1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PENDLETON DIVISION 

JAMES LEROY HERRINGTON, 

 No. 2:16-cv-00680-AC 

Plaintiff, 

v. OPINION AND ORDER 

DR. THOMAS BRISTOL, et al., 

 Defendants. 

MOSMAN, J., 

Plaintiff James Leroy Herrington comes before the Court seeking mandatory injunctions. 

For the reasons set forth below, I DENY Plaintiff’s Motions for Mandatory Injunctions [64, 77]. 

BACKGROUND 

Plaintiff is a prisoner at Snake River Correction Institution (“SRCI”). Plaintiff has filed a 

42 U.S.C. § 1983 claim against SRCI medical staff, alleging a violation of his Eighth 

Amendment guarantee against cruel and unusual punishment. While incarcerated, Plaintiff 

experienced swelling and pain in two of his toes. He received medicine for his pain and 

underwent x-rays, bloodwork, and a nerve conduction study. When Plaintiff continued to 

experience pain, an SRCI doctor recommended that Plaintiff see a podiatrist. The SRCI’s 

Therapeutic Level of Care Committee (“TLCC”) approved the referral, subject to Plaintiff 

signing a CD28 form which would authorize payment from Plaintiff’s prison trust account to 
2 – OPINION AND ORDER 

cover all expenses associated with seeing the podiatrist. Plaintiff would not sign the CD-28 and 

has not yet seen a podiatrist. 

Plaintiff alleges a right to see a specialist for his injuries and claims that the SRCI 

medical staff has committed extortion by telling Plaintiff he must pay for a podiatrist, expenses, 

follow-up treatments, and transportation for any visit. Plaintiff asks the court to order that he be 

evaluated by an outside specialist paid for by SRCI, and asks for a preliminary injunction 

preventing the court from issuing an opinion and order in this case before Plaintiff is seen by a 

specialist.1

LEGAL STANDARD 

In the Ninth Circuit, a court may issue a preliminary injunction if it finds that: “(1) the 

[moving party] will suffer irreparable injury if injunctive relief is not granted, (2) the [moving 

party] will probably prevail on the merits, (3) in balancing the equities, the [non-moving party] 

will not be harmed more than [the moving party] is helped by the injunction, and (4) granting the 

injunction is in the public interest.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 

1994) (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670, 674–75). Alternatively, a court 

may issue a preliminary injunction if the moving party demonstrates a combination of the 

possibility of irreparable injury and probable success on the merits. Id. 

While a preliminary injunction is designed to preserve the status quo, a mandatory 

injunction “that goes well beyond simply maintaining the status quo pendente lite is particularly 

disfavored.” Stanley, 13 F.3d at 1319 (quoting Anderson v. United States, 612 F.2d 1112, 1114 

 

1 Plaintiff filed a Motion for Mandatory Injunction [64] on May 26, 2017, accompanied by 

Plaintiff’s Declaration [65] in which he explained what he was requesting in his motion. 

Plaintiff then filed a Second Motion for Mandatory Injunction [77] on August 4, 2017, not 

accompanied by further explanation. Because both motions contain the same language, I am 

addressing the requests for injunctive relief in a single opinion. 
3 – OPINION AND ORDER 

(9th Cir. 1979) (internal quotation marks omitted). “When a mandatory preliminary injunction is 

requested, the district court should deny relief ‘unless the facts and law clearly favor the moving 

party.’” Id. “Mandatory injunctions are generally not granted unless extreme or very serious 

damage will result and are not issued in doubtful cases.” Marlyn Nutraceuticals v. Mucos 

Pharma GmbH & Co., 571 F.3d 873, 879 (2011). 

DISCUSSION 

I. Preliminary Injunction 

Plaintiff requests a preliminary injunction preventing a final order on his claim until he 

sees an outside specialist. To qualify for injunctive relief, the moving party must first show that 

it will suffer irreparable injury if injunctive relief is not granted. Stanley, 13 F.3d at 1319. 

Plaintiff has failed to meet that burden. He has been treated by medical staff at SRCI multiple 

times, received diagnostic tests, and has been offered the option to pay for a visit to see a 

podiatrist. SRCI medical staff and TLCC have categorized Plaintiff’s request to see a podiatrist 

as “medically acceptable but not medically necessary care and treatment.” Def.’s Resp. to Pl.’s 

Mots. for Mandatory Inj. [163] at 3; Or. Admin. R. 291-124-0041 (1)–(8) (2018). Based on this 

categorization, the TLCC concluded that Plaintiff would be required to pay for the expenses of 

seeing a podiatrist. 

Plaintiff complains that SCRI seeks to require him to pay for his treatment from a 

podiatrist. He has not, however, shown or even argued that requiring him to pay for this 

treatment would prevent him from receiving care. Charging a prisoner fees for medical care 

does not violate the Eighth Amendment unless it prevents him receiving medical care. See 

Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985) (per curiam). 

Accordingly, Plaintiff has not shown harm that would amount to irreparable injury and has not 
4 – OPINION AND ORDER 

met his burden for a preliminary injunction. 

II. Mandatory Injunction 

Plaintiff next requests a mandatory injunction ordering SRCI to send him to see a 

podiatrist and ordering SRCI to pay all associated costs. The standard for a mandatory 

injunction is more exacting than that for a preliminary injunction. Martin v. Int’l Olympic 

Comm., 740 F.2d at 675. Plaintiff’s must show not only that he is likely to succeed on the 

merits of his case, but also that he is likely to suffer very serious damage should the mandatory 

injunction not be granted. As noted above, requiring a prisoner to pay for his own medical care 

does not violate the Eighth Amendment unless it prevents him from receiving medical 

care. See Shapley, 766 F.2d at 408. Plaintiff fails to allege any damage that would result from 

requiring him to pay aside from the cost itself. That harm alone is insufficient to show his 

likelihood of success on the merits of his claim or that he will suffer serious damage should he 

pay for his podiatrist visit. Plaintiff has failed to meet his burden for a mandatory injunction. 

CONCLUSION 

For the reasons stated above, Plaintiff’s Motions for a Mandatory Injunction [64, 77] are 

DENIED. 

IT IS SO ORDERED. 

DATED this ______ day of September, 2018. 

 

____________________________ 

MICHAEL W. MOSMAN 

Chief United States District Judge 

 /s/Michael W. Mosman

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