Opinion
Case No. 4:16cv238-RH/CAS
06-23-2016
JOHN CARMICHAEL, Plaintiff, v. JULIE JONES, DR. ACOSTA, WARDEN J. SOREY, and CORIZON HEALTHCARE, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner proceeding pro se, submitted a civil rights complaint, ECF No. 1, and motion for preliminary injunction and/or protective order, ECF No. 2, on April 21, 2016. Plaintiff paid the filing fee for this case. ECF No. 4.
In a separate Order entered this day, the complaint, ECF No. 1, was reviewed as required by 28 U.S.C. § 1915A. Plaintiff alleged that an Ophthalmologist recommended that he have corrective surgery for cataracts. ECF No. 1 at 4. The recommendation was denied by an unknown source, but the complaint alleged that it was denied because "Plaintiff did not 'meet the criteria' for surgery to correct his cataracts." Id. That states a plausible claim, but not against all named Defendants. Plaintiff was directed to file an amended complaint.
As for the motion for a preliminary injunction and/or protective order, ECF No. 2, Plaintiff seeks an order which will "ensure that he receives treatment for his serious medical condition." ECF No. 2 at 1.
Granting or denying a preliminary injunction is a decision within the discretion of the district court. Carillon Importers, Ltd. v. Frank Pesce Intern. Group Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997) (citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983)). Preliminary injunctive relief may be granted only if the moving party establishes:
(1) a substantial likelihood of success on the merits;Keeton v. Anderson-Wiley, 664 F.3d 865, 868 (11th Cir. 2011); Carillon Importers, Ltd., 112 F.3d at 1126; United States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983). A preliminary injunction is an extraordinary and drastic remedy and should not be granted unless the movant "clearly carries the burden of persuasion" of all four prerequisites, which is always upon the plaintiff. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000); Jefferson Cnty., 720 F.2d at 1519 (citing Canal Auth. v. Callaway, 489 F.2d 567 (5th Cir. 1974)).
(2) a substantial threat of irreparable injury unless the injunction issues;
(3) the threatened injury to the movant outweighs whatever harm the proposed injunction may cause the opposing party; and
(4) granting the injunction would not be adverse to the public interest.
Because Plaintiff's original complaint has been found insufficient to properly state a claim against all Defendants and Plaintiff has been required to submit an amended complaint, Plaintiff has correspondingly failed to meet the prerequisites for injunctive relief.
In addition, it cannot be said that Plaintiff faces a "substantial likelihood of success." Deliberate indifference to the serious medical needs of sentenced prisoners violates the Eighth Amendment's prohibition of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). However, a "simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment support a claim of cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991), citing Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). See also Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993). For example, in Estelle, the prisoner received treatment for his back injury (bed rest, muscle relaxants and pain relievers), but complained that more should have been done in the way of diagnosis, such as an X-ray or other tests. The Court rejected this as a basis for liability:
But the question whether an X-ray--or additional diagnostic techniques or forms of treatment--is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.429 U.S. at 107, 97 S. Ct. at 293. Here, it is not evident that Plaintiff's dispute amounts to anything more than his disagreement with a medical decision. If the "criteria" used to determine whether surgery is necessary is based on Plaintiff's medical needs, his claim likely will not succeed. In the alternative, if the "criteria" uses a cost-analysis independent of Plaintiff's medical needs, he has a plausible claim. On this record, and at this stage of the litigation, it is not "significantly likely" that this claim will succeed.
Furthermore, "[a] showing of irreparable injury is 'the sine qua non of injunctive relief.' " Northeastern Florida Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990); Siegel, 234 F.3d at 1176 (quoted in Jernard v. Commissioner, Ga. Dep't of Corrs., 457 F.App'x 837, 839 (11th Cir. 2012). Plaintiff's requests for relief in the complaint include compensatory damages of $50,000.00 from each Defendant. ECF No. 1 at 8. The availability of such damages means there cannot be a finding of irreparable injury. The unavailability of an adequate remedy at law is essentially a prerequisite to a finding of irreparable injury. Jefferson Cnty., 720 F.2d at 1520 (finding "[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm."). Thus, failing to issue an injunction in this case would not constitute a "substantial threat of irreparable injury."
RECOMMENDATION
For all these reasons, it is respectfully RECOMMENDED that Plaintiff's motion for preliminary injunction and/or protective order, ECF No. 2, be DENIED and this case be REMANDED to the undersigned for further proceedings.
IN CHAMBERS at Tallahassee, Florida, on June 23, 2016.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 14 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 14 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.