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Kemp v. Correct Care Solution Inc.

United States District Court, W.D. Arkansas, Hot Springs Division

February 22, 2018

LAMAR KEMP, PLAINTIFF
v.
CORRECT CARE SOLUTIONS, INC.; DR. NANETTE VOWELL; and HEALTH SERVICES ADMINISTRATOR ANDREA BEASLEY, DEFENDANTS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE.

         This is 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).

         I. BACKGROUND

         Plaintiff 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).[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.

         Plaintiff 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…

         He goes 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 Plaintiff's requests:

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 by Vowell…

         Defendants 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).

         II. LEGAL STANDARD

         Rule 65 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).

         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).

         III. DISCUSSION

         A. Plaintiff's request for an injunction and temporary relief is not ...


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