DeVary v. Derosiers et al

Filing 84

MEMORANDUM ORDER - re 75 MOTION for Preliminary Injunction filed by Stephen DeVary. Signed by Judge Gregory M. Sleet on 1/29/13. (mdb) Modified on 1/31/2013 (mdb).

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 al.,
Defendants.

MEMORANDUM ORDER
At Wilmington, this

'let ,.f"day of

r~ ""'-

,2013, having considered the plaintiffs

emergency motion for injunctive relief (D.1. 75);
IT IS ORDERED that the motion is 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 informa pauperis. Pending before the court is
DeVary's fourth motion for injunctive relief for medical treatment. (D.!.75.)

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 relief will 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 of the

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2009) (unpublished) (citing Goffv. 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. 75.) 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, 83.) As evidenced by the defendants' response, DeVary's
treatment continues. (See D.l. 82.)
"[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 DeVary 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.l. 75.)
DeVary is placed on notice that future motions for injunctive relief seeking the same or similar
relief in the form of medical treatment will be docketed, but not considered.

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