Barrow v. Wexford Health Sources, Inc. et al
Filing
342
ORDER ADOPTING 280 REPORT AND RECOMMENDATION and DENYING 214 Motion for Preliminary Injunction filed by Plaintiff Ronald Barrow. Signed by Judge Nancy J. Rosenstengel on 9/5/2017. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BARROW,
Plaintiff,
vs.
DR. ROBERT SHEARING and
DR. J. TROST,
Defendants.
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Case No. 3:14-CV-800-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on the Report and Recommendation of
Magistrate Judge Donald G. Wilkerson (Doc. 280), which recommends denying the
Motion for Preliminary Injunction filed by Plaintiff Ronald Barrow (Doc. 214). The
Report and Recommendation was entered on May 19, 2017. Barrow filed a timely
objection (Doc. 281).
BACKGROUND
Ronald Barrow, an inmate at Menard Correctional Center, filed this lawsuit on
July 11, 2014, alleging Defendants were deliberately indifferent to his chronic medical
conditions including chronic rectal bleeding and diverticulosis, chronic knee and
shoulder pain, and chronic lower back pain. Barrow is proceeding to trial on his
deliberate indifference claims against Defendants Dr. Shearing and Dr. Trost. Defendant
Wexford Health Sources, Inc. (“Wexford”) was dismissed from the case on summary
judgment (Doc. 240).
On March 12, 2015, Barrow filed his first motion for preliminary injunction
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(Doc. 76) complaining that Defendants’ deliberate disregard and denial of treatment for
his chronic back pain and disc damage, other than a prescription for Tylenol, resulted in
daily pain and suffering, limited daily activities, loss of sleep, and the possibility of being
subject to permanent disability. In sum, Barrow requested a preliminary injunction
ordering Defendants “to provide community standard of care treatment for Plaintiff’s
lower back disc damage, including an MRI, physical therapy, lumbar epidural steroid
injection, pain management with medication and/or surgery if necessary.” (Id.) Barrow
subsequently was appointed counsel and, after a delay due to communications issues
with the prison (outside of Barrow’s control), counsel indicated Barrow wished to
proceed with his motion for preliminary injunction.
After considering Barrow’s motion, on March 7, 2016, the Court found that
Barrow failed to make a clear showing that he was entitled to injunctive relief (Doc. 164).
The Court noted that further discovery through the assistance of Barrow’s appointed
counsel, as well as any dispositive motions filed in the case, would give the Court a more
comprehensive view of the evidence in the matter (Id., p. 3). In any event, Barrow’s
request for “community standard” medical care goes beyond the requirements of the
Eighth Amendment and would require medical treatment Barrow may not otherwise be
entitled to receive (Id.). Given that Barrow had been appointed counsel and discovery
was ongoing, the Court denied the motion without prejudice, granting Barrow leave to
refile the motion at a later date.
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On January 17, 2017, Barrow refiled that motion pro se1 (Doc. 214). Barrow
continues to allege that Defendants have acted with deliberate indifference as to his
lower back pain and have denied him adequate medical care, but in his current motion
cites to actions taken (or omitted) since November 7, 2016. Specifically, Barrow asserts
that he was supposed to receive an injection for pain management on September 26,
2016; however, he was informed the injection would not be given until November 2016.
As of the filing of Barrow’s motion in January 2017, the injection still had not occurred.
Barrow also claims that during a visit on November 18, 2016, Dr. Trost refused to discuss
Barrow’s serious medical needs, threatened him in retaliation for this lawsuit, decreased
his prescription for pain medication, and falsified Barrow’s medical records to cover up
Dr. Trost’s conduct (Doc. 215, p. 3-4). Barrow also claims that a prescription for
methylprednisolone was allowed to expire on January 1, 2017, despite Barrow’s repeated
requests to be seen by Dr. Caldwell (who is not a party to this lawsuit). Barrow seeks an
injunction ordering:
Defendants, their successors, agents, employees, and all person acting in
concert with them, to provide community standard of care treatment for
Plaintiff’s chronic lower back degenerative disc disease, including physical
therapy, lumbar epidural steroid injections, adequate pain management
with recommended medication, continual monitoring and/or surgery if
necessary, and other medical care be provided by health care provider
other than Defendant Trost and protective order for any and all retaliation
by Wexford Health Sources Inc. and IDOC employees, cease and desist.
(Id., p. 6).
In response, Defendants argue that Barrow is not likely to succeed on the merits
of his deliberate indifference claim because, under Seventh Circuit law, a difference of
Barrow told his appointed attorney he no longer wished to be represented by counsel; accordingly,
Magistrate Judge Wilkerson granted counsel’s motion to withdraw (Doc. 198). To date, Barrow is
proceeding to trial as a pro se litigant.
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opinion on how a condition should be treated does not give rise to a constitutional
violation. Defendants provide a chronology of Barrow’s medical care and treatment
since July 2016, which includes examinations by outside specialists; prescriptions for
pain medications; a referral to an outside pain management specialist as requested by
Dr. Trost; an examination by a Nurse Practitioner who found no signs of any nerve root
compression but ordered prescriptions for Robaxin and Tylenol; an examination by Dr.
Butalid, who ordered Robaxin for one month; a consultation with a specialist at the Brain
and Spine Institute in Carbondale, Illinois, who found no significant stenosis or
subluxation but recommended a single epidural trial; a follow-up examination by Dr.
Caldwell, who ordered Medrol, a steroid medication for inflammation; a referral by Dr.
Trost for Barrow to be seen by Interventional Radiology for an epidural steroid injection;
and a subsequent exam by Dr. Trost where Dr. Trost noted Barrow’s Medrol was
continued as prescribed and reordered Robaxin 500 mg three times a day.
Defendants also argue that Barrow has an adequate remedy at law, namely, a
final determination on the merits of Barrow’s case, and that Barrow will not suffer
irreparable harm absent injunctive relief because he has continued to receive consistent
care and treatment for his chronic back pain. Finally, Defendants argue that the “balance
of equities” is in their favor and that granting preliminary relief in this case is not in the
public interest.
CONCLUSIONS OF THE REPORT AND RECOMMENDATION
On April 7, 2017, Magistrate Judge Wilkerson entered an order noting that, as of
March 24, 2017, Dr. Trost is no longer employed by Wexford as the medical director of
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Menard. As a result, he no longer provides Barrow with medical care, nor does he have
access to Barrow’s medical records. Furthermore, Barrow is not seeking any injunctive
relief from Dr. Shearing, who stopped treating Barrow in 2013. Thus, Magistrate Judge
Wilkerson asked the parties to file supplemental briefs discussing Rule 65(d)(2) of the
Federal Rules of Civil Procedure, which states that an order granting an injunction binds
only the parties, the parties’ officers, agents, or employees, and “other persons who are
in active concert or participation” with the parties or the parties’ officers, agents, or
employees. FED. R. CIV. P. 65(d)(2).
After consideration of the parties’ supplemental briefs, Magistrate Judge
Wilkerson entered his Report and Recommendation (Doc. 280). Magistrate Judge
Wilkerson found that neither Dr. Trost nor Dr. Shearing are capable of performing any
injunctive relief that may be ordered since they no longer provide medical care to
Barrow. As such, any injunction ordering specific medical care would necessarily have
to be directed to someone other than Dr. Trost or Dr. Shearing, and an injunction
ordered against a non-party would be a nullity. Even if it would not be a nullity, there is
no non-party to this action who acted in concert or in privity with Dr. Trost and, thus,
could be bound by an injunction under Rule 65(d)(2)(C). Therefore, even if an injunction
were to issue, it would not be enforceable. Accordingly, Magistrate Judge Wilkerson
recommended that the motion for preliminary injunction be denied.
DISCUSSION
Where timely objections are filed, this Court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
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SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see
also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or
modify, in whole or in part, the magistrate judge’s recommended decision. Harper, 824 F.
Supp. at 788. In making this determination, the Court must look at all of the evidence
contained in the record and give fresh consideration to those issues to which specific
objections have been made. Id. (quoting 12 Charles Alan Wright et al., Federal Practice and
Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part)).
Barrow’s objection to Magistrate Judge Wilkerson’s Report and Recommendation
makes several points. Among other things, Barrow takes issue with Magistrate Judge
Wilkerson’s refusal to consider any facts related to his medical treatment prior to
November 7, 2016, his refusal to consider facts related to Wexford, and his refusal to
consider the procedural history of this motion. He also asserts he has no adequate
remedy at law, as demonstrated by the denial of his motion for Rule 54(b) certification of
the Court’s summary judgment order, the movement of the trial date, and the Seventh
Circuit’s refusal to accept his interlocutory appeal.2
Having reviewed the record, the briefs, Magistrate Judge Wilkerson’s Report and
Recommendation, and Barrow’s objection, the Court agrees with Magistrate Judge
Wilkerson that an injunction should not issue.
First, the Court notes that Barrow seeks an injunction ordering care to be
provided by someone other than Dr. Trost. Since Dr. Trost is no longer at Menard,
Barrow has already received part of the requested relief. Barrow also seeks an order
After requesting jurisdictional briefing, the Court of Appeals recently dismissed Barrow’s interlocutory
appeal.
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protecting him from retaliation by Wexford or the Illinois Department of Corrections
(“IDOC”). Neither of these entities is a defendant, however, and Barrow has no
retaliation claim in this case. Thus, a protective order against Wexford or IDOC would
be inappropriate in this instance. See Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)
(per curiam) (“a party moving for a preliminary injunction must necessarily establish a
relationship between the injury claimed in the party’s motion and the conduct asserted
in the complaint”).
Second, Barrow seeks an injunction ordering “Defendants, their successors,
agents, employees, and all person acting in concert with them, to provide community
standard of care treatment for Plaintiff’s chronic lower back degenerative disc disease,
including physical therapy, lumbar epidural steroid injections, adequate pain
management with recommended medication, continual monitoring and/or surgery if
necessary, and other medical care.” As the Court stated in its Order of March 7, 2016,
asking the Court to order “community standard of care treatment” goes beyond what is
required by the Eighth Amendment. As Barrow surely has learned, prisoners are not
entitled to demand specific care or even “the best care possible;” rather, they are entitled
only to “adequate medical care.” Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).
Furthermore, in “suits involving prison conditions, a district court must narrowly
tailor any prospective relief or injunction to what is necessary to correct a specific harm
using the least-intrusive means.” Santiago v. Walls, 196 F. App’x 416, 417 (7th Cir. 2006)
(citing 18 U.S.C. § 3626(a)(1), (2); Jones–El v. Berge, 374 F.3d 541, 545 (7th Cir. 2004)).
Directing prison employees to give Barrow “community standard of care treatment” and
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requiring a broad range of medical procedures without specific evidence of their
necessity is hardly the least intrusive means. And, the care Barrow has received to date,
as outlined by Defendants in their chronology of his treatment, does not suggest that a
broad injunction to provide “community standard of care treatment” is necessary to
correct any specific harm.
Finally, as explained by Magistrate Judge Wilkerson in his Report and
Recommendation, a preliminary injunction only binds parties, their officers, agents, or
employees, and “other persons who are in active concert or participation with” the
parties or their officers, agents, or employees. FED. R. CIV. P. 65(d)(2). A preliminary
injunction can also bind non-parties in “privity” with Defendants, but only those who
are “so identified in interest” with Defendants that it is reasonable to conclude that their
“rights and interests have been represented and adjudicated in the original injunction
proceeding.” Nat’l Spiritual Assembly of Baha’is of U.S. Under Hereditary Guardianship, Inc.
v. Nat’l Spiritual Assembly of Baha’is of U.S., Inc., 628 F.3d 837, 849 (7th Cir. 2010) (internal
quotation and citation omitted). A court “may not grant an enforcement order or
injunction so broad as to make punishable the conduct of persons who acted
independently and whose rights have not been adjudged according to law.” Regal
Knitwear Co. v. N.L.R.B., 324 U.S. 9, 13 (1945).
By asking that Defendants’ successors3 be bound by a preliminary injunction,
Barrow is essentially asking for the Court to bind those in privity with Defendants. Yet
Barrow has not identified any successor of Dr. Trost who has failed to provide proper
Barrow does not allege Defendants themselves have any employees or agents, or that any non-party
acted in concert with Defendants.
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treatment for his medical issues, nor has he explained how any such person is so
identified in interest with Dr. Trost that his or her rights could be deemed represented in
this proceeding. Thus, the motion for preliminary injunction must be denied.
The Court is mindful of the procedural history of this motion. The Court denied
Barrow’s first motion for preliminary injunction, with leave to refile once additional
discovery was complete. By the time Barrow’s second motion was reviewed by
Magistrate Judge Wilkerson, Dr. Trost was no longer providing Barrow’s care. Barrow
had an opportunity, however, at the invitation of Magistrate Judge Wilkerson, to brief
the issue of whether injunctive relief was still possible after the departure of Dr. Trost.
Barrow’s response largely was unresponsive to the issue at hand, except to argue that
Wexford was erroneously dismissed and continues to be responsible for providing his
care and treatment. Barrow’s failure to show that anyone acted in concert with Dr. Trost
or is otherwise in privity with Dr. Trost requires that his motion for preliminary
injunction be denied.
CONCLUSION
For these reasons, the Court ADOPTS the Report and Recommendation of
Magistrate Judge Wilkerson (Doc. 280) and DENIES the Motion for Preliminary
Injunction filed by Plaintiff Ronald Barrow (Doc. 214). All objections to the Report and
Recommendation are OVERRULED.
IT IS SO ORDERED.
DATED: September 5, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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