United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE.
filed his Motion for Preliminary Injunction (ECF No. 1) on
January 4, 2018.Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, United States District Judge, referred this case to
the undersigned for the purpose of making a Report and
is currently incarcerated in the Arkansas Department of
Corrections (“ADC”) Ouachita River Unit.
Plaintiff has filed a verified Motion and also attaches a
“Declaration and Affidavit” both under penalty of
perjury pursuant to 28 U.S.C. § 1746. (ECF No. 1). In
his Motion, Plaintiff alleges Defendants, because of the cost
of treatment, have denied him a pacemaker for his sinus
bradycardia. Plaintiff alleges his condition has
worsened over the past five months, with his heart stopping
eight times during that five months. (ECF No. 1 at 2 and
6-7). Plaintiff alleges he is in danger of “sudden
cardiac death” if he does not receive a cardiac
pacemaker. (ECF No. 1 at 2 and 6-7). Plaintiff further
alleges he suffers daily from chest pains, dizziness,
confusion, loss of consciousness, fatigue, weakness,
shortness of breath, and palpitations. (ECF No. 1 at 7).
alleges he sent three letters to Defendant Beasley, the
Health Services Administrator for Correct Care Solutions
(CCS), and also talked to Ms. McCoy, the Director of Nursing
about his condition. (ECF No. 1 at 8). Plaintiff alleges Dr.
Daniels of CCS refused to “get Plaintiff some medical
help for treatment.” (ECF No. 1 at 8).
alleges he filed an emergency ADC grievance on November 22,
2017. He alleges the Director of Nursing responded to the
grievance and told him that they were “doing what Dr.
Wong said to do.” Plaintiff alleges that on his last
visit with Dr. Wong, the doctor “did not do anything
and he made no orders.” (ECF No. 1 at 10). Plaintiff
allege he appealed the grievance on November 30, 2017, and
was told he would hear back by January 1, 2018. Plaintiff
acknowledges he has not exhausted his administrative remedies
and intends to file suit pursuant to 42 U.S.C. § 1983
upon completion of the ADC grievance process. (ECF No. 1, at
requests a preliminary injunction directing Correct Care
Solutions and the ADC to provide Plaintiff with a gate pass
and transportation to the University of Arkansas Medical
Sciences Hospital (“UAMS”) or another hospital so
that he may be seen by a cardiologist to give a medical
assessment as to the need for a cardiac pacemaker for his
condition. (ECF No. 1 at 9). Plaintiff requests, if the
cardiologist deems a pacemaker necessary, that he receive the
pacemaker insertion. (ECF No. 1 at 10). Finally, Plaintiff
requests that the treating cardiologist be ordered to file a
report with the Court and provide copies of the report to
Plaintiff. (ECF No. 1 at 16).
of the Federal Rules of Civil Procedures governs the issuance
of preliminary injunctions. In deciding a motion for a
preliminary injunction, the courts are instructed to consider
the following factors: (1) the probability of success on the
merits; (2) the threat of irreparable harm to the movant; (3)
the balance between this harm and the injury that granting
the injunction will inflict on other interested parties; and
(4) whether the issuance of an injunction is in the public
interest. Dataphase Sys., Inc. v. C L Sys., Inc.,
640 F.2d 109, 114 (8th Cir. 1981) (en banc); see also
Minnesota Mining and Mfg. Co. v. Rauh Rubber, Inc., 130
F.3d 1305, 1307 (8th Cir. 1997); Sanborn Mfg. Co., Inc.
v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484,
485-86 (8th Cir. 1993). While no single factor in itself is
dispositive, the Eighth Circuit Court of Appeals has held
“the two most critical factors for a district court to
consider in determining whether to grant a preliminary
injunction are (1) the probability that plaintiff will
succeed on the merits, and (2) whether the plaintiff will
suffer irreparable harm if an injunction is not
granted.” Chicago Stadium Corp. v. Scallen,
530 F.2d 204, 206 (8th Cir. 1976). The burden of proving a
preliminary injunction is warranted rests on the movant.
Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).
Further, the Eighth Circuit has instructed that “in the
prison context, a request for injunctive relief must always
be viewed with great caution because judicial restraint is
especially called for in dealing with the complex and
intractable problems of prison administration.”
Id. (internal quotations omitted).
Likelihood of Success on the Merits
claim for a preliminary injunction is based on the assertion
his medical needs are not being properly addressed by the ADC
and its contract medical care provider, CCS. It is
essentially a claim of deliberate indifference to a serious
medical need by a state prisoner. Plaintiff does not allege
he has been denied access to doctors and nurses. In fact he
states he has been seen by two physicians and has talked
directly with the Director of Nursing about his emergency
grievance regarding his alleged heart condition. He further
states he was told by the Director of Nursing that Dr.
Wong's orders were being followed as to his medical care.
Plaintiff clearly disagrees with the diagnosis and treatment
orders of the CCS physicians. However, mere disagreement with
medical treatment fails to state a claim of deliberate
indifference. See Meuir v. Greene County Jail
Employees, 487 F.3d 1115, 1118-19 (8th Cir. 2007) (an
inmate has no constitutional right to a particular course of
treatment, and his mere disagreement with the medical
treatment he receives is not a basis for section 1983
liability); Pietrafeso v. Lawrence County, S.D., 452
F.3d 978, 983 (8th Cir. 2006) (showing deliberate
indifference is greater than even gross negligence and
requires more than mere disagreement with treatment
decisions). Therefore, at least at this juncture, the Court
finds it is improbable that Plaintiff's denial of medical
care claims will be successful on the merits.
preliminary injunction is meant to “preserve the status
quo and prevent irreparable harm until the court has an
opportunity to rule on the lawsuit's merits.”
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994). Plaintiff has alleged that his heart has stopped
several times and he faces sudden cardiac death if a
pacemaker is not implanted. This statement, on its face,
weighs in favor of Plaintiff. However, Plaintiff has not
alleged that any physician or other medical staff has told
him that he needs a pacemaker. Instead, he requests the Court
order him taken to an outside hospital for an assessment of
that need. While it is perhaps understandable that an inmate
may not trust the decisions of a medical provider, such
distrust, alone, is not sufficient reason to invoke the
extreme remedy of injunctive relief, especially in the prison
setting. Further, Plaintiff claims his current medical
condition has persisted for at ...