United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
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).
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).
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
filed the instant Motion for Preliminary Injunction on July
5, 2018. 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 (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).
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.
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).
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.