                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                  UNITED STATES COURT OF APPEALS                August 1, 2008
                                                             Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT
                                                                 Clerk of Court


JONATHAN J. EDMISTEN,

             Plaintiff-Appellant,

v.                                                     No. 08-3021
                                           (D.C. No. 5:07-CV-03116-JWL-KGS)
ROGER WERHOLTZ, Secretary,                               (D. Kan.)
Kansas Department of Corrections,
in his official and private capacity;
DAVID R. McKUNE, Warden,
Lansing Correctional Facility, in his
official and private capacity; RAY
ROBERTS, Warden, El Dorado
Correctional Facility, in his official
and private capacity; JOSIE NORRIS,
Corporate Medical Director, Correct
Care Solutions, and Director of
Medical Services, Kansas Department
of Corrections, in her official and
private capacity; DALE A. DAVIS,
D.D.S. - Doctor of Dental Science,
Director of Dental Care Services,
Correct Care Solutions, and Dental
Director, Kansas Department of
Corrections, in his official and private
capacity; FNU CANNON, Dentist,
Correct Care Solutions, El Dorado
Correctional Facility, in his official
and private capacity; E. EDELMAN,
Corporate Medical Director, Correct
Care Solutions, and Director of
Medical Services, Kansas Department
of Corrections, in his official and
private capacity; FNU JONES,
Physician, Correct Care Solutions,
Kansas Department of Corrections,
in his official and private capacity;
    KIM PALMER, Health Care
    Administrator, Correct Care Solutions,
    Kansas Department of Corrections,
    in her official and private capacity;
    ROBERT J. MARTIN, Medical
    Physician, Correct Care Solutions,
    Lansing Correctional Facility,
    in his official and private capacity;
    FNU HAUN, Medical Physician,
    Correct Care Solutions, Lansing
    Correctional Facility, in his official
    and private capacity; JOHN/JANE
    DOES, Lansing and El Dorado
    Correctional Facilities; KANSAS
    DEPARTMENT OF CORRECTIONS,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Plaintiff Jonathan J. Edmisten appeals pro se from the district court’s order

denying two motions for a temporary restraining order (TRO) and preliminary




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                             -2-
injunction (PI). Our jurisdiction over this interlocutory appeal arises under

28 U.S.C. § 1292(a)(1), and we reverse and remand.

I.    Background

      According to the allegations in the verified complaint, Mr. Edmisten has a

history of bone cancer. In 1999, he had bilateral temporomandibular prostheses

surgically implanted in his jaw. Apparently, those prostheses were fashioned

from Mr. Edmisten’s ribs. In May 2006 he was placed in the custody of the

Kansas Department of Corrections (KDOC) to serve a sentence of thirty-nine

months. On May 18, 2006, he was admitted to the El Dorado Correctional

Facility (EDCF). A week later, his jaw locked while he was eating. An x-ray

taken by a prison dentist, Dr. Fred Cannon, showed a dislocated or fractured right

prosthesis, and Mr. Edmisten soon was sent to see Dr. Cole, an oral surgeon in

Wichita. Dr. Cole told Mr. Edmisten that immediate surgery to replace the

prosthesis was necessary, but due to the complexity of the procedure, it should be

performed by the foremost authority on the subject, Dr. John Kent, a New Orleans

oral surgeon who originally had implanted the prostheses. In the meantime,

Dr. Cole prescribed pain medication, antibiotics, and a special diet.

      Mr. Edmisten alleged that upon his return to the EDCF, and for a period of

time that he was housed at the Lansing Correctional Facility, he was for the most

part denied pain medications, antibiotics, and a special diet, and as a result

suffered great pain, serious infection, and substantial detriment to his overall

                                         -3-
health. Over the course of several months, Dr. Cole tried several times to relocate

the prosthesis without success, allegedly at the urging of the KDOC. A number

of other oral surgeons refused to work on the problem due to its complexity,

opining that Dr. Kent was the surgeon for the job. Finally, on October 23, 2006,

Mr. Edmisten was sent to New Orleans to see Dr. Kent. Dr. Kent told him that

because the infection had gone untreated and had spread, the only thing that could

be done was to remove the broken prosthesis, clean out the infected area, and wait

for it to heal before implanting a new synthetic prosthesis; using more ribs was

out of the question. Without the new prosthesis, Dr. Kent said, Mr. Edmisten

would be left without a functional jaw, would be unable to eat solid food, would

lose the ability to speak clearly, and would suffer pain that would increase over

time. Dr. Kent accordingly removed the broken prosthesis and treated the

infection. He released Mr. Edmisten a few days later with instructions to return

in ten days for a follow-up visit and recommendation for future treatment.

Dr. Kent prescribed pain medications, antibiotics, and a special diet.

      Mr. Edmisten alleged that, upon his return to prison, his pain medications

were discontinued after only one day, and that he was told that Dr. Adam

Edelman, the new director of medical services for Correct Care Solutions (CCS),

which contracts with the KDOC to provide medical services to inmates, had

personally ordered the discontinuation. Dr. Cannon, the EDCF dentist, told

Mr. Edmisten that since Dr. Edelman had taken over at CCS, the company would

                                         -4-
not pay the cost for the new prosthesis, which Mr. Edmisten estimates at

$100,000. Dr. Cannon was of the opinion that Mr. Edmisten was being denied

proper treatment. Mr. Edmisten further alleged that he was hospitalized in the

infirmary many times during November and December 2006 due to repeated

cycles of antibiotics and infection, and he was not given a medically proper diet.

He filed grievances that went unheard, and then he filed this action.

      In his complaint, Mr. Edmisten asserted claims under 42 U.S.C. § 1983 and

Kansas state law against KDOC as well as various KDOC and CCS officials and

employees. His primary claim, which forms the basis of his request for injunctive

relief, is that he was deliberately denied prescribed medical treatment

(replacement of the prosthesis) and care (pain medication, antibiotics, medically

appropriate diet) in violation of the Eighth Amendment’s prohibition on cruel and

unusual punishment. He asked for declaratory relief, injunctive relief, damages,

and attorney fees.

      In his motions for a TRO and PI, Mr. Edmisten argued that he was denied

the new prosthesis because of an informal policy to give low priority to the

medical needs of inmates requiring specialized, expensive care or treatment

unless the condition is life-threatening. Addressing the burden he must meet in

order to obtain preliminary injunctive relief, which we detail below, he claimed

irreparable harm in the form of the pain and suffering he had endured and

continues to endure and an increasing risk that his jaw will be rendered useless if

                                         -5-
the new prosthesis is not installed soon. He also asserted that the denial of his

constitutional rights constitutes irreparable harm as a matter of law. As to the

balance of hardships, he argued that his interest in avoiding pain and getting

treatment necessary to preserve the use of his jaw outweighs defendants’ interest

in saving money on care they are required to provide. He argued that he was

likely to prevail on the merits of his Eighth Amendment claim because defendants

had intentionally interfered with prescribed medical treatment. And he asserted

that an injunction would advance the public’s interest in protecting his

constitutional rights and having prison officials obey the law. He requested an

order directing defendants to arrange for an examination and a plan of treatment

by a qualified specialist, and to carry out that treatment plan.

      The district court reviewed the complaint as part of its screening function

under 28 U.S.C. § 1915A, and found that “a response to the complaint is required,

and that proper and judicial processing of the claims cannot be achieved without

additional information from appropriate officials of the [KDOC].” R., Vol. I,

Doc. 15, at 1. Despite this finding, the court denied the TRO/PI motions,

reasoning that Mr. Edmisten had not shown “that medical attention to [his] needs

is currently being denied, or that ‘the injury complained of is of such imminence

that there is a clear and present need for equitable relief to prevent irreparable

harm.’” Id. at 3 (quoting Heideman v. So. Salt Lake City, 348 F.3d 1182, 1189

(10th Cir. 2003)). The court further found that Mr. Edmisten had not “sustained

                                          -6-
his burden of demonstrating the extraordinary relief being requested would not

substantially burden the efficient management of prison resources, and not be

adverse to the public interest.” R., Vol. I, Doc. 15, at 3. The court granted him

in forma pauperis status, denied his request for counsel, directed service on

defendants, and ordered KDOC officials to prepare a report pursuant to Martinez

v. Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam). Mr. Edmisten then took

this interlocutory appeal. Meanwhile, the case continues in the district court.

II.   Standard of Review

      The “denial of a motion for a preliminary injunction is reviewed for an

abuse of discretion, legal error, or clearly erroneous factual findings.” Kikumura

v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). 1 “A district court abuses its

discretion where it commits a legal error or relies on clearly erroneous factual

findings, or where there is no rational basis in the evidence for its ruling.” Davis

v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002) (citation omitted). “We examine

the district court’s underlying factual findings for clear error, and its legal

determinations de novo.” Id. As a pro se litigant, Mr. Edmisten’s pleadings and

other papers are construed liberally. Yang v. Archuleta, 525 F.3d 925, 927 n.1

(10th Cir. 2008).


1
      Ordinarily, the denial of a TRO is not immediately appealable, but an
exception applies when the movant will suffer irreparable harm. Duvall v.
Keating, 162 F.3d 1058, 1062 (10th Cir. 1998). The standard of review is the
same for the denial of a TRO as it is for a PI. Id.

                                          -7-
       In order to receive a preliminary injunction, a movant must establish the

following:

       (1) a substantial likelihood of success on the merits of the case;
       (2) irreparable injury to the movant if the preliminary injunction is
       denied; (3) the threatened injury to the movant outweighs the injury
       to the other party under the preliminary injunction; and (4) the
       injunction is not adverse to the public interest.

Kikumura, 242 F.3d at 955.

       “[A] preliminary injunction is an extraordinary remedy, [and therefore] the

right to relief must be clear and unequivocal.” Id. (quotation omitted). In this

case, because Mr. Edmisten seeks a disfavored injunction (i.e., one that is

mandatory as opposed to prohibitory, would alter the status quo, or would provide

him with substantially all the injunctive relief he seeks), he faces a “heightened

burden” of showing that “the exigencies of the case support the granting of a

remedy that is extraordinary even in the normal course.” O Centro Espirita

Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004)

(en banc) (per curiam) (majority opinion). Thus, he is “not entitled to rely on this

Circuit’s modified-likelihood-of-success-on-the-merits standard,” but “must make

a strong showing both with regard to the likelihood of success on the merits and

with regard to the balance of harms.” Id. at 976.

III.   Analysis

       Having reviewed the allegations and arguments set forth in the complaint,

the TRO/PI motions, and Mr. Edmisten’s affidavits, we conclude that the district

                                         -8-
court erred in denying the motions. The district court was required to take the

allegations as true until they were denied, Smotherman v. United States, 186 F.2d

676, 678 (10th Cir. 1950), particularly because they were not facially unlikely or

absurd, cf. Vega v. Wiley, 259 F. App’x 104, 106-07 (10th Cir. 2007)

(unpublished) (concluding that uncorroborated allegations in verified complaint

and affidavits accompanying motions, plus scant additional evidence, were

insufficient evidentiary support for prisoner’s request for preliminary injunctive

relief where allegations were facially unlikely, and conceivably possible claims

were juxtaposed with absurd claims). 2 As explained below, the allegations on

their face meet the requirements for a disfavored preliminary injunction.

Therefore, the district court should have ordered defendants either to show cause

why the injunction should not be granted or to prepare a Martinez report.

Thereafter, the court should have conducted an evidentiary hearing, if appropriate

or necessary, to resolve any disputed allegations related to the request for

preliminary injunctive relief.

      A. Substantial Likelihood of Success on the Merits

      A state has a constitutional “obligation to provide medical care for those

whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103

(1976). That duty requires a state to provide “a level of medical care which is


2
      We cite this unpublished case not as precedent but for its persuasive value.
See 10th Cir. R. 32.1(A).

                                         -9-
reasonably designed to meet the routine and emergency health care needs of

inmates,” including dental needs. Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir.

1980) (quotation omitted). A violation of the Eighth Amendment’s prohibition on

cruel and unusual punishments occurs when there is deliberate indifference to the

serious medical needs of a prisoner. Estelle, 429 U.S. at 104.

      The test for whether a defendant has shown deliberate indifference to an

inmate’s health or safety has an objective and a subjective component. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). The objective component requires a showing

that the deprivation at issue is “sufficiently serious.” Id. (quotation omitted).

“[A] medical need is sufficiently serious if it is one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Mata v. Saiz,

427 F.3d 745, 751 (10th Cir. 2005) (quotation omitted). Deliberate indifference

also may be “shown when prison officials have prevented an inmate from

receiving recommended treatment.” Ramos, 639 F.2d at 575. “[A] delay in

medical care only constitutes an Eighth Amendment violation where the plaintiff

can show the delay resulted in substantial harm. The substantial harm

requirement may be satisfied by lifelong handicap, permanent loss, or

considerable pain.” Mata, 427 F.3d at 751 (quotations and citation omitted).

      The subjective component of the deliberate indifference test requires a

showing that the defendants were both “aware of facts from which the inference

                                         -10-
could be drawn that a substantial risk of serious harm exists” and that the

defendants drew that inference. Id. (quotation omitted). For example, “[a] prison

medical professional who serves solely as a gatekeeper for other medical

personnel capable of treating the condition may be held liable under the deliberate

indifference standard if [that person] delays or refuses to fulfill that gatekeeper

role.” Id. (quotation and ellipsis omitted). Further, “[a] prisoner may satisfy the

subjective component by showing that defendants’ delay in providing medical

treatment caused either unnecessary pain or a worsening of [the prisoner’s]

condition.” Id. at 755.

      Taking Mr. Edmisten’s allegations as true, the district court’s finding that

he had not established “that medical attention to [his] needs is currently being

denied,” R., Vol. I, Doc. 15, at 3, is clearly erroneous. 3 While Mr. Edmisten’s

allegations indicate that he was receiving some medical attention, the central

thrust of his complaint is twofold: (1) he was not given certain prescribed or

recommended medical care (pain medication, antibiotics, and diet), thereby

suffering significant and unnecessary pain, and (2) certain defendants refused to

transport him back to New Orleans in accordance with Dr. Kent’s order for a

follow-up visit to determine whether the procedure both Dr. Cole and Dr. Kent

viewed as necessary could be completed, a delay that has led to an unnecessary

3
      Although not labeled as such, this finding goes to the merits of the Eighth
Amendment claim because “intentionally interfering with the treatment once
prescribed” can constitute deliberate indifference. Estelle, 429 U.S. at 105.

                                         -11-
and significant deterioration in functioning that may result in permanent loss of

use or lifelong handicap. Thus, defendants’ intentional interference with

prescribed or recommended treatment, delay in providing medical care, and

failure to fulfill a gatekeeper role, if proven, satisfy the test for deliberate

indifference under the Eighth Amendment. See Estelle, 429 U.S. at 105; Mata,

427 F.3d at 751; Ramos, 639 F.2d at 575; see also Boyd v. Knox, 47 F.3d 966, 969

(8th Cir. 1995) (“A three-week delay in dental care, coupled with knowledge of

the inmate-patient’s suffering, can support a finding of an Eighth Amendment

violation under section 1983.”). Therefore, Mr. Edmisten has made a strong

showing that he is likely to succeed on the merits of his Eighth Amendment

claim.

         B. Irreparable Harm

         The district court’s finding that Mr. Edmisten failed to show “that the

injury complained of is of such imminence that there is a clear and present need

for equitable relief to prevent irreparable harm,” R., Vol. I, Doc. 15, at 3

(quotation omitted), is clearly erroneous. “‘When an alleged constitutional right

is involved, most courts hold that no further showing of irreparable injury is

necessary.’” Kikumura, 242 F.3d at 963 (quoting 11A Charles Alan Wright et al.,

Federal Practice and Procedure § 2948.1 (2d ed. 1995)). Although Kikumura

involved the deprivation of First Amendment rights, this rule has been applied in

the Eighth Amendment context in at least one other circuit. See Jolly v.

                                           -12-
Coughlin, 76 F.3d 468, 482 (2d Cir. 1996), abrogated on other grounds by City of

Boerne v. Flores, 521 U.S. 507 (1997). However, we need not consider whether

to apply this rule in the Eighth Amendment context, as Mr. Edmisten suggests,

because he can make a strong showing of irreparable injury under any of the

formulations we have used to describe it: the injury is “both certain and great,”

not “merely serious or substantial”; of the sort that “cannot be adequately atoned

for in money”; or one that “the district court cannot remedy following a final

determination on the merits.” Prairie Band of Potawatomi Indians v. Pierce,

253 F.3d 1234, 1250 (10th Cir. 2001) (quotations and alterations omitted).

      Mr. Edmisten’s allegations, taken as true, meet each of these tests. Since

the removal of the prosthesis and the defendants’ ensuing failure to follow

Dr. Kent’s order for a follow-up visit, Mr. Edmisten has lost all movement and

function in his jaw; can only eat solid food by swallowing it whole, which he later

vomits; cannot speak clearly; is more disfigured; and suffers chronic pain. He

also contends that if he does not have the new prosthesis installed soon, there is

an increasing risk that the procedure could not be performed at a later date. The

individual KDOC appellees respond that this latter contention is simply an

unsupported allegation, but this argument overlooks several of the allegations in

the complaint, including that Dr. Cole and Dr. Kent both viewed replacement as

necessary; that Dr. Kent planned a follow-up visit with Mr. Edmisten ten days

after the first procedure, to which he was never transported; and that

                                         -13-
Mr. Edmisten has lost all range of motion in his jaw and the ability to speak

clearly. Thus, whether or not it is speculative that continued delay would

foreclose Mr. Edmisten’s opportunity to get the replacement prosthesis is beside

the point—the procedure was prescribed, and defendants allegedly interfered with

completion of the procedure. The lack of a functional jaw, and the concomitant

eating problems, would have a certain and great effect on Mr. Edmisten’s physical

condition, an effect that could not be atoned for in money damages or adequately

remedied by the district court given the passage of time that ordinarily

accompanies a trial on the merits. Therefore, taking the allegations as true,

Mr. Edmisten has made a strong showing that he will sustain irreparable

harm—his condition, both of his jaw and his overall health, will deteriorate

irreparably absent implantation of the new prosthesis.

      C. Balance of Harms

      As to the balance of harms, the district court found only that Mr. Edmisten

had not “sustained his burden of demonstrating the extraordinary relief being

requested would not substantially burden the efficient management of prison

resources.” R., Vol. I, Doc. 15, at 3. This finding misses the mark for two

reasons. First, while the projected $100,000 cost would no doubt be a substantial

burden on the efficient use of the responsible party’s resources, such a burden

would not be misplaced or undue if in fact one or more of the defendants is

legally obligated to provide the treatment. Second, since the district court did not

                                        -14-
find any irreparable harm, it did not balance the irreparable harm to Mr. Edmisten

as a result of the failure to replace the prosthesis against the financial burden on

the responsible parties. Assuming that one or more of the defendants is obligated

to provide for the replacement of the prosthesis, Mr. Edmisten has made a strong

showing that the irreparable physical harm to his health outweighs the costs to the

responsible defendant(s). 4

      D. Public Interest

      The district court summarily found that Mr. Edmisten had not “sustained

his burden of demonstrating the extraordinary relief being requested would not

. . . be adverse to the public interest.” Id. As an initial matter, the court’s

“failure to engage in a more explicit analysis is an abuse of discretion.” Aid for

Women v. Foulston, 441 F.3d 1101, 1121 (10th Cir. 2006). Given that

Mr. Edmisten has met his burden as to the other three prongs of the PI test, this

error alone is sufficient for remand as to the public interest prong. But even

overlooking this deficiency, Mr. Edmisten’s argument that the public has an

interest in protecting the civil rights of all persons under the Constitution has

merit. See Summum v. Pleasant Grove City, 483 F.3d 1044, 1056-57 (10th Cir.

2007) (holding that an injunction protecting First Amendment rights is not

adverse to public interest), cert. granted, 128 S. Ct. 1737 (2008). Taking


4
      Whether any of the defendants is responsible for the cost of the
replacement is an issue the district court will have to address on remand.

                                         -15-
Mr. Edmisten’s allegations as true, the defendants have a constitutional obligation

to provide the required dental care, and compelling defendants to perform that

duty is not contrary to the public interest.

IV.   Conclusion

      The district court’s fundamental error in denying Mr. Edmisten’s TRO/PI

motions was in failing to first obtain a response from the defendants to the

allegations in the verified complaint and thereafter resolving any factual disputes

related to the request for preliminary injunctive relief. Therefore, we must

REVERSE the order of the district court denying those motions and REMAND

the matter for the court to reconsider the motions, as further supplemented or

amended in any manner the district court deems appropriate, and taking into

consideration the current procedural posture of the case. Mr. Edmisten’s motion

to proceed on appeal without prepayment of costs or fees is granted, and we

remind him to continue making partial payments until the filing fee is paid in full.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




                                          -16-
