United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
case comes before the court on the plaintiff John Gregory
Lambros' motion for mandamus relief under 28 U.S.C.
§ 1361. ECF# 7. Mr. Lambros originally filed a pro
se petition for writ of mandamus and then filed separate
motions for a temporary restraining order and preliminary
injunction upon the allegation that the Bureau of Prisons
(“BOP”) planned to transfer him to another
facility causing a disruption in his prescribed cancer
treatment. ECF## 1 and 5. The court found the pro se
motions to be moot based on subsequent medical treatment
given to Mr. Lambros and based on a subsequent mandamus
motion filed by counsel for Mr. Lambros. ECF# 9. In the
pending mandamus motion, (ECF# 7), it is alleged the
defendant Warden Nicole English has refused to agree that
following his parole revocation hearing in El Reno, Oklahoma,
Mr. Lambros will be returned to the United States
Penitentiary in Leavenworth, Kansas (“USP
Leavenworth”) “so that he [can] . . . continue
under his doctor's care and attend his other scheduled
screenings.” Id. at p. 2. The plaintiff
characterizes the central issue of his motion to be whether
the BOP's refusal to transfer him back to USP Leavenworth
after the revocation hearing “constitute[s] an
intentional interference with prescribed medical
treatment?” Id. at p. 3. As for relief, the
plaintiff first asks the court to order his transfer back to
USP Leavenworth following his revocation hearing for
expedited briefing and hearing of his current motion.
English responds raising challenges to standing, the failure
to exhaust administrative remedies, the unavailability of
relief under the Mandamus Act, and the failure to allege a
prospective constitutional violation. The Warden attaches the
declaration of Jason Clark, M.D., the medical officer for USP
Leavenworth who is aware of this case and has reviewed the
pertinent medical records on Mr. Lambros. ECF #11. Mr.
Lambros has filed his reply which fails to dispute any of Dr.
Clark's stated opinions and fails to provide any evidence
to support Mr. Lambros' argument “that transferring
him away from his treating physician will result in the
interruption of his currently prescribed treatment, and that
such an interruption constitutes a violation of the Eighth
Amendment.” ECF# 12.
declaration of Dr. Clark states in pertinent part:
4. Plaintiff was diagnosed with colon cancer in November
2016. He was evaluated by Dr. Bruce Gehrke, a general
surgeon, who recommend (sic) Plaintiff see a colorectal
surgeon based on the complexity of Plaintiff's surgery.
5. On December 13, 2016, Plaintiff was evaluated by Dr.
Benyamine Mizrahi, a colorectal surgeon, who recommended
Plaintiff undergo a robotic low anterior resection. This
operation was performed on December 29, 2016.
6. On January 24, 2017, Plaintiff was seen by Dr. Mizrahi for
a follow-up evaluation. At this time, it was determined
Plaintiff did not need chemotherapy or radiation. Dr. Mizrahi
recommended continued surveillance and follow-up in three (3)
7. On April 25, 2017, Plaintiff was seen by Dr. Mizrahi for a
follow-up in three months. He recommended continued
surveillance and a flex sigmoidoscopy performed in two (2)
8. Plaintiff underwent the flex sigmoidoscopy on June 27,
2017. Dr. Mizrahi recommended continued surveillance and a
follow-up in three (3) months.
9. Plaintiff's cancer is currently in remission. He is
currently undergoing follow-up visits to ensure the cancer
has not returned. He will need a blood test (CEA) and
flexible sigmoidoscopy every three months for the first year
10. Plaintiff was transferred to the Federal Transfer Center
in Oklahoma City, Oklahoma on June 29, 2017.
. . . .
21. The BOP regularly provides continuity of care upon inmate
transfers. Such transfers do not cause a significant
interruption in treatment.
22. All BOP facilities, particularly MRC facilities, have
experience identifying qualified physicians in the public who
contract with ...