Barrow v. Wexford Health Sources, Inc. et al
Filing
100
ORDER ADOPTING 84 Report and Recommendations and DENYING 4 Motion for TRO. Signed by Judge Nancy J. Rosenstengel on 3/6/15. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BARROW,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
DR. ERIC JOHNSON, DR. CHRISTINE
LOCHHEAD, DR. J. TROST, DR.
ROBERT SHEARING, GAIL WALLS,
DR. BAKER, and WARDEN OF
MENARD,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 3:14-CV-941-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson entered on January 14, 2015 (Doc. 84).
Magistrate Judge Wilkerson recommends that Plaintiff Ronald Barrow’s Second Motion
for Temporary Restraining Order (Doc. 4) be denied. Barrow filed a timely objection on
January 26, 2015 (Doc. 85).
For the reasons set forth below, Magistrate Judge
Wilkerson’s Report and Recommendation is adopted in its entirety.
BACKGROUND
Plaintiff Ronald Barrow, an inmate at Menard Correctional Center (“Menard”),
brought this action alleging constitutional violations against various medical staff at
Menard relating to his ocular health. Specifically, Barrow claims that Defendants were
deliberately indifferent to his serious medical needs by failing to provide adequate eye
Page 1 of 10
care since 2012, resulting in the complete loss of vision in his right eye and progressive
vision loss in his left eye. Magistrate Judge Wilkerson provided an exhaustive review
of the factual background leading up to the filing of this action. The Court finds
Magistrate Judge Wilkerson’s review to be accurate and thorough.
Barrow filed his original Complaint on July 11, 2014, alleging an Eighth
Amendment deliberate indifference claim, a medical negligence claim, and also a motion
seeking a temporary restraining order (see Doc. 1). In his motion, Barrow seeks to
compel Defendants to provide immediate eye treatment, including the removal of scar
tissue in his right eye, the removal of a cataract from his left eye, and treatment for his
lower back pain (Doc. 4).
Barrow’s motion (styled Second Motion for Temporary
Restraining Order) was severed from his Eighth Amendment and medical negligence
claims (Doc. 1). The motion for temporary restraining order is the subject of this action.
CONCLUSIONS OF THE REPORT AND RECOMMENDATION
Based upon the evidence before the Court, Magistrate Judge Wilkerson found
that Barrow’s motion was incorrectly characterized as a temporary restraining order,
and that Barrow failed to meet the threshold burden for a preliminary injunction.
Magistrate Judge Wilkerson recognized that Barrow’s claims of total vision loss in his
right eye and increasingly diminished vision in his left were unsubstantiated, and that
the wealth of medical records in this matter indicated that Barrow’s likelihood of success
did not warrant injunctive relief. Additionally, Magistrate Judge Wilkerson denied
injunctive relief with respect to Barrow’s claim of back pain because it was unrelated to
the suit at hand.
Page 2 of 10
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);
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 the magistrate judge’s recommended decision. Harper, 824, F. Supp. at 788. In
making this determination, the Court must first 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). Where neither timely nor specific
objections to the Report and Recommendation are made, however, pursuant to
28 U.S.C. § 636(b), this Court need not conduct a de novo review of the Report and
Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).
Barrow has lodged a plethora of objections (some thirty-eight numbered
paragraphs) to Magistrate Judge Wilkerson’s Report and Recommendation--many of
which represent general objections or no objection at all. But only specific objections
are appropriate for review. Id. With this in mind, the Court has considered all of
Barrow’s objections and finds the following issues appropriate for review:
(1)
Whether or not an evidentiary hearing was required;
(2)
Whether Magistrate Judge Wilkerson relied upon an erroneous or
misconstrued factual account;
(3)
Whether or not Defendant Trost’s declaration is reliable; and
(4)
The characterization of Barrow’s motion as a preliminary injunction
Page 3 of 10
versus a temporary restraining order and whether the threshold
requirement was met.
Evidentiary Hearing
Barrow complains that he was unlawfully denied an evidentiary hearing on his
motion for injunctive relief. He argues that because sufficient factual discrepancies
exist, a hearing is mandatory. But the court has discretion as to whether or not an
evidentiary hearing is necessary for a preliminary injunction. See People of State of Ill. ex
rel. Hartigan v. Peters, 871 F.2d 1336, 1342 (7th Cir. 1989); see also Drywall Tapers & Pointers
of Greater New York, Local 1974 of I.B.P.A. T., AFL-CIO v. Local 530 of Operative Platerers &
Cement Masons Int’l Ass’n, 954 F.2d 69, 76 (2d Cir. 1992); Aoude v. Mobil Oil Corp., 862 F.2d
890, 893 (1st Cir. 1988); Commerce Park at DFW Freeport v. Mardian Const. Co., 729 F.2d 334,
341 (5th Cir. 1984). Here, Magistrate Judge Wilkerson found no reason to hold an
evidentiary hearing based on the robust medical record available.
And this Court
agrees that an evidentiary hearing was neither required nor necessary.
Factual Account Challenge
Barrow also makes a number of objections disputing Magistrate Judge
Wilkerson’s factual findings in the Report and Recommendation.
Specifically, he
argues that the Report and Recommendation omitted that his vision problems had been
overlooked by Defendants since 2006, that Defendant Johnson failed to address a large
floater, which was a warning sign of a detached retina, and that medical records show he
completely lost vision in his right eye prior to surgery and vision in his left was
continuously deteriorating in the same fashion.
Barrow’s argument that his vision problems were overlooked since 2006 is
Page 4 of 10
unsubstantiated. A review of the complaint and supporting record (Doc. 2, Ex. 1,
¶114-16) fail to reveal any medical record or parallel evidence beyond Barrow’s
assertion. And, even if they had, the matter is of little consequence to the injunction at
hand.
Barrow also complains that the Report and Recommendation omitted or
misconstrued that Defendant Johnson failed to address the floater in his eye. This
allegation is a nonstarter. As Magistrate Judge Wilkerson noted in the Report and
Recommendation, “[i]n late July 2012, Plaintiff began seeing floaters in his left eye, and
informed Defendant Johnson of this on July 24, 2012. However, Plaintiff asserts that
Defendant Johnson failed to respond” (Doc. 84, p. 2). The Court sees no reason to find
Magistrate Judge Wilkerson’s account as a misconstruction.
In fact, the account
appears to address Barrow’s concern directly.
And finally, Barrow argues that the Report and Recommendation is clearly
erroneous in finding no evidence to support that he experienced total vision loss in his
right eye and continued to suffer continuous vision loss in his left. For support, he
offers his own affidavit (Doc. 85, Ex. 1) and two medical records (Doc. 85, Ex. 2-3). His
affidavit merely recites his objection without offering any additional or parallel
evidence. And the medical records do not mention any continual vision loss in his left
eye or that he completely lost vision in his right prior to surgery. Here again, Barrow
has failed to substantiate his position, and the Court is unpersuaded by his objection.
Defendant Trost’s Affidavit
Barrow also attacks the truthfulness of Defendant Trost’s affidavit, pointing out
Page 5 of 10
specific contradictions with medical records or offering a personal objection where he
finds the declaration misleading (Doc. 54, Ex. 1). For example, Trost declares that
Barrow’s visual acuity on September 9, 2014, was 20/50 in his left eye, and conditions
were stable and not considered visually significant (Id. at ¶30).
Barrow presents
medical records, however, indicating his visual acuity was 20/400 or 20/80 in his left eye
on October 15, 2014 (Doc. 85, Ex. A5, p. 3). According to Barrow, this discrepancy
proves Trost’s declaration untrustworthy. A review of the medical records Trost relies
upon, however, show Barrow’s non-corrected visual acuity at the counting fingers range
in his left eye (which is very low), and his corrected visual acuity was reported to be
20/50 in his left eye (Doc.54, Ex. 2, p. 77). The record Barrow relies upon provides that
his visual acuity was 20/400 or 20/80 in his left eye, and the comments section notes that
he did not bring his glasses with him. The record is not clear whether the reported
20/400 or 20/80 was corrected or not, but the comment section seems to indicate that the
acuity numbers were uncorrected. Unfortunately, neither party has shed additional
light on this point. In any event, the record is certainly not clear enough to prove
Trost’s declaration untruthful.
Barrow also attacks Trost’s declaration for allegedly omitting information. The
Court has reviewed Barrow’s arguments and citations as to the omitted material, but is
again unpersuaded that Trost’s declaration is untrustworthy or unreliable on this basis.
The information for which Barrow complains was otherwise available to Magistrate
Judge Wilkerson. The Court finds no reason to find any omitted information here to be
misleading.
Page 6 of 10
After thoroughly reviewing Barrow’s factual objections and the record, the Court
is not persuaded that Magistrate Judge Wilkerson misapplied or failed to consider the
relevant evidence before making his recommendation. The factual accounting in the
Report and Recommendation is both thorough and accurate. Accordingly, the Court
accepts Magistrate Judge Wilkerson’s factual findings in its entirety.
Preliminary Injunction
Finally, Barrow makes a number of objections to the analysis Magistrate Judge
Wilkerson made with regard to his injunctive motion. First, he argues that his motion
was unlawfully converted from a temporary restraining order to a preliminary
injunction.
Barrow also argues that Magistrate Judge Wilkerson did not properly
analyze his claim.
Federal Rule of Civil Procedure 65 governs the issuance of injunctions and
restraining orders.
The primary difference between a temporary restraining order
(“TRO”) and a preliminary injunction is that a TRO may be issued “before the adverse
party can be heard in opposition.” FED. R. CIV. P. 65(B)(1)(c). Nomenclature is not
determinative. See Doe v. Village of Crestwood, IL, 917 F.2d 1476, 1477 (7th Cir. 1990). In
this case, Defendants had ample opportunity to be heard and fully briefed the issue. As
such, Magistrate Judge Wilkerson characterized the motion as a preliminary injunction.
The Court agrees this was proper and finds that Barrow’s motion is a de facto motion for
preliminary injunction.
In any event, whether the movant seeks a TRO or preliminary injunction he
“must show that [he] is reasonably likely to succeed on the merits, [he] is suffering
Page 7 of 10
irreparable harm that outweighs any harm the non moving party will suffer if the
injunction is granted, there is no adequate remedy of law, and an injunction would not
harm the public interest.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006).
Barrow fails to meet the threshold showing that he is reasonably likely to
succeed on the merits. He likewise has not shown that he is suffering irreparable harm
or that he has no adequate remedy in law.
Barrow is unable to establish a likelihood of success on the merits due to the
robust medical record. He argues that the records are not determinative of his claim
and are also so misleading or untruthful that they demonstrate a “culpable state of
mind” on the part of Defendants ( See Doc. 85, p. 7). But to prevail on his underlying
claim, Barrow must show that his medical condition was “objectively, sufficiently
serious” and that the “prison official acted with a sufficiently culpable state of mind.”
Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005). To demonstrate that a defendant
acted with a sufficiently culpable state of mind, a plaintiff must put forth evidence that
the defendant knew of a serious risk to the prisoner’s health and consciously
disregarded the risk.
Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006).
Negligence, gross negligence, or even “recklessness,” as that term is used in tort cases, is
not enough. Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985). Here, the medical
records demonstrate that Barrow received continual medical care and treatment for his
various eye conditions. And, as Magistrate Judge Wilkerson noted, he was seen on at
least twelve occasions between February 23, 2012, and August 22, 2014.
Barrow objects to this analysis arguing that Defendants doggedly persisted in an
Page 8 of 10
ineffective course of treatment, but he has not presented evidence to support this claim.
On the contrary, the records show numerous medical consultations and treatment over
the course of several years. Though the Court is sympathetic to Barrow’s medical
condition, he is not entitled to “unqualified access to health care.” Hudson v. McMillian,
503 U.S. 1, 9 (1992). Based on a review of the medical records, the Court agrees with
Magistrate Judge Wilkerson’s analysis. The record does not support a finding that
Defendants acted with a sufficiently culpable state of mind as to demand injunctive
relief.
Barrow’s medical records also fail to support his assertion of irreparable harm
absent injunctive relief. He argues that he previously experienced this exact malady,
only in the opposite eye, and it resulted in total vision loss until it was surgically
repaired. Thus, according to Barrow, total vision loss in his left eye is inevitable unless
he is provided the same surgical correction. Here again, however, he offers no support
for his claim of total vision loss prior to the previous surgery or that he will experience
the same in his left if surgery is denied. On the contrary, the medical records indicate
that his ocular health is stable (see Doc. 54, Ex. A, ¶30; Doc. 54, Ex. 2, p. 77).
Finally, Barrow also has an adequate remedy in law to resolve his dispute--his
underlying claim of deliberate indifference.
Though he takes issue with the trial
schedule, Barrow will have the opportunity to present his case before a jury of his peers.
In sum, the Court finds no justification for the “extraordinary and drastic
remedy” of injunctive relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Barrow
has clearly failed to reach his threshold burden for injunctive relief, and the Court finds
Page 9 of 10
no reason to reject Magistrate Judge Wilkerson’s recommendation.
CONCLUSION
Accordingly, Magistrate Judge Wilkerson’s Report and Recommendation (Doc.
84) is ADOPTED in its entirety. Barrow’s Second Motion for Temporary Restraining
Order (Doc. 4) is DENIED.
IT IS SO ORDERED.
DATED: March 6, 2015
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge
Page 10 of 10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?