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Lambros v. English

United States District Court, D. Kansas

August 11, 2017

JOHN GREGORY LAMBROS, Plaintiff,
v.
NICOLE ENGLISH, Warden, USP-Leavenworth, Defendant.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. DISTRICT SENIOR JUDGE

         The 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. Id.

         Warden 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.

         The 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) months.
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) months.
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 of remission.
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 ...

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