United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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).
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) 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).
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
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).
requests 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,
“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).
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 ...