Opinion
Civil Action No. 1:10cv-1606-RMG-SVH.
April 7, 2011
ORDER
Plaintiff brought this action pursuant to 42 U.S.C. § 1983. As a result, this matter was referred to a Magistrate Judge for pre-trial proceedings. The Magistrate Judge has made a report and recommendation that Plaintiff's motion for injunctive relief be denied. (Dkt. No. 41). The Plaintiff has objected. After a de novo review, this Court adopts the recommendation of the Magistrate Judge.
Analysis
The magistrate judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id. In the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
A party seeking a preliminary injunction must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., ___ U.S. ___, ___, 129 S.Ct. 365, 374 (2008); The Real Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). A petitioner must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 129 S.Ct. at 376; Real Truth, 575 F.3d at 345-46. Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Winter, 129 S.Ct. at 374-76; Real Truth, 575 F.3d at 347.
The record in this case shows that Plaintiff has not demonstrated a clear likelihood of success on the merits or that he is likely to be irreparably harmed absent injunctive relief. The Constitution does not guarantee to a prisoner the treatment of his choice. Thomas v. Anderson City Jail, No. 6:10-3270-RMG-KFM, 2011 WL 442053, at *3 (D.S.C. Jan. 19, 2011); Jackson v. Fair, 846 F. 2d 811, 817 (1st Cir. 1988). Although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See id.; Brown v. Thompson, 868 F. Supp. 326 (S.D. Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F. 2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F. Supp. 351, 353 (D.Kan. 1986).
Plaintiff also fails to demonstrate he will be irreparably harmed in the absence of relief. Plaintiff contends that he will suffer mentally, emotionally, and physically, if he does not receive his antidepressants. However, Plaintiff has submitted no proof of irreparable harm in the form of medical records, medical opinion, evidence of medical history, or otherwise to corroborate his claims of medical exigency. Without such proof, the court cannot conclude Plaintiff will be irreparably harmed. In sum, the record reflects little support for Plaintiff's alleged harm, much less the irreparable harm required for an injunction.
Conclusion
Based on the above, Plaintiff's request for an injunction is denied. (Dkt. No. 23).
AND IT IS SO ORDERED.
April 6, 2011 Charleston, South Carolina