Karch v. Mulch et al

Filing 27

MEMORANDUM AND ORDER denying 23 MOTION for Order filed by Donald E Karch, 22 MOTION to Appoint Counsel filed by Donald E Karch and 1 Motion for Temporary Restraining Order. Signed by Judge J. Phil Gilbert on 8/8/2012. (dka, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONALD E. KARCH,
Plaintiff,
v.
ROGER MULCH, Sheriff, and
CISSY BROWN, Nurse.
Defendants.

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Case No. 12-cv-825-JPG

MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Donald E. Karch’s motion for a
temporary restraining order (Doc. 1). In keeping with its responsibility to liberally construe pro
se pleadings, the Court construed plaintiff’s complaint (Doc. 1) as a motion for a temporary
restraining order. Defendants Roger Mulch and Cissy Brown filed a response in opposition to
the motion for a temporary restraining order (Doc. 26). The Court held an emergency hearing on
plaintiff’s motion on August 6, 2012, at which counsel for plaintiff and defendants were present.
I. Background
Plaintiff is currently incarcerated at the Jefferson County Justice Center awaiting trial on
state felony methamphetamine charges. He filed his pro se complaint alleging that the batteries
in his pacemaker were dead and he feared for his life. He further alleged that Defendants failed
to provide him with medical care to remedy his inoperable pacemaker battery and thus were
deliberately indifferent to his medical needs in violation of the Eighth Amendment. At the
hearing, plaintiff offered only his own testimony in which he stated that his pacemaker was nine
years old and the batteries were not supposed to last longer than nine years.

Defendants, however, maintain that jail medical staff examined plaintiff at least
seventeen different times and medical staff at Good Samaritan Regional Health Center examined
plaintiff on two different occasions during his time in custody. Specifically, on August 1, 2012,
hospital staff at the Good Samaritan Regional Health Center tested plaintiff’s pacemaker and
found that its batteries were working properly. Plaintiff informed the Court that during the
examination he tampered with the machine used to check his pacemaker battery because he
believed it was the incorrect machine. As proof of plaintiff’s medical treatment, Defendants
attached notes from the Jefferson County Justice Center and medical records from the Good
Samaritan Regional Health Center. Defendants further asserted that jail medical staff would be
available to plaintiff in the future.
II. Analysis
A court may enter a temporary restraining order in a civil action regarding prison
conditions. 18 U.S.C. § 3626(a)(2).
Preliminary injunctive relief must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires preliminary relief, and be
the least intrusive means necessary to correct that harm. The court shall give
substantial weight to any adverse impact on public safety or the operation of a
criminal justice system caused by the preliminary relief and shall respect the
principles of comity . . . in tailoring any preliminary relief.
Id. When deciding a motion for temporary injunction, the Court applies the same standard as it
does to a motion for a preliminary injunction. Crue v. Aiken, 137 F. Supp. 2d 1076, 1083 (C.D.
Ill. 2001).
Preliminary injunctive relief is designed “to minimize the hardship to the parties pending
the ultimate resolution of the lawsuit.” Platinum Home Mortgage Corp. v. Platinum Fin. Group
Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary injunction must make a
threshold showing that (1) it has some likelihood of success on the merits, (2) no adequate
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remedy at law exists, and (3) it will suffer irreparable harm if the injunction is not granted.
Ferrell v. United States Dep’t of Housing and Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999). If
the moving party is able to establish these three factors, the Court must then balance the harms to
both parties using a “sliding scale” analysis, also taking into consideration the effect that
granting or denying the injunction will have on the public. Id. “[T]he greater the moving party’s
likelihood of prevailing on the merits, the less strongly it must show that the balance of harms
weighs in its favor.” Id. “A preliminary injunction is an extraordinary remedy that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Chicago Dist.
Council of Carpenters Pension Fund v. K & I Constr., Inc., 270 F.3d 1060, 1064 (7th Cir. 2001)
(citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)); accord Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
In order to establish the requisite likelihood of success on the merits, plaintiff must show
he is likely to succeed on his deliberate indifference claim. The Eighth Amendment’s prohibition
on the unnecessary and wanton infliction of pain, made applicable to the states through the
Fourteenth Amendment, forbids deliberate indifference to a prisoner’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 101, 104 (1976); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.
2006); Zentmyer v. Kendall Co., 220 F.3d 805, 810 (7th Cir. 2000). While the Eighth
Amendment protects prisoners from deliberate indifference to a serious medical need, arrestees
and pretrial detainees are given similar protections under the Fourteenth Amendment’s due
process clause. Chapman v. Keltner, 241 F.3d 842 (7th Cir. 2001) (citing Estelle v. Gamble, 429
U.S. 97, 104 (1976); Zentmyer v. Kendall Co., 220 F.3d 805, 810 (7th Cir. 2000)). To prevail on
such a claim, a prisoner must show (1) that he had an objectively serious medical need and (2)

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that the official knew that the medical need was serious but disregarded it. Johnson, 444 F.3d at
584; Zentmyer, 220 F.3d at 810.
An objectively serious injury or medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Johnson, 444 F.3d at 584-85 (quotations
omitted). A serious medical condition need not be life-threatening, but it should constitute “a
denial of the minimal civilized measure of life’s necessities.” Id. at 585 (quotations omitted).
An official is deliberately indifferent if he “knows of and disregards an excessive risk to
inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Johnson, 444 F.3d at
585 (“The standard requires that an officer have ‘subjective awareness’ of the serious medical
need and then act with indifference to that need.”); Farmer, 511 U.S. at 835. Negligence is not
enough. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). “Deliberate indifference can arise by a
failure to provide prompt treatment for serious medical needs or by intentionally interfering with
treatment once prescribed.” Chapman v. Keltner, 241 F.3d 842, 845-46 (7th Cir. 2001) (citing
Estelle, 429 U.S. at 104-05).
Here, defendants do not deny that an inoperable pacemaker poses a serious medical need.
Accordingly, plaintiff’s Eight Amendment claim will turn on whether defendants were
deliberately indifferent to his medical need. Defendants produced records evidencing that jail
staff and a local hospital had treated plaintiff on multiple occasions. Those records indicated that
a test of plaintiff’s pacemaker battery showed it was properly functioning. The Court finds those
records to be credible. As such, the plaintiff cannot show that defendants were deliberately
indifferent to his medical needs. Further, the Court finds it particularly relevant that plaintiff, by
his own admission, attempted to thwart the relief which he sought by tampering with the

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machine used to test his pacemaker battery. Accordingly, the Court finds that there is no
imminent threat to plaintiff’s health, safety or welfare, and plaintiff has not shown a likelihood of
success on the merits.
III. Conclusion
Thus, the Court DENIES plaintiff’s motion for a temporary restraining order (Doc. 1).
The Court further DENIES plaintiff’s motion asking the court for protection from defendants.
(Doc. 23).
The Court previously appointed attorney William Alexander to represent plaintiff.
Accordingly, the Court DENIES plaintiff’s subsequent motion to appoint counsel (Doc. 22).

IT IS SO ORDERED.
DATED: August 8, 2012
s/ J. Phil Gilbert____
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE

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