Pitts v. Kerstein et al

Filing 48

ORDER denying 46 Motion for mental and/or medical examination; denying 47 Motion for findings and conclusions and judgment on partial findings. Signed by Magistrate Judge Patricia S. Harris on 5/10/2024. (csf)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
KENNETH RAY PITTS
ADC #085938
v.

PLAINTIFF
No: 2:24-cv-00021-BSM-PSH

GARY KERSTEIN, et al.

DEFENDANTS
ORDER

Plaintiff Kenneth Ray Pitts initiated this lawsuit by filing a pro se complaint
pursuant to 42 U.S.C. § 1983 on February 7, 2024 (Doc. No. 2). His claims against
Dr. Gary Kerstein, APN Tracy Bennett, and Charlotte Gardner (the “Defendants”)
related to their treatment of his diabetes and cataracts are pending. See Doc. Nos. 5
& 20. Pitts has filed a number of motions which are denied for the reasons stated
below.
Pitts’ motion for a mental and/or medical examination pursuant to Federal
Rule of Civil Procedure 35 (Doc. No. 46) is DENIED. No such examination is
warranted at this time. If Pitts believes he is need of immediate medical treatment
he is not receiving, he may move for preliminary relief by filing an appropriate
motion.1 See Local Rule 7.2(e), Local Rules of the United States District Court for

The granting of injunctive relief is an extraordinary remedy, particularly in a
prison context. See Goff v. Harper, 60 F.3d 518 (8th Cir. 1995). In considering whether
to grant such relief, the Court must consider the following factors: (1) the threat of
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the Eastern and Western Districts of Arkansas (“Pretrial motions for temporary
restraining orders, motions for preliminary injunctions, and motions to dismiss, shall
not be taken up and considered unless set forth in a separate pleading accompanied
by a separate brief.”).
Pitts’ motion for findings and conclusions by the Court and for judgment on
partial findings pursuant to Federal Rule of Civil Procedure 52 (Doc. No. 47) is
DENIED. It is not clear why Pitts filed this motion or what relief he seeks. To the
extent he seeks an order declaring that the Defendants violated his rights, his motion
is premature and unsupported with proof. Whether or not Pitts’ rights have been
violated will not be determined in this case until dispositive motions are filed and
decided,2 or a trial is held.
IT IS SO ORDERED this 10th day of May, 2024.

UNITED STATES MAGISTRATE JUDGE
irreparable harm to the movant; (2) the state of the balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest. See Dataphase
Systems, Inc. v. CL Systems, Inc., 640 F.2d 109 (8th Cir. 1981). “The burden of proving
that a preliminary injunction should be issued rests entirely with the movant.” Goff, 60
F.3d at 519-521 (citing Modern Computer Systems v. Modern Banking Systems, 871 F.2d
734, 737 (8th Cir. 1989) (en banc)).
If dispositive motions are filed, I will enter a recommendation regarding such
motion with proposed findings of fact and conclusions of law. Judge Miller will then
either adopt or decline to adopt my recommendation.
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