Vilayhong v. Santos

          MEMORANDUM AND ORDER

          STACI M. YANDLE UNITED STATES DISTRICT JUDGE

         This matter is before the Court for consideration of Plaintiff Manith Vilayhong's Motion for Temporary Restraining Order (“TRO Motion”) filed October 24, 2019. (Doc. 55). Pursuant to this Court's Order Granting Preliminary Injunction, entered on September 3, 2019 (Doc. 38), Plaintiff was referred to Dr. Joos, an ear, nose, and throat specialist, for evaluation and treatment of an unresolved bilateral ear infection. Dr. Joos recommended a course of treatment and re-evaluation “in a couple of weeks…” if symptoms of pain and drainage persist. (Doc. 58-3). Plaintiff now seeks further treatment from Dr. Joos for ongoing symptoms of pain and drainage. (Id.). He also seeks reassignment to a different institutional medical provider until these issues are resolved. (Id.).

         The Court construed Plaintiff's TRO Motion as a Motion for a TRO and/or Preliminary Injunction and ordered Defendants to respond by November 1, 2019. (Doc. 56). Defendant Santos filed a Response on October 30, 2019 (Doc. 58), and Plaintiff filed Replies/Supplements on November 1, 2019 and November 5, 2019 (Docs. 59 and 61).

         For the following reasons, set forth herein, Plaintiff's Motion for Temporary Restraining Order (Doc. 55) is GRANTED in part; Plaintiff's request for follow-up care with Dr. Joos is granted, and his request for assignment to a different institutional medical provider is denied.

         Background

         Plaintiff is an inmate at Centralia Correctional Center (“Centralia”). He suffers from chronic bilateral ear infections. (Doc. 14). Antibiotic treatment caused him to develop thrush. (Id.). Centralia's physician (Dr. Santos) and health care unit administrator (Nurse Nalewajka) allegedly delayed or denied him proper medical care for these conditions. (Id. at p. 12). At screening, the Court allowed him to proceed with a single Eighth Amendment claim against both individuals (Count 1). (Doc. 15).

         Plaintiff filed several motions for preliminary injunctive relief requiring the defendants to send him to an ENT for further evaluation and treatment of ongoing infection, drainage, and pain. (See Docs. 10, 12, 34). This Court granted his motions in an Order dated September 3, 2019, as follows:

Pursuant to Federal Rules of Civil Procedure 65(a) and (d), Defendants are HEREBY ORDERED to schedule an appointment on Plaintiff's behalf with an ear, nose, and throat specialist (“ENT”) for evaluation (and treatment if so recommended) of his bilateral ear infections, thrush, and related symptoms; said appointment to take place within 14 days of the date of this Order.

DEFENDANTS ARE FURTHER ORDERED to file a written notice advising the Court the date and time of Plaintiff's appointment with an ENT on or before September 17, 2019; Defendants shall advise the Court in the event of any change in the appointment date or time, indicating all steps taken to reschedule the appointment (with the same or alternative provider) and all steps taken to ensure compliance with this Order.

DEFENDANTS ARE FURTHER ORDERED to file a written notice advising the Court . . . what, if any, diagnosis and treatment plan was recommended for Plaintiff and all steps taken to implement the plan for treatment of his chronic ear infections, thrush, and related symptoms within fourteen (14) days after Plaintiff's appointment with an ENT.

(Doc. 38, pp. 3-4). Defendants scheduled Plaintiff's appointment with an ENT specialist for September 30, 2019 and took steps to carry out the treatment plan. Plaintiff nevertheless maintains that he is being denied adequate medical treatment.

         In his TRO Motion (Doc. 55) and Supplements (Docs. 59 and 61), Plaintiff asserts that Dr. Joos debrided both ears on September 30, 2019 and recommended a follow-up appointment if symptoms of pain and drainage persisted. (Doc. 55, p. 4). He alleges that during a visit with Dr. Santos on October 17, 2019, he complained of ongoing pain and drainage and that Dr. Santos probed his ears with a Q-tip and extracted blood and a “whitish-yellowish flaky discharge.” (Id. at pp. 4, 7-8). When Plaintiff requested a follow-up appointment with Dr. Joos to address his ongoing symptoms, Dr. Santos denied his request and assured Plaintiff that he just had excessive ear wax and nothing more. (Id.).

         On October 20, 2019, Plaintiff filed an emergency grievance complaining of ongoing pain and discharge from his ears and requesting a follow-up treatment with Dr. Joos. (Id. at pp. 7-8). The Warden agreed that the grievance presented an emergency and forwarded it to the health care unit for review. (Id. at pp. 5-6). However, the grievance was denied based on Dr. Santos' treatment of Plaintiff and a documented recommendation for follow-up care with the ENT in 6-8 weeks if symptoms persisted. (Id. at p. 5).

         At an appointment with Dr. Santos on October 24, 2019, Plaintiff again complained of pain. (Id. at p. 3). Dr. Santos examined Plaintiff's ears and told him they looked “clean.” (Id.). When Plaintiff requested another appointment with Dr. Joos, the request allegedly prompted Dr. Santos to become angry, ball his fists, and throw things across the room. (I ...