Thornton v. Lashbrook et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court adopts 41 REPORT AND RECOMMENDATIONS re 4 MOTION for Preliminary Injunction filed by Charles E. Thornton and denies 4 Motion for Preliminary Injunction. See Order for details. Signed by Judge David R. Herndon on 11/30/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES E. THORTON,
Plaintiff,
v.
JACQUELINE LASHBROOK et al.,
Defendants.

No. 17-cv-761-DRH-RJD
MEMORANDUM and ORDER

HERNDON, District Judge:
Introduction & Background
This matter comes before the Court on the Report and Recommendation
(“Report”) of Magistrate Judge Reona J. Daly (Doc. 41). The Report recommends
that the Court deny plaintiff Charles E. Thorton’s motion for preliminary
injunction (Doc. 4). Thorton has objected to the Report. (Doc. 42). Based on the
applicable law, the record and the following, the Court ADOPTS the Report (Doc.
41) in its entirety, and denies the motion for preliminary injunction (Doc. 4).
Plaintiff Charles E. Thornton brought this pro se action for deprivations of
his constitutional rights pursuant to 42 U.S.C. § 1983. On July 24, 2017, the
Court screened Thornton’s complaint, and construed it to include a request for a
preliminary injunction based on his request for “immediate” injunctive relief
stemming from his Eighth Amendment claim of deliberate indifference to medical
needs based on defendants’ delay in filling plaintiff’s prescription refill for

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Neurontin (Doc. 3). In the screening Order, the Court also directed that a motion
for preliminary injunction be added to the docket sheet.
Magistrate Judge Daly held an evidentiary hearing on the motion for
preliminary injunction on August 23, 2017 (Doc. 25). Pursuant to 28 U.S.C. §
636(b)(1)(B), Magistrate Judge Daly submitted the Report on October 19, 2017
(Doc. 41). The Report recommends that the Court deny Thornton’s motion for
preliminary injunction finding that Thornton had not established irreparable
harm. The Report also found that Plaintiff had not demonstrated a likelihood of
success on the merits. The Report was sent to the parties with a notice informing
them of their right to appeal by way of filing “objections” within 14 days of service
of the Report. Plaintiff filed timely objections on October 23, 2017 (Doc. 42).
Analysis
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1),
which provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
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

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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 not demonstrated that he will suffer irreparable
harm absent injunctive relief. Plaintiff’s attempts to schedule
appointments with physicians to renew his prescription were
frustrated by consecutive cancellations that, according to
Defendant Walls’ testimony, are not likely to recur. Notably, at the
evidentiary hearing, Plaintiff was advised that he could ask a
physician about enrollment in a chronic care clinic and that he
could purchase over-the-counter medication from the
commissary, further reducing the likelihood that Plaintiff would
be without any pain medication. Plaintiff’s current prescription
expires on January 5, 2018, leaving Plaintiff with ample time to
take measures to prevent his prescription from lapsing. Further,
no medical professional has recommended that Plaintiff receive
physical therapy.”
Additionally, Plaintiff has not demonstrated a likelihood of
success on the merits. For claims of deliberate indifference, an
official “must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Jackson v. Ill. Medi-Car,
Inc., 300 F.3d 760, 765 (7th Cir. 2002). If an official reasonably
responds to a risk, even if harm was not averted, deliberate
indifference does not exist. Id.
The record establishes Plaintiff’s serious medical needs but
contains minimal evidence that Defendants acted with deliberate
indifference. Plaintiff was scheduled for an appointment each
time he requested one, and Plaintiff’s prescription was renewed
each time he saw a medical professional with the authority to
prescribe medication. Although some appointments were
cancelled, the record suggests that the appointments were
cancelled for legitimate reasons and due to circumstances outside

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of the control of Defendants. In sum, the undersigned is unable to
conclude that Plaintiff is reasonably likely to succeed on the
merits based on the current evidentiary record.
(Doc. 41, pg. 4-5).
Here, the Court agrees with Magistrate Judge Daly’s analysis in the Report
and finds that Thorton is not entitled to injunctive relief, as he has not
demonstrated that he will suffer irreparable harm absent injunctive relief, and has
not demonstrated a likelihood of success on the merits.
Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 41). The
Court DENIES Thornton’s motion for preliminary injunction (Doc. 4).
IT IS SO ORDERED.

Judge Herndon
2017.11.30
12:33:06 -06'00'
United States District Judge

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