McGee v. Prison Health Services, Inc. et al (INMATE 2)

Filing 6

REPORT AND RECOMMENDATIONS that 2 MOTION for Preliminary Injunction filed by Wylie McGee be denied; that this case be referred back to the magistrate judge for additional proceedings; Objections to R&R due by 3/14/2007. Signed by Judge Terry F. Moorer on 3/2/2007. (cc, )

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McGee v. Prison Health Services, Inc. et al (INMATE 2) Doc. 6 Case 2:07-cv-00181-WHA-TFM Document 6 Filed 03/02/2007 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ______________________________ W IL E Y E. MCGEE, #248 056 P l a i n t if f , v. * * * 2:07-CV-181-WHA (WO) P R IS O N HEALTH SERVICES, INC., * et al., D e f e n d a n ts . * __________________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P e n d in g before the court is Plaintiff's Motion for Preliminary Injunction under Rule 6 5 , Federal Rules of Civil Procedure. He complains that he is being denied adequate m e d ica l care. Specifically, Plaintiff alleges that Defendants have failed to provide him with d ia b e tic shoes or special orthopedic footwear designed to reduce pain and discomfort from s o re s on his feet caused by his diabetic condition. Upon consideration of the motion for p re lim in a ry injunction, the court concludes that this motion is due to be denied. D IS C U S S IO N T h e decision to grant or deny a preliminary injunction "is within the sound discretion o f the district court . . ." Palmer v. Braun, 287 F.3d 1325, 1329 (11 th Cir. 2002). The four p re re q u is ite s which Plaintiff must demonstrate are: (1) a substantial likelihood of success on th e merits; (2) a substantial threat of irreparable injury without the injunction; (3) that the Case 2:07-cv-00181-WHA-TFM Document 6 Filed 03/02/2007 Page 2 of 4 h a rm to Plaintiff outweighs the harm to the non-moving parties; and (4) that an injunction w o u ld be in the interest of the public. Palmer, 287 F.3d at 1329; Cate v. Oldham, 707 F.2d 1 1 7 6 (11 th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352 (11 th C ir. 1983). "[A] preliminary injunction is an extraordinary and drastic remedy not to be g ra n te d unless the movant clearly established the burden of persuasion" as to each of the four p re re q u is ite s . See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11 th Cir. 1998) (in ter n a l citations and quotations omitted); see also Texas v. Seatrain Int'l, S.A., 518 F.2d 1 7 5 , 179 (5 th Cir. 1975) (grant of preliminary injunction "is the exception rather than the rule," and movant must clearly carry the burden of persuasion). The moving party's failure to demonstrate a "substantial likelihood of success on the merits" may defeat the party's c la im , regardless of the party's ability to establish any of the other elements. Church v. City o f Huntsville, 30 F.3d 1332, 1342 (11 th Cir. 1994); see also Siegel v. Lepore, 234 F.3d 1163, 1 1 7 6 (11 th Cir. 2000) (noting that "the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper"). T h e court has carefully reviewed Plaintiff's request for a preliminary injunction and fin d s that he fails to meet each of the prerequisites for the issuance of a preliminary injun ctio n . The undersigned, therefore, concludes that Plaintiff's request for a preliminary in ju n c tio n should be denied.1 Plaintiff's complaint with respect to his request for preliminary injunctive relief is essentially w r a p p e d up in his civil rights action which will afford him with adequate redress for his allegations. 1 2 Case 2:07-cv-00181-WHA-TFM Document 6 Filed 03/02/2007 Page 3 of 4 CONCLUSION A c c o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's M o tio n for Preliminary Injunction (Doc. No. 2) be DENIED. It is further the Recommendation of the Magistrate Judge that this case be referred b a c k to the undersigned for additional proceedings. It is further O R D E R E D that on or before March 14, 2007 the parties shall file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the Inasmuch as Plaintiff has a forum for his complaint, equitable remedies, such as temporary restraining o r d e r s and/or preliminary injunctions, shall not be given. 3 Case 2:07-cv-00181-WHA-TFM Document 6 Filed 03/02/2007 Page 4 of 4 d e c is io n s of the former Fifth Circuit Court of Appeals handed down prior to the close of b u s in e ss on September 30, 1981. Done, this 2nd day of March 2007. /s / Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 4

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