Keller v. Pichardo et al

Filing 93

REPORT OF MAGISTRATE JUDGE re 87 MOTION for Preliminary Injunction filed by Peter Francies Keller and 53 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Peter Francies Keller. Recommending denying. Objections to R&R due by 1/26/2009. Signed by Magistrate Judge Patrick A. White on 1/7/2009. (tw)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-21472-CIV-UNGARO MAGISTRATE JUDGE P.A. WHITE PETER FRANCIS KELLER, Plaintiff, v. WARDEN PICHARDO, ET AL., Defendants. ______________________________ : : : : : : REPORT OF MAGISTRATE JUDGE

This Cause is before the Court upon the plaintiff's Motion and Corrected Motion for Preliminary Injunction [DE#'s 53, 87] . This Cause is proceeding on the claim of denial of proper medical care proceed against the defendants Pichardo, Balmir, Finisse and Urbina in their individual capacities. The plaintiff alleges that he has not received proper medical care for back injuries suffered in a pre-incarceration automobile accident and he is not being provided needed surgery or other alternative treatments. The plaintiff seeks an order directing the defendants provide proper pain medication and pain management treatment. that he has been denied any medical treatment nonprescription pain medication. The type of relief the plaintiff seeks is an extraordinary remedy. U.S. See California v. American Stores Company, et al., 492 (1989). The standard for issuing a preliminary 1301 He alleges other than

injunction, which is the same as is required for a temporary restraining order, is to be based upon consideration of four factors. The standard for issuing a preliminary injunction, is as

follows:

The

party

seeking

relief

must

demonstrate:

1)

a

substantial likelihood that he will prevail on the merits, 2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, 3) that the threatened injury to him outweighs the the potential is harm the injunction v. U.S. may do to the of defendant, and 4) that the public interest will not be impaired if injunction granted. Alabama Army Corps Engineers, 424 F.3d 1117, 1128 (11 Cir. 2005) (citations omitted), cert. denied, 126 S.Ct. 2862 (2006). A preliminary injunction should not be granted unless the movant clearly establishes the burden of persuasion as to all four prerequisites. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11 Cir. 1998). After reviewing the motion, the Undersigned finds that the plaintiff does not state a prima facie injunctive relief. suffering with indication of immediate, irreparable harm. listed ailments for case for preliminary The plaintiff has been quite some time but The plaintiff has not adequately shown any

unfortunately the motion falls short of raising facts that tend to show he is entitled to immediate relief. The plaintiff states that he has received some pain medication, and he does not raise facts to meet his burden of persuasion that would support the court's use of an extraordinary remedy which would necessarily interfere with the administration of medical care for state inmates. The plaintiff's allegations do not indicate that there is a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; that there is any threatened injury to the plaintiff such that any such injury outweighs the potential harm the injunction may do to the defendants; nor that the public interest will not be impaired if the injunction is granted.

2

Assuming that the allegations raised in the plaintiff's motion are true, the plaintiff has not proffered sufficient facts to state a prima facie case for preliminary injunctive relief. Based on the foregoing, it is recommended that the Motion and Corrected Motion for Preliminary Injunction [DE#'s 53, 87] be denied. Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report. It is so recommended at Miami, Florida, this 7 January, 2009.
th

day of

______________________________ UNITED STATES MAGISTRATE JUDGE

cc:

Peter Francis Keller, Pro Se No. 602200 Everglades Correctional Institution P. O. Box 949000 Miami, FL 33194-9000 Kathleen M. Savor, Esq. Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 110 S.E. 6th Street, 10th Floor Fort Lauderdale, FL 33301 Tullio Emil Iacono, Esq. Cole Scott & Kissane, PA Dadeland Centre II 9150 South Dadeland Boulevard 14th Floor Miami, FL 33156 3