Clark v. Wexford Health Sources, Inc. et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS: Following a de novo review, the undersigned finds that Plaintiff Ramon Clark has not made a clear showing that he is entitled to preliminary relief. Accordingly, his objections to the report and recom mendation are OVERRULED. Additionally, Clark's objection to the order denying his motion to issue an order (Doc. 115 ) is OVERRULED. The Court ADOPTS the recommendations of Magistrate Judge Williams and DENIES Clark's motion for temporary restraining order and a preliminary injunction (Doc. 36 ) and his motion in support thereof (Doc. 115 ). Signed by Chief Judge Michael J. Reagan on 3/29/2018. (rah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAMON CLARK,
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Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
DR. SHAH, DR. SANTOS, DR. GARCIA,
LISA CREBS, DEBORAH ZELASKO,
ROBERT MUELLER, SHERRY BENTON,
MICHAEL D. SCOTT, and
WARDEN OF PINCKNEYVILLE
CORRECTIONCAL CENTER
Defendants.
Case No. 16-cv-1266-MJR-SCW
MEMORANDUM AND ORDER
REAGAN, Chief Judge:
On November 21, 2016, Plaintiff Ramon Clark filed suit alleging Eighth
Amendment deliberate indifference claims against Defendants. On April 10, 2017, Clark
filed a motion for temporary restraining order and a preliminary injunction (Doc. 36).
Defendants filed responses on April 24, 2017 (Docs. 37, 38), and Clark replied on May 1,
2017 (Doc. 39). Magistrate Judge Stephen C. Williams held an evidentiary hearing on
September 22, 2017, and later ordered supplemental briefing by the parties. Following
the supplemental briefing, Judge Williams issued a report and recommendation (Doc.
118) recommending that the undersigned deny Clark’s motion. Clark timely filed
objections (Doc. 122) to which Defendants responded (Doc. 123).
Timely objections having been filed, the Court undertakes de novo review of the
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portions to the Report to which Plaintiff specifically objected. 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b); SDIL-LR 73.1(b). The undersigned can accept, reject, or modify
Magistrate Judge Williams’ recommendations, receive further evidence, or recommit
the matter with instructions. Id. For the reasons stated below, the Court ADOPTS
Magistrate Judge Williams’ recommendations and DENIES Clark’s motion for a
temporary restraining order and for a preliminary injunction.
BACKGROUND
As narrowed by the Court’s threshold order (Doc. 5), Clark alleges that he was
denied proper medical care for mass on his left testicle while incarcerated at both
Pinckneyville Correctional Center and Centralia Correctional Center. While at
Pinckneyville, Clark first complained about what he described as a painful mass on his
left testicle. He notified medical staff to request a diagnosis. He met with a nurse who
confirmed that there was a lump and who recommended an ultrasound. Wexford,
however, did not approve the ultrasound. A doctor, identified as John Doe, scheduled
Clark for a follow-up appointment. At the appointment, the John Doe doctor identified
the mass and noted that it might be epididymitis, which is a swelling of the tube that
connects the testicle with the vas deferens, and that it was not cancerous. The doctor
determined that treatment was not necessary and scheduled Clark for a follow-up
appointment. On May 4, 2016, before the appointment, Clark was transferred to
Centralia Correctional Center.
Clark notified the medical staff at Centralia about the mass and saw Dr. Shah on
May 8, 2016. Shah denied a request by Clark for pain medication and scheduled another
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follow-up appointment. Clark filed an emergency grievance regarding what he viewed
as a lack of medical care. The grievance was expedited, but the grievance officer
concluded that Clark’s medical condition was being addressed by the medical staff.
After his grievance was denied, Clark notified the medical staff that he was
having radiating pain through his left leg due to the mass. He met with Dr. Santos, who
confirmed that the mass was present and also identified it as epididymitis. As a result,
he prescribed no treatment, recommending that Clark masturbate to alleviate the pain
and tenderness. On August 17, 2016, Clark again complained about pain and was seen
by Dr. Garcia, who suspected that Clark had an infection. Dr. Garcia prescribed an
antibiotic and scheduled a follow-up ultrasound if the antibiotic did not work.
According to Clark, the antibiotic was ineffective, so he went to see Dr. Santos
again about his pain. Dr. Santos allegedly told Clark that he did not know why Dr.
Garcia had prescribed an antibiotic or ordered an ultrasound. On September 20, 2016,
Clark saw Dr. Santos again and learned that Wexford denied the request for an
ultrasound. Santos refused Clark’s request for pain medication that day and again on
October 6, 2016, prompting Clark to file suit alleging deliberate indifference to his
medical needs.
Since filing suit, Clark has continued to be seen by Dr. Santos and Dr. Garcia. In
January 2017, Dr. Santos gave Clark 200 mg of ibuprofen for his pain. On January 25,
2017, Dr. Garcia prescribed additional ibuprofen and a muscle relaxer. He also
scheduled an ultrasound. Clark received an ultrasound on February 9, 2017. He learned
that he did not have cancer but did have a benign cyst from Dr. Santos on February 17,
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2017. After his diagnosis, however, Clark maintains that the medical staff refuses to
adequately treat his pain. Defendants counter that Clark has a small epididymal cyst
measuring approximately 6mm. They are monitoring his condition for changes, but the
cysts are typically painless and require no medical treatment, except in rare cases when
they increase in size or decrease blood flow to the penis. As no complications have been
identified through monitoring, Defendants posit that removal is unnecessary at this
time.
LEGAL STANDARDS
As the review of the motion for temporary restraining order and preliminary
injunction is de novo, the Court conducts an “independent review of the evidence and
arguments without giving any presumptive weight to the magistrate judge’s
conclusion,” and “is free, and encouraged, to consider all of the available information
about the case when making this independent decision.” Mendez v. Republic Bank, 725
F.3d 651, 661 (7th Cir. 2013).
A preliminary injunction is “an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)(emphasis in original).
Accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary
injunction is an extraordinary remedy never awarded as of right”)(citation omitted).
To secure a preliminary injunction, the movant must show (1) that he is likely to
succeed on the merits, (2) that he is likely to suffer irreparable harm without the
injunction, (3) that the harm he would suffer is greater than the harm a preliminary
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injunction would inflict on defendants, and (4) that the injunction is in the public
interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010)(citing Winter, 555 U.S. at 20).
The “considerations are interdependent: the greater the likelihood of success on the
merits, the less net harm the injunction must prevent in order for preliminary relief to
be warranted.” Judge, 612 F.3d at 546. (citation omitted)
In the context of prisoner litigation, there are further restrictions on courts’
remedial power.
The scope of the court’s authority to enter an injunction in the
corrections context is circumscribed by the Prison Litigation Reform Act (PLRA).
Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary
injunction 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.” 18 U.S.C. §3626(a)(2). See also Westefer, 682 F.3d at 683
(“[T]he PLRA enforces a point repeatedly made by the Supreme Court in cases
challenging prison conditions: prison officials have broad administrative and
discretionary authority over the institutions they manage.”)(internal quotation marks
and citation omitted).
The Seventh Circuit has described injunctions like the one sought here, where an
injunction would require an affirmative act by the defendant, as a mandatory
preliminary injunction. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997).
Mandatory injunctions are “cautiously viewed and sparingly issued,” since they require
the court to command a defendant to take a particular action. Id. (citing Jordan v.
Wolke, 593 F.2d 772, 774 (7th Cir. 1978); and W.A. Mack, Inc. v. Gen. Motors Corp., 260
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F.2d 886, 890 (7th Cir. 1958)).
ANALYSIS
To show that he has a likelihood of success on the merits of his Eighth
Amendment claim, Clark must show that Defendants were deliberately indifferent to
his serious medical needs. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted)).
“Deliberate indifference to serious medical needs of a prisoner constitutes the
unnecessary and wanton infliction of pain forbidden by the Constitution.” Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to
“reasonable measures to meet a substantial risk of serious harm”—not to demand
specific care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
In order to prevail on a claim of deliberate indifference, a prisoner who brings an
Eighth Amendment challenge of constitutionally-deficient medical care must satisfy a
two-part test. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir. 2006)). The first consideration is whether the prisoner
has an “objectively serious medical condition.” Arnett, 658 F.3d at 750. Accord Greeno,
414 F.3d at 653. “A medical condition is objectively serious if a physician has diagnosed
it as requiring treatment, or the need for treatment would be obvious to a layperson.”
Hammond v. Rector, 123 F. Supp. 3d 1076, 1084 (S.D. Ill. 2015) (citing Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir.2014)). It is not necessary for such a medical condition to “be
life-threatening to be serious; rather, it could be a condition that would result in further
significant injury or unnecessary and wanton infliction of pain if not treated.” Gayton v.
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McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828
(1994) (violating the Eighth Amendment requires “deliberate indifference to a
substantial risk of serious harm”) ((internal quotation marks omitted) (emphasis
added).
Prevailing on the subjective prong requires a prisoner to show that a prison
official has subjective knowledge of—and then disregards—an excessive risk to inmate
health. Id. at 653. The plaintiff need not show the individual “literally ignored” his
complaint, but that the individual was aware of the condition and either knowingly or
recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). “Something
more than negligence or even malpractice is required” to prove deliberate indifference.
Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see also Hammond v. Rector, 123 F.
Supp. 3d 1076, 1086 (S.D. Ill. 2015) (“isolated occurrences of deficient medical
treatment are generally insufficient to establish . . . deliberate indifference”).
Clark first asks the Court to consider a portion of an expert report from unrelated
litigation, Lippert v. Godinez, N.D. Ill. Case No. 10-cv-4603, as evidence that he is not
being treated appropriately. This report is irrelevant to his claims. The Lippert plaintiff
had additional symptoms that have not manifested in Clark, and consideration of an
expert report related to another person’s injury is wholly irrelevant to whether Clark is
likely to succeed on his deliberate indifference claims.
Clark argues in his objections that he has been seeking treatment, and
complaining about his treatment, for over two years and that a lay person would
recognize his medical needs as serious. The report & recommendation acknowledges
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that Clark has an objectively serious medical condition, however, so, to the extent that
Clark argues that it does not, his objections are overruled.
Clark next challenges the finding that he has not put forth sufficient evidence at
this time to satisfy the subjective prong and, as a result, cannot demonstrate a likelihood
of success on the merits. There is no evidence in the record that demonstrates that
Defendants, aware of Clark’s medical condition, knowingly or recklessly disregarded
caring for it. The medical records indicate that Clark is being treated for his pain and
that Defendants are seeking out the cause of the pain. Defendants have tried different
courses of treatment, including antibiotics and pain medications, with the goal of
alleviating Clark’s pain. They are monitoring his cyst for complications that may
require additional treatment. The record indicates that Defendants are not disregarding
Clark’s medical needs and the evidence shows that Clark cannot satisfy the subjective
prong of the deliberate indifference standard.
On February 20, 2018, Clark filed an additional motion in support of his pending
preliminary injunction motion (Doc. 124) describing additional medical appointments
with Defendants and complaining about his care. The motion is untimely and
unnecessary, and, at best, it further evidences that Defendants are continuing to treat
Clark’s medical needs. Accordingly, the undersigned finds that Clark has not met his
burden of establishing that he has a likelihood of success on the merits. Clark’s
objections to the report & recommendation are OVERRULED, and the motion in
support of the pending preliminary injunction motion is DENIED.
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OBJECTION TO ORDER DENYING MOTION TO ISSUE ORDER
In his objection to the report & recommendation, Clark raises an objection to the
non-dispositive order denying his motion to issue order (Doc. 115). The Court must
consider Plaintiff’s timely objections to a non-dispositive order and “modify or set aside
any part of the order that is clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a);
Hall v. Norfolk Southern Railway Co., 469 F.3d 590, 594-95 (7th Cir. 2006). Under the
clear error standard, “the district court can overturn the magistrate judge’s ruling only
if the district court is left with the definite and firm conviction that a mistake has been
made.” Weeks v. Samsung Heavy Industries Co., Ltd. 126 F.3d 926, 943 (7th Cir. 1997).
Clark fails to establish that any part of the order issued by Judge Williams is
clearly erroneous or contrary to law. Clark requested that Judge Williams issue an order
directing Defendants to produce legible medical records that relate to a response to a
request for admissions made by Defendant Garcia regarding a November 8, 2017,
encounter. Judge Williams found that there was no evidence suggesting that Garcia’s
response to Clark’s request misrepresented the November 8th examination and that,
although the records were difficult to read, there was no basis for ordering Garcia to
rewrite the medical records.
Clark’s objection argues that the requested records are discoverable under Rule
26 and explains why he wants to see the records. Unfortunately, his arguments do not
rise to the level of demonstrating that Judge Williams’ order was clearly erroneous or
contrary to law. Clark has received the information to which he is entitled, and it is
neither clearly erroneous nor contrary to law to deny his request to have Defendant
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Garcia re-draft legible records. Accordingly, this objection is OVERRULED.
CONCLUSION
Following a de nono review, the undersigned finds that Plaintiff Ramon Clark has
not made a clear showing that he is entitled to preliminary relief. Accordingly, his
objections to the report and recommendation are OVERRULED. Additionally, Clark’s
objection to the order denying his motion to issue an order (Doc. 115) is OVERRULED.
The Court ADOPTS the recommendations of Magistrate Judge Williams and DENIES
Clark’s motion for temporary restraining order and a preliminary injunction (Doc. 36)
and his motion in support thereof (Doc. 115).
IT IS SO ORDERED.
DATED: March 29, 2018
s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge
United States District Court
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