DeVary v. Derosiers et al

Filing 83

MEMORANDUM ORDER denying 77 MOTION for Reconsideration re 9 Order (PLRA) for Pay Authorization, 72 Letter/Motion for Injunctive Relief. Signed by Judge Gregory M. Sleet on 1/11/13. (dzb, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

STEPHEN DEVARY,

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) Civ. Action No. 12-150-GMS
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Plaintiff,
v.

DR. DEROSIERS, et aI.,
Defendants.

~EMORANDUM

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At Wilmington, this

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ORDER

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day of <...l ' \ .

' 2013, having considered the plaintiff's

pending motions (D.1. 72, 77);
IT IS ORDERED that the motions are denied, for the following reasons:

I. Introduction
The plaintiff, Stephen DeVary ("DeVary"), a prisoner housed at the James T. Vaughn
Correctional Center, Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C. § 1983. He
proceeds pro se and was granted leave to proceed in forma pauperis. (D.I.9.) Pending before
the court is DeVary's third motion for injunctive relief for medical treatment and a motion to
alter the filing fee payment schedule. (D.1. 72, 77.)

II. Injunctive Relief
A party seeking a preliminary injunction must show: (1) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary reliefwill not result in even greater harm to the nonmoving party; and (4) that the
public interest favors such relief. Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004) (citation omitted). "Preliminary injunctive relief is 'an extraordinary remedy' and

'should be granted only in limited circumstances.'" Id. (citations omitted). Because ofthe
intractable problems of prison administration, a request for injunctive relief in the prison context
must be viewed with considerable caution. Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir.
2009) (not published) (citing Goff v. Harper, 60 F .3d 518, 520 (8th Cir. 1995)).
Once again, DeVary seeks an order for the defendants to provide medical treatment by
sending him to a pain management specialist and to instruct medical personnel that they should
not change his pain medications. (D.L 72.) As previously determined by the court, the
allegations in the complaint and DeVary's motions indicate that he receives medication and is
seen by physicians. (See D.l. 51.) As evidenced by the defendants' responses, DeVary's
treatment continues. (See D.I. 76.)
"[A] prisoner has no right to choose a specific form of medical treatment," so long as the

treatment provided is reasonable. Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir. 2000).
An inmate's claims against members of a prison medical department are not viable under § 1983
where the inmate receives continuing care, but believes that more should be done by way of
diagnosis and treatment and maintains that options available to medical personnel were not
pursued on the inmate's behalf. Estelle v. Gamble, 429 U.S. 97, 107 (1976). Finally, "mere
disagreement as to the proper medical treatment" is insufficient to state a constitutional violation.

See Spruill v. Gillis, 372 F .3d 218, 235 (3d Cir. 2004) (citations omitted).
Given the record before the court, DeVary has not demonstrated the likelihood of success
on the merits. The records indicate that he has received, and continues to receive, care for his
medical condition, albeit not to his liking. DeVary's disagreement with his care, however, does
not lead to a finding that he is entitled to injunctive relief. Nor is there indication of deliberate

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indifference sufficient to grant injunctive relief. Inasmuch as De Vary has failed to show the
likelihood of success on the merits, the court will deny the motions for injunctive relief. For the
above reasons, DeVary's motion for injunctive relief is denied. (D.I.72.)

III. Filing Fee Payment
DeVary seeks to change the percentage of the balance of his prison trust fund account that
he pays toward the filing fee. (D.l. 77) Section 1915 provides that if a prisoner brings a civil
action in forma pauperis, he shall be required to pay the full amount of the filing fee. 28 U.S.C.

§ 1915(b)(1). In addition, § 1915 provides the method for calculation of payment of filing fees
by incarcerated individuals. Id. at § 1915(b)(1) and (b)(2). The filing fee order dated February
16,2012 (D.l. 9) remains in effect. DeVary's motion is denied. (D.l. 77.)

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