De Rossitte v. Correct Care Solutions, Inc.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.

         This is a civil rights action filed by Plaintiff, Christopher Eugene De Rossitte, 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. 76). Defendants filed Responses in opposition to the motion. (ECF Nos. 84, 85). Plaintiff filed a Reply to the Responses. (ECF No. 88).

         I. BACKGROUND

         Plaintiff is currently incarcerated in the Arkansas Department of Correction (“ADC”) Ouachita River Unit (“ORU”). Plaintiff filed his initial Complaint on May 4, 2017. (ECF No. 1). The following day, the Court ordered Plaintiff to file an Amended Complaint to state his claims against each defendant with factual specificity on the Court's approved § 1983 form. (ECF No. 7). On June 12, 2017, Plaintiff filed an Amended Complaint but failed to use the Court's form as directed to clearly indicate what claim Plaintiff was making against each Defendant. (ECF No. 11). On August 21, 2017 the Court directed Plaintiff to file a Second Amended Complaint on the court-approved § 1983 form. (ECF No. 13).

         Plaintiff filed a Second Amended Complaint on September 5, 2017, naming Correct Care Solutions, Inc. (“CCS”), Dr. Nannette Vowell, Nurse Melissa L. Gifford, Andrea Beasley, Gwendolyn Hart, Richard Morgan, Rory Griffin, Wendy Kelly and Nichole A. Robinson as Defendants. (ECF No. 14). He claims he has been denied medical care in violation of the Eighth Amendment and has been retaliated against for seeking legal action.^[1] Id.

         Plaintiff filed the instant Motion for Preliminary Injunction on July 5, 2018.^[2] In the motion, Plaintiff requests “the medical Defendant CCS provide diagnosis and treatment for the persistent pain in the tissues of the Plaintiff's face and head.” (ECF No. 76, p. 4). Plaintiff argues he has been experiencing these symptoms since 2014 and Defendant CCS has failed to diagnose or treat them despite Plaintiff's numerous medical requests. Plaintiff also states:

It cannot be argued this is not a serious or life-threatening condition as no diagnosis or attempt at diagnosis has been made, and therefore ALL possible eventualities must be considered. Even if the Plaintiff is correct, that it is the result of a bacterial infection, MRSA^[3] (and not, say, cancer) it cannot be said to be free of even life-threatening consequence or other negative long-term outcomes.

(ECF No. 76, p. 5).

         Defendants CCS, Dr. Nannette Vowell, Andrea Beasley, Melissa Gifford, Gwendolyn Hart, Richard Morgan and Nichole Robinson (collectively referred to as “Medical Defendants”) filed a Response to Plaintiff's motion arguing he is not entitled to a preliminary injunction because Plaintiff fails to allege facts to support a conclusion that he is in immediate danger of irreparable harm. Instead, they assert Plaintiff's medical records demonstrate his various complaints, including facial pain, have been addressed by the medical staff at the ORU and Plaintiff simply disagrees with the treatment he has been provided. (ECF No. 85). Defendant Rory Griffin also filed a Response stating Plaintiff's requested relief is not directed towards him, he is not a medical provider, and he cannot provide Plaintiff with the requested relief. (ECF No. 84).

         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

         Plaintiff seeks a preliminary injunction ordering Defendant CCS to provide a diagnosis and treatment for the persistent pain in the tissues of his face and head. (ECF No. 76). Based on a review of the pleadings and exhibits submitted in conjunction with the instant motion, Plaintiff is not entitled to injunctive relief under Dataphase.

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