United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE.
a civil rights action filed by Plaintiff, Lamar Kemp,
pursuant to 42 U.S.C. § 1983. 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 Recommendation. Currently before the Court is
Plaintiff's Motion for Preliminary Injunction. (ECF No.
24). Defendants have filed a Response in opposition to the
motion. (ECF No. 27).
is currently incarcerated in the Arkansas Department of
Correction (“ADC”) Ouachita River Unit
(“ORU”). Plaintiff filed his Complaint on August
25, 2017, naming Correct Care Solutions, Inc.
(“CCS”), Dr. Nannette Vowell, Andrea Beasley,
Gwendolyn Hart, Rory Griffin, and Wendy Kelly as Defendants.
(ECF No. 1). He claims he has been denied medical care
in violation of the Eighth Amendment and the American with
Disabilities Act and has been retaliated against for seeking
legal action. Id.
filed his Motion for Preliminary Injunction on February 1,
2018. In the motion, Plaintiff requests:
a preliminary injunction, to immediately remedy the undue
pain, suffering and deterioration of health the Plaintiff
continues to endure in direct violation of the Eighth
Amendment to the United States Constitution; specifically
that Correct Care Solution, Inc., be ordered to provide an
urgently needed medical care to bring CCS into compliance
with its oigilations, both those contractual to ADC, and by
Dint of that contact, its constitution obligations…
on to state he has been refused adequate health care and
“has been retalaited againt for attempting to obtain
such…” (ECF No.24, p. 2). Specifically
1) the Plaintiff be immediately transported to Jefferson
Medical Hospital to have corrected a arterial blockage near
to and related to his dialysis port…2) that Doctor
Nannette Vowell…be immediately enjoined from having
any imput or authorthy over the Plaintiffs health
care…3) that the Plaintiff be immediately provided
Ensure nutritional supplement…that the Plaintiff be
immediately issued a renal tray script which is a special
diet given to all other dialysis patients and is being denied
filed a Response to Plaintiff's motion arguing he is not
entitled to a preliminary injunction because the relief
requested in the motion is unrelated to Plaintiff's
underlying lawsuit and Plaintiff fails to allege facts to
support a conclusion that he is in immediate danger of
irreparable harm. (ECF No. 27).
of the Federal Rules of Civil Procedures governs the issuance
of temporary restraining orders and preliminary injunctions.
In deciding a motion for a temporary restraining order or 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).
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
Plaintiff's request for an injunction and temporary
relief is not ...