2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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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BLD-233 NOT PRECEDENTIAL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
 To the extent that Rush seeks to appeal from the District Court’s October 31, 2007 1

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.

2

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). For the reasons 1

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
3

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
4

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.