Pachinger v. United States Bureau of Prisons et al
ORDER denying docket entry # 36 Plaintiff's Motion for Preliminary Injunction. The Court certifies that an in forma pauperis appeal from this Order would not be taken in good faith. Signed by Magistrate Judge J. Thomas Ray on 06/21/2011. (ksm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KENNETH JOHN PACHINGER,
GRAHAM, Health Services Administrator,
Forrest City Correctional Institution, et al.
Plaintiff, Kenneth John Pachinger, has filed a Motion for a Preliminary
Injunction. See docket entry #36. Defendants have filed a Response. See docket
entry #49. For the following reasons, the Motion will be denied.1
Plaintiff is a prisoner in the Federal Correctional Institution located in Forrest
City, Arkansas (“FCI-FC”). He has commenced this pro se action alleging that
Defendants have provided him with constitutionally inadequate and negligent medical
care for perianal warts caused by the human papilloma virus.2 See docket entry #2.
On June 16, 2011, the parties consented to the jurisdiction of a United States
Magistrate Judge. See docket entry #51.
Plaintiff brings his constitutional claim pursuant to Bivens v. Six Unknown
Agents of the Fed. Bureau of Narcotics. In contrast, his negligence claim is brought
under the Federal Tort Claims Act, 28 U.S.C. § 1346.
In his Motion for a Preliminary Injunction Plaintiff explains that, on April 28,
2010, he had several perianal warts surgically removed. See docket entry #36. As a
result of the surgery, he has experienced chronic itching caused by a reduction in
elasticity and anal dryness. Id. Defendants have prescribed several different topical
ointments, but none have sufficiently alleviated his itching. Id. Thus, he seeks a
preliminary injunction requiring Defendants to have him examined by “competent
physicians trained in the field and capable of diagnosing” his “chronic anal itching
problem.” Id. at 3.
When deciding whether to grant a prisoner preliminary injunctive relief, a court
must consider: (1) the threat of irreparable harm to the movant; (2) the balance
between the harm to the movant and the harm to the nonmoving party should the
injunction issue; (3) the likelihood of success on the merits; and (4) the public interest.
Randolph v. Rodgers 170 F.3d 850, 857 (8th Cir. 1999) (citing Dataphase Sys. v. C.L.
Sys., 640 F.2d 109, 113 (8th Cir. 1981)).
Importantly, the burden of "proving that a preliminary injunction should be
issued rests entirely with the movant." Goff v. Harper, 60 F.3d 518, 520 (8th Cir.
1995); see also United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.
1998) (stating that the “burden on the movant is heavy, in particular where . . .
granting the preliminary injunction will give the movant substantially the relief it
would obtain after a trial on the merits”). Finally, in Rogers v. Scurr, 676 F.2d 1211,
1214 (8th Cir. 1982), the Eighth Circuit emphasized that:
judicial restraint is especially called for in dealing with the complex and
intractable problems of prison administration. . . . It is therefore all the
more important that federal courts abstain from imposing strict standards
of conduct, in the form of injunctions, on prison officials in the absence
of a concrete showing of a valid claim and constitutionally mandated
directives for relief.
See also Goff, 60 F.3d at 520 (providing that "in the prison context, a request for
injunctive relief must always be viewed with great caution").
Although he has been given the opportunity to do so, Plaintiff has failed to
come forward with any facts or evidence demonstrating that he will prevail on the
merits of his case or that he will suffer irreparable harm if his request for preliminary
injunctive relief is denied.
In contrast, Defendant Mary Ellen Rivers-Graham, who is the Health Services
Administrator at the FCI-FC, has filed a sworn Declaration explaining that the prison
health care providers are treating Plaintiff’s chronic anal itching with a numbing
cream, and they have explained proper hygiene and moisturizing techniques to him.
See docket entry #49, Ex. 1. Additionally, Defendant Rivers-Graham explains that
Plaintiff has not sought treatment for perianal warts or itching since January 12, 2011.
In light of this undisputed evidence, the Court concludes that Plaintiff has failed
to satisfy his heavy burden of demonstrating that he is entitled to preliminary
IT IS THEREFORE ORDERED THAT:
Plaintiff’s Motion for a Preliminary Injunction (docket entry #36) is
The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an in
forma pauperis appeal from this Order would not be taken in good faith.
Dated this 21st day of June, 2011.
UNITED STATES MAGISTRATE JUDGE
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