Curry v. Butler et al
ORDER ADOPTING 83 REPORT AND RECOMMENDATIONS denying 11 MOTION for Preliminary Injunction filed by Steven Curry. Signed by Judge David R. Herndon on 3/12/2018. (ceh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY BUTLER, et al.,
MEMORANDUM and ORDER
HERNDON, District Judge:
INTRODUCTION & BACKGROUND
This matter comes before the Court on the Report and Recommendation
(“the Report”) issued by Magistrate Judge Reona J. Daly on February 14, 2018
The Report recommends that the Court deny plaintiff’s motion for
preliminary injunction (doc. 11). Plaintiff Curry has objected to the Report (doc.
86) and defendants filed a response to plaintiff’s objections (doc. 91). Based on
the applicable law, the record, and the following, the Court ADOPTS the Report
(doc. 83) in its entirety and DENIES the motion for preliminary injunction (doc.
Plaintiff Curry brought this pro se action for deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983. The Court screened Curry’s
complaint pursuant to 28 U.S.C. § 1915A and the following claims were allowed
Count 1 – Butler, Brooks, Walls, Trost, Siddiqui, and Lashbrook were
deliberately indifferent to Plaintiff’s serious heart condition in violation of
the Eighth Amendment;
Count 2 – Wexford Health Sources had an unconstitutional policy or
custom that prevented Plaintiff from receiving treatment for his serious
heart condition in violation of the Eighth Amendment;
Count 3 – Butler, Trost, and Lashbrook were deliberately indifferent to
Plaintiff’s unconstitutional conditions of confinement in violation of the
During this screening, the Court also noted that plaintiff included a request for a
preliminary injunction in his prayer for relief and directed the Clerk of Court to
docket a motion for the same, which is now the subject of this Order.
Specifically, the motion for preliminary injunction requests the Wexford
defendants provide plaintiff surgery to close the “hole” in his heart caused by a
small ventricular septal defect, and that defendant Lashbrook transfer plaintiff to
another prison that has adequate medical equipment and staff to monitor and
treat plaintiff accordingly.
Defendants opposed the motion for preliminary injunction, (doc. 47),
arguing that plaintiff failed on all prongs of the preliminary injunction standard
and that the type of relief sought by plaintiff, namely one that requires an
affirmative act by defendants, is “cautiously viewed and sparingly issued.”
Graham v. Med. Mut. Of Ohio, 130 F.3d 293, 295 (7th Cir. 1997).
supported his motion in his reply (doc. 52) filed January 18, 2018. Magistrate
Judge Daly held an evidentiary hearing on the motion for preliminary injunction
on January 30, 2018 (doc. 64). Pursuant to 28 U.S.C. § 636(b)(1)(B), Judge Daly
submitted the Report on February 14, 2018 (doc. 83). The Report recommends
the Court deny Curry’s motion for preliminary injunction finding that Curry failed
to show that he will suffer irreparable harm absent injunctive relief and that
plaintiff failed to show that he is reasonably likely to succeed on the merits of his
claims that defendants are deliberately indifferent to his serious heart condition.
Id. p. 4. The Report was sent to the parties with a notice informing them of their
rights to appeal by way of filing “objections” within 14 days of service of the
Report. Plaintiff timely filed objections on February 23, 2018 (doc. 86).
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1)(C),
which provides in part:
A judge of the court shall make a de novo determination of those
the report or
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the
magistrate judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de
novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the
Court reviews those unobjected portions for clear error. Id. In addition, failure
to file objections with the district court “waives appellate review of both factual
and legal questions.” Id. Under the clear error standard, the Court can only
overturn a Magistrate Judge's ruling if the Court is left with “the definite and firm
conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
Specifically, the Report found:
Plaintiff has been seen by internal medical professionals at Menard for
complaints regarding his heart on numerous occasions. Additionally,
since April of 2016, Plaintiff has been referred to outside healthcare
professionals on six occasions. On April 5, 2016, Plaintiff was sent out
on medical furlough to Memorial Hospital of Carbondale (“Memorial”)
for a transesophageal echocardiography (TEE). Plaintiff was then
referred to a cardiologist at Prairie Cardiovascular (“Prairie”) in
Carbondale. On June 16, 2016, Plaintiff was seen by Dr. Zeglin at
Prairie who confirmed the TEE showed a small ventricular septal defect
(“VSD”). She determined Plaintiff would need another TEE in the near
future to characterize the outlet VSD better and see whether Plaintiff
was a candidate for transcutaneous versus surgical repair as well as
timing of the repair. (Defendant’s Exhibit 1 at 110) On August 10,
2016, Plaintiff was sent for a follow-up appointment at Memorial where
another TEE was performed. (Doc. 73 at 105). On December 9, 2016,
Plaintiff saw Dr. Zeglin for a follow-up appointment. (Id. at 70). On
August 4, 2017, Plaintiff had another follow-up with Dr. Zeglin where he
was prescribed Lopressor and a repeat echocardiogram and pulmonary
function test (“PFT”) (Defendant’s Exhibit 1 at 251, 254).
September 12, 2017, Plaintiff underwent the PFT at St. Joseph
Memorial Hospital which showed (1) no evidence of air flow obstruction
or restrictive lung disease, (2) no air trapping or hyperinflation, (3)
moderate restriction in TLC, and (4) normal diffusion capacity (Id. at
260). Plaintiff’s medical records indicate he has been approved for
another cardiovascular follow-up to be scheduled in the near future.
Here, Plaintiff has failed to show that he will suffer irreparable harm
absent injunctive relief. There is no evidence that he is in immediate
need of heart surgery. Further, Plaintiff has failed to show that he is
reasonably likely to succeed on the merits of his claim that Defendants
are deliberately indifferent to his serious heart condition. All medical
records indicate that his heart is being regularly monitored by medical
staff, including cardiologists, and that heart surgery to repair the
ventricular septal defect has not yet been prescribed. The cardiologist
has documented that surgical repair or heart catheterization may be
prescribed in the future. At this time, repair of the VSD has not been
Plaintiff has also failed to show that he will suffer irreparable harm
absent a transfer to Dixon Correctional Center. Plaintiff testified that he
could not identify any medical equipment present at Dixon that is not
present at Menard.
Medical staff at Menard is aware of, and
monitoring, Plaintiff’s medical conditions and he is being treated by
outside specialists. Plaintiff provided no evidence of how his medical
care would differ upon transfer.
Doc. 83, pgs. 3-4.
Here, the Court agrees with Magistrate Judge Daly’s analysis in the Report
and finds that Curry is not entitled to injunctive relief.
In order to obtain a
preliminary injunction, the moving party must how that: (1) they are reasonably
likely to succeed on the merits; (2) no adequate remedy at law exists; (3) they will
suffer irreparable harm which, absent injunctive relief, outweighs the irreparable
harm the respondent will suffer if the injunction is granted; and (4) the injunction
will not harm the public interest.” Joelner v. Village of Washington Park, Illinois,
378 F.3d 613, 619 (7th Cir. 2004). A preliminary injunction is a drastic remedy
and 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)
(internal quotations omitted).
The Court is not convinced that plaintiff has
satisfied any of the prongs required for injunctive relief.
In his objections (doc. 86), plaintiff writes lengthy recitations of facts and
arguments touching on matters outside the scope of the Report. See e.g. id. at p.
18, arguing for why plaintiff should be appointed counsel. When plaintiff does hit
on his request for preliminary injunction, the Court determines his objections
focus on prongs 1 and 3, success on the merits and irreparable harm. However,
plaintiff’s urgings do not amount to proving Judge Daly wrong. In fact, it appears
more that plaintiff’s objections support the Report’s findings of fact and
conclusions of law on these issues, as plaintiff admits that no recommendation
was ever made to have the “hole” in his heart repaired at this time. Id. at p 8.
Instead, the objections demonstrate that plaintiff simply does not agree with the
conclusion that outside medical providers have arrived at regarding the necessary
treatment regarding the VSD, i.e. no surgery.1 See Johnson v. Doughty, 433 F.3d
1001, 1013 (7th Cir. 2006) (Mere dissatisfaction of disagreement with a doctor’s
course of treatment is generally insufficient to show deliberate indifference.)
Plaintiff has been referred and allowed medical care outside of Menard on
numerous occasions and the record proves to the Court that Wexford has not
instituted any policy to deny those in need the opportunity to have necessary
medical procedures performed.
The staff at Menard has monitored and
continues to monitor plaintiff’s health conditions and have acted in accordance of
Accordingly, the Court agrees with the Report and finds Curry not entitled
to injunctive relief as he has not demonstrated a likelihood of success on the
What is construed as objections relating to plaintiff’s claim of deliberate indifference by
defendants towards the living conditions at Menard, the Court finds plaintiff has solely repeated
what he has stated before, in that his grievances to defendants have gone unanswered. Based on
the record, these assertions have no merit. Additionally, plaintiff has provided no evidence on
how his care upon transfer would differ.
merits on the deliberate indifference claims nor shown that he will suffer
irreparable harm absent injunctive relief.
Therefore, the Court ADOPTS the
Report in its entirety (doc. 83) and DENIES plaintiff’s motion for preliminary
injunction (doc. 11).
IT IS SO ORDERED.
United States District Judge
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