Price v. Deal et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION that Plaintiff's 15 objections are OVERRULED; that the 10 Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court; and, that the Plaintiff's 3 Motion for Preliminary Injunction is DENIED. Signed by Judge J. Randal Hall on 07/11/2012. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JASON TODD PRICE,
Plaintiff,
V.

DENNIS BROWN, Warden, Augusta
State Medical Prison, et al.,
Defendants.

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CV 112-059

ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation ("R&R"), to which objections have been filed (doc.
no. 15).l
The Magistrate Judge found that Plaintiff had not met his burden of persuasion on
the four requisites for obtaining injunctive relief set forth in McDonald's Corn. v. Robertson,
147 F.3d 1301, 1306 (11th Cir. 1998). With regard to the first element, the Magistrate Judge
correctly concluded that Plaintiff had failed to show a likelihood of success on the merits

'In addition to filing objections to the May 31, 2012 R&R, Plaintiff has submitted a
reply to Defendant Brown's response to his motion for injunctive relief, as well as a
supporting affidavit. (5ee doc. nos. 12, 13.) Although these filings were not received by the
Clerk of Court until June 7, 2012, the Court notes that they are dated May 24, 2012. .(Doc.
no. 12, p. 4; doc. no. 13, p. 6.) Under Houston v. Lack, 487 U.S. 266, 276 (1988), Plaintiff's
documents submitted to the court are deemed filed on the date of execution and delivery to
prison officials for mailing. Thus, the Court will consider Plaintiff's objections in
conjunction with his reply and affidavit, which are largely duplicative of the assertions in his
objections.

because, among other reasons, the allegations in his motion for a preliminary injunction which requests an order preventing medical staff at Augusta State Medical Prison ("ASMP")
from removing Plaintiff's wheelchair and returning him to general population - has nothing
to do with the allegations in his complaint - which describe an alleged assault on Plaintiff
by other inmates at ASMP. (Doc. no. 10, p. 5 (comparing doe, no. 1 with doc. no. 3).)
As to the second element, whether Plaintiff had demonstrated a substantial threat that
he will suffer irreparable injury if the injunction is not granted, the Magistrate Judge
appropriately considered the affidavit of Billy Nichols, M.D., the Medical Director at ASMP,
which was submitted in support of Defendant's response to Plaintiff's motion. (5ee doe.
no. 5 & Ex. 1 ("Nichols AM").) The Magistrate Judge observed that while Plaintiff alleged
that Defendants are threatening to return him to general population without a wheelchair
despite knowing that he is unable to walk, Dr. Nichols averred that he had personally
witnessed Plaintiff walking without assistance for 200 feet before concluding that a
wheelchair is no longer medically necessary. (Doe. no. 10, pp. 4, 6-7 (citing Nichols Aff.
¶ 20).) Moreover, the Magistrate Judge observed Dr. Nichols' explanation that Plaintiff's
current housing assignment in the medical accommodation unit does not require him to walk
distances of more than 200 feet; further, Dr. Nichols averred that Plaintiff would not be
returned to his previous housing assignment (presumably in general population) until medical
staff determine that Plaintiff is medically capable of returning there. (Ld. at 4 & 7 (citing
Nichols Aff. ¶J 17, 20-21).) In light of this evidence, the Magistrate Judge appropriately
concluded that Plaintiff had failed to demonstrate a risk that he will suffer imminent,

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irreparable injury if the Court does not issue the requested injunction.' (Ii)
In his objections, Plaintiff asserts that Dr. Nichols lied in his affidavit because
Plaintiff cannot walk without assistance and is required to walk distances much greater than
200 feet outside of his accommodated living unit. (Doe. no. 15, pp. 1-2; see doe. no. 12, p.2;
doe. no. 13, p. 4.) Plaintiff further requests an order that Defendants provide an affidavit
from Fredrick Cyran, Plaintiff's physical therapist at ASMP, regarding his ability to walk
without assistance. (Doe. no. 15, pp. 1, 3.)
Notably, Plaintiff's objections reveal that he remains in the accommodation unit ( Lee
generally doe. no. 15), and in none of Plaintiff's filings does he challenge Dr. Nichols'
assertion that he will remain there until it is determined that he is medically able to return to
general population. Because Plaintiff provides no reason for the Court to believe that he is
in imminent danger in the accommodation unit or that he will be moved from there before
he is medically able, Plaintiff has still failed to satisfy the irreparable injury requirement.
Ne. Fla. Chapter ofAss'n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283,
1285 (11th Cir. 1990) (explaining that movant must show that a threatened injury is "neither
remote nor speculative, but actual and imminent").
Furthermore, Plaintiff offers nothing to show that the Magistrate Judge incorrectly
assessed the remaining three elements Plaintiff must satisfy to obtain injunctive relief. Thus,
Plaintiff's objections provide no basis for departing from the conclusions in the R&R, and
2Moreover, the Magistrate Judge correctly concluded that Plaintiff failed to satisfy
the third and fourth elements set forth in McDonald's Corp. because Plaintiff had offered
nothing to suggest that any threatened injury to him outweighed the damage of his proposed
injunction, nor had he offered anything to show that the proposed injunction would not be
adverse to the public interest. (Doe. no. 10, p. 7.)
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they are accordingly OVERRULED. Accordingly, the Report and Recommendation of the
Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Plaintiff's "Motion
for Injunction" is DENIED. (Doc. no. 3.)
SO ORDERED this //4ay of July, 2012, at Augusta, Georgia.

BLrJ.
STATES DISTRICT JUDGE
RN DISTRICT OF GEORGIA

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