failed to make the additional findings mandated by the PLRA and codified at 18 U.S.C. § 3626, that the injunction is narrowly d rawn, extends no further than necessary, and is the least intrusive means necessary to correct the violation of the-4-

federal right. 18 U.S.C. § 3626(a)(1). Defendants also argued that, because the record presented only a difference of opinion b etween Alloway’s doctors, “there has been no finding that any of Plaintiff’s Federal rights were violated.” Aplt. App. at 132. At a hearing on May 23, 2002, defendants added thatthe district court’s failure to make the required findings under § 3626( a)(1), and its failure to make the order “final” pursuant to § 3626(a)(2), resulte d in the automatic termination of the injunction after ninety days. Defendants argue d that the statement in the court’s order that the injunction “shall remain in force until further order of the court” contradicted § 3626(a)(2)’s automatic expiration provision, but that, even if the court were to make the required findings aft er-the-fact, defendants would present evidence demonstrating that those findings could not be made. There was some confusion over the scope of the hearing, as Al loway’s counsel objected to the presentation of medical evidence going to the i ssue of deliberate indifference, an issue which had been previously briefed and liti gated. The magistrate judge ruled that defendants could present their evidence but limited it to issues arising after the preliminary injunction was granted on Sep tember 21, 2001. The magistrate judge stated: [T]he appropriate issue is whether or not the defen dant or the plaintiff’s condition has changed since the last he aring. I think I will allow you to call your witness to testify with regard to whether or not the–the administration of these drugs poses a dange r to him at the-5-

present point because of a change in his condition. I’m not going to allow a revisiting about whether or not this was th e right medical treatment to be ordered in the injunction of Septem ber of 2001. Aplt. App. at 146-47. The magistrate judge furtherruled that defendants could present evidence showing the risk or harm to the pr ison system by providing Alloway’s treatment. In her findings and recommendation dated May 30, 20 02, the magistrate judge recommended denying defendants’ motion to terminate the injunction. As to defendants’ claim that there had been no finding that any of Alloway’s federal rights were violated, the magistrate judge reviewedthe relevant evidence, including defendants’ evidence going to any adverse impact of Alloway’s treatment on the operation of the prison, and state d: [T]he court’s order granting the injunction express ly made a finding that the defendants were deliberately indifferent t o plaintiff’s serious medical needs. The issue is not simply a differenc e of opinion; instead, it concerns whether plaintiff’s establishe d treatment could be summarily halted without medical justification. Th roughout this litigation, the defendants have failed to offer a m edical rationale for discontinuing plaintiff’s treatments, but there has been ample evidence that the recommended treatments were appro priate and helpful. Id. at 225 (citation omitted). As to defendants’ claim that the order granting the preliminary injunction did not make the PLRA’s required findings, the magi strate judge stated that “while the statute was not quoted in the order, the substance of the order included-6-

the requisite findings.” Id. Accordingly, the magistrate judge concluded that “t he injunction did not automatically terminate after 90 days.” Id. at 226. The magistrate judge also made findings pursuant to 18 U.S.C. § 3626(b)(3), which provides that ongoing prospective relief shall not terminate if the court makes written findings that the relief remains necessary to correct an ongoing violation of a federal right, extends no further than necessa ry, and that the prospective relief is narrowly drawn and the least intrusive me ans to correct the violation. After reviewing defendants’ objections, the distric t court adopted the magistrate judge’s recommendation to deny defendant s’ motion. In its order, the court also made findings pursuant to the PLRA “thatits September 21, 2001, issuance of the preliminary injunction requiring th e treatment of Plaintiff with Oxycontin, Vitamin C, and Milk Thistle extends no f urther than is necessary to correct the violation of Plaintiff’s constitutional right to adequate medical care, it is narrowly drawn, and it is the least intrusive means to correct the violation.” Aplt. App. at 245-46 (citing § 3626(a)(1)). The co urt also concluded that it complied with § 3626(a)(2)’s mandate to make the or der “final” during the ninety-day period, stating “that while no subsequent order has contained language making the September 21, 2001, preliminary injuncti on ‘final’ before the expiration of the 90-day period, the September 21, 2001, order itself contains-7-

functionally equivalent language mandating that the preliminary injunction ‘shall remain in force until further order of the court.’” Id. at 246. On appeal, defendants argue that the district courtdid not comply with the PLRA, and that the preliminary injunction expired o n or about December 20, 2001, placing the burden on Alloway to continue to prove that injunctive relief was still necessary. According to defendants, the district court’s later findings were impermissible retroactive attempts to comply w ith the statute. Defendants also argue that, for several reasons, the district court erred when it refused to terminate the preliminary injunction. “The scope o f appellate review of a district court’s discretionary grant of a preliminary injunc tion is narrow. Unless the district court abuses its discretion, commits an error of law, or is clearly erroneous in its preliminary factual findings, the appellate court may not set aside the injunction.” Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268, 1270 (10th Cir. 1988).

II. Clearly, the PLRA requires that district courts iss uing prospective relief in cases involving prison conditions make certain find ings in order for that relief to conform to the law. Section 3626(a)(1) states: Prospective relief in any civil action with respectto prison conditions shall extend no further than necessary to correct t he violation of the Federal right of a particular plaintiff or plaintif fs. The court shall-8-

not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal rights, and is the least intrusive means necessary to correct the violation of the Fed eral right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice syste m caused by the relief. 18 U.S.C. § 3626(a)(1). Section § 3626(a)(2), whic h specifically addresses preliminary injunctive relief, essentially repeats the mandate, stating that [p]reliminary injunctive relief must be narrowly dr awn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive mean s necessary to correct that harm. The court shall give substantia l weight to any adverse impact on public safety or the operation of a criminal justice system . . . . 18 U.S.C. § 3626(a)(2). That section, however, add s the following language: “Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the fi ndings required under subsection (a)(1) for the entry of prospective relief and make s the order final before the expiration of the 90-day period.” Id. Section 3626(b)(2) provides that defendants are entitled to immediate termination of prospectiv e relief granted without the required findings, subject to the following limitat ion in subsection (3): Prospective relief shall not terminate if the courtmakes written findings based on the record that prospective relie f remains necessary to correct a current and ongoing violation of the F ederal right, extends no further than necessary to correct the vi olation of the Federal right, and that the prospective relief is n arrowly drawn and the least intrusive means to correct the violation.-9-

18 U.S.C. § 3626(b)(3). Section 3626(e)(1) require s courts to rule promptly on motions to terminate prospective relief, a requirem ent bolstered by § 3626(e)(2), which provides for an automatic stay of prospective relief after limited periods of time if the court has not ruled on the motion. The stay is mandatory, and the district court may not use its equitable power to enjoin it. Miller v. French, 530 U.S. 327, 340 (2000). Defendants’ argument that the preliminary injunctio n automatically expired after ninety days requires this court to review the sufficiency of the district court’s findings under the PLRA. In doing so, we n ote that the fundamental purpose of the PLRA sections relevant to this case is to ensure that prospective relief, in fact, is narrowly drawn, extends no furt her than necessary, and is the least intrusive means necessary to correct the harm , not merely to ensure that the district court uses these particular words to justi fy an otherwise untenable injunction. Nevertheless, the statute is clear that, unless a district court “makes the findings required under subsection (a)(1 ) for the entry of prospective relief and makes the order final before the expirat ion of the 90-day period,” a preliminary injunction automatically expires. 18 U.S.C. § 3626(a)(2). The specific reference to the required findings in this section, along with § 3626(b)(2)’s mandate of immediate termination of prospective relief granted in the absence of those findings, emphasizes the need for a district court to-10-

sufficiently articulate the additional findings wit h some specificity so that there is no doubt that the court considered the relevant fac tors in granting a preliminary injunction. While later review of the substance of the order may reveal that the prospective relief, in fact, is narrowly drawn, ext ends no further than necessary to correct the violation, and is the least intrusive m eans necessary to correct that violation, the relevant statutory passages reveal t hat it was Congress’s intent that a district court make these findings explicit to de monstrate that the court considered the appropriate factors in a timely mann er. The district court in the present case discussed th e traditional factors used for evaluating motions for preliminary injunction and made specific findings regarding those factors, but it made no specific fi ndings concerning the additional requirements found in § 3626 of the PLRA. Because it lacks an explicit reference to the statutory findings, or any other language wh ich could reasonably be said to address those findings, the order leaves us to doub t whether the district court considered any of the PLRA’s additional factors whe n crafting the preliminary injunction. Accordingly, because the order grantin g the preliminary injunction did not contain the particular findings required by§ 3626, that injunction expired automatically after ninety days.-11- III. This court is thus left with the question of what s ignificance, if any, the hearing and the additional findings made by the mag istrate judge and district court had on this proceeding. The implication of d efendants’ argument on appeal is that we should ignore these later events, forcin g Alloway to file a new motion for preliminary injunction. We refuse to do so, ho wever, as we conclude that Alloway effectively renewed his motion by arguing the merits of continuing the prospective relief at the hearing on defendants’ mo tion to terminate the injunction. Because defendants did not appeal the preliminary injunction, the magistrate judge limited defendants’ evidence at th e hearing to changes in the parties’ conditions after September 21, 2001. Evenif the magistrate judge erred in restricting the scope of evidence to be admitted , defendants have failed to demonstrate any prejudice from the restriction. Th e magistrate judge otherwise gave defendants latitude in presenting evidence, an d after reviewing all the evidence, the magistrate judge concluded that preli minary prospective relief for Alloway should continue. Subsequently, the magistr ate judge and the district court judge each made findings that were sufficient ly articulated to demonstrate that the court considered the relevant factors unde r the PLRA. Thus, although the original preliminary injunction had technically exp ired on or about December 20, 2001, the district court effectively entered a new injunction, fully compliant with-12-

the PLRA, on July 18, 2002. “Nothing in the [PLRA] limits the number of times a court may enter preliminary relief.” Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001). The magistrate judge’s conclu sion that “the substance of the [September 21, 2001] order included the requisite f indings,” Aplt. App. at 225, was in error. Nevertheless, because we conclude th at defendants have not sufficiently demonstrated prejudice, and in light o f the court’s hearing and subsequent findings, that error is harmless.

IV. Defendants also argue that the injunction itself de monstrates an abuse of discretion. Defendants point to some additional it ems of evidence that “make it imperative that the Preliminary Injunction be termi nated, both for the safety of the Plaintiff and the entire corrections system.” Aplt . Br. at 14. This new evidence was presented to the magistrate judge, who nonethel ess recommended that the injunction continue. “Under the abuse of discretio n standard[,] a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (quotation omitted). M oreover, “[a] district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgement.” Coletti v. Cudd Pressure Control, 165 F.3d-13-

767, 777 (10th Cir. 1999) (quotation omitted). Aft er carefully reviewing the record in this case, we see nothing to suggest thatthe district court acted unreasonably in discounting defendants’ newly disco vered evidence in this case. The injunction does not prevent the prison from tak ing appropriate measures to prevent Alloway from abusing the medications, so lo ng as they are not withheld. Accordingly, the judgment of the district court is AFFIRMED.

Entered for the Court
Wade Brorby Senior Circuit Judge