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Woodard v. Vowell

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

April 26, 2018

BART WAYNE WOODARD PLAINTIFF
v.
DR. NYNETT VOWELL, et. al. DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by the Plaintiff 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 and Temporary Restraining Order. (ECF No. 6).

         I. BACKGROUND

         Plaintiff filed his Complaint and Motion for Preliminary Injunction and Temporary Restraining Order on October 31, 2017. (ECF Nos. 1, 6). Plaintiff's Motion makes four allegations concerning his medical care at the Arkansas Department of Correction (ADC) Ouachita River Unit.[1]

         First, Plaintiff alleges, that his personal “orthopedic shoes with a nominal build up on the left shoe” were taken from him, by unnamed ADC correctional officer(s), upon intake in the Unit on October 1, 2015. (ECF No. 6 at 2). Plaintiff alleges he suffered an injury to his left hip on August 31, 2009, which required screws and pins for repair, and left him with a “small but notable limp.” (Id.). Plaintiff alleges the shoes compensated for the limp, permitting him to maintain the same gait for over six years. (Id.). Plaintiff alleges he told several ADC correctional officers that his personal orthopedic shoes were necessary to prevent further damage to his hip, but his orthopedic shoes were taken despite this information, and he received blue canvas shoes as a replacement. (ECF No. 6 at 2-3). Plaintiff alleges it took three and a half months to receive replacement orthopedic shoes. (ECF No. 6 at 3, 17).

         Second, Plaintiff alleges he was denied any type of ambulation device after his personal orthopedic shoes were taken. (ECF No. 6 at 3-4). Plaintiff claims “[a] script for the posses[s]ion of a cane was written within the first 14 days & given to the Plaintiff, however the actual possession of a cane did not occur until January 2016.” (Id.). Plaintiff states he was denied an ambulation device for the same amount of time that he was denied orthopedic shoes. (Id.). Plaintiff alleges that the denial of both the orthopedic shoes and cane, in combination with “forced long distance ambulation, ” caused a “severe amount of damage” to Plaintiff's “pelvic regions” (ECF No. 6 at 6) and that he is now suffering both acute and chronic pain and “popping” in his pelvis (ECF No. 6 at 7-8).

         Third, Plaintiff alleges that he has been denied any “meaningful medication regime” for his pelvic pain. (ECF No. 6 at 8). Plaintiff alleges Correct Care Solutions (CCS)[2] staff and providers “have constantly stated that Plaintiff has no pain that requires any additional or stronger pain medications.” (Id.) Plaintiff further alleges CCS staff and providers “have refused & continue to refuse sending Plaintiff out of the prison for either a C.T. scan or MRI scan in order to provide any concrete objective data that this Plaintiff has a actual pain. . . .” (Id.). Plaintiff claims he was sent to Baptist Health Hospital in December 2016 for transfusions. (ECF No. 6 at 8-9). Plaintiff alleges that while at Baptist Health, he received an “appropriate medication regime” for pain and the “rel[ie]f was notable.” (ECF No. 6 at 9). Plaintiff states he also received a CT scan to address the pain in his pelvic region, and the scan confirmed his complaints of pain. (ECF No. 6 at 9-10).

         Plaintiff alleges Defendant Hart refused to look at the CT scan report, and refused to permit Plaintiff to take the report to Defendant Vowell. (ECF No. 6 at 10). Plaintiff alleges that:

[d]ue to the put offs, the misrepresentation of fact the outright lies regarding increases in strength of medications, or number of times per day the plaintiff would receive the medications, changing the actual type & or brand of medications nothing meaningful & effective has been implemented and the Plaintiff has suffered greatly due to this constant deliberate indifference.

(ECF No. 6 at 13). Plaintiff alleges he received medication that was “slightly effective” in the first half of 2016, but this medication was discontinued when he was admitted to the University of Arkansas for the Medical Sciences during the last half of 2016. (ECF No. 6 at 14-15). Plaintiff alleges he received a fifteen-day trial medication regime that was effective in the first half of 2017, but when the fifteen day trial expired, he no longer received the extra medication despite his requests and grievances. (ECF No. 6 at 15). Plaintiff alleges he continues to “plead for meaningful changes to the current medication regime.” (Id.).

         Fourth, Plaintiff alleges CCS providers refuse to set any appointments with any orthopedic doctors “who could offer some insight it will recommend for medication regime & why the regime is needed, & insight as to why or why not surgery is needed.” (ECF No. 6 at 15).

         Plaintiff requests[3] the Court order that Plaintiff be temporarily placed back on “the medication regimen that was ADC approved while Plaintiff was in the Washington County Jail, ” which included Elavil, Neurontin, Meloxicam, [4] and “Tyl 500 mg.” (ECF No. 6 at 20). Plaintiff lists a number of medications which, “combined together or perhaps individually are very effective as pain control medication.” (ECF No. 6 at 21). Plaintiff requests that the Court order an MRI or CT scan of his pelvis, an appointment with a chiropractor, spinal x-rays, a spinal brace, physical therapy, and an appointment with an “independent, unbiased orthopedic specialist” chosen by the Court. (ECF No. 6 at 20, 21, 23). Plaintiff further requests that, in the event CCS employees fail to follow the directives of the court-appointed orthopedic specialist, the Court will then issue an order creating a medication regimen based on the advice of an “impartial independent medical pain management Doctor.” (ECF No. 6 at 20). Finally, Plaintiff requests that the Court order that his rack and housing unit not be changed in retaliation for filing this suit. (ECF No. 6 at 21-22).[5]

         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 ...


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