DeBlasio v. Baldwin et al
Filing
57
ORDER denying 2 Motion for Preliminary Injunction and adopting 54 Report and Recommendations. See Order for details. Signed by Judge David R. Herndon on 2/23/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN DEBLASIO,
Plaintiff,
v.
No. 17-0773-DRH
JOHN R. BALDWIN,
et al.,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is a February 5, 2018 Report and Recommendation
(“the Report”) issued by Magistrate Judge Donald G. Wilkerson (Doc. 54).
Magistrate Judge Wilkerson recommends that the Court deny DeBlasio’s motion for
preliminary injunction (Doc. 2). The parties were allowed time to file objections to
the Report. On February 21, 2018, DeBlasio filed an objection to the Report (Doc.
55). Based on the applicable law, the record and the following, the Court ADOPTS
the Report.
On July 24, 2017, DeBasio filed a 42 U.S.C. § 1983 complaint alleging that
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defendants have been deliberately indifferent to his serious medical needs (Doc. 1).
Specifically, DeBasio alleges that he has been denied adequate medical care
concerning his chronic abdominal pain, chronic constipation, severe back pain,
and extreme levels of hypertension (Doc. 1).
Along with his complaint, DeBlasio
attached a memorandum in support of his request for preliminary injunction (Doc.
3). On July 27, 2017, the Court conducted a preliminary review of DeBlasio’s
complaint and allowed the following claim to proceed:
Count 1- Defendants responded to plaintiff’s serious medical needs
(chronic back and abdominal pain, chronic constipation, fractured
vertebrae and elevated blood pressure) with deliberate indifference, in
violation of the Eighth Amendment.
(Doc. 8, p. 8). Also in this review of the complaint, the Court referred the motion
for preliminary injunction to Magistrate Judge Wilkerson.
In his motion for
preliminary injunction, DeBasio seeks access to a medical specialist, specifically a
gastroenterologist, in order to properly diagnose his alleged ongoing and worsening
health conditions (Doc. 3). Defendants responded to the motion for preliminary
injunctions (Docs. 41 & 42). Thereafter, Magistrate Judge Wilkerson issued the
Report recommending that the Court deny the motion for preliminary injunction
(Doc. 54) and DeBlasio filed an objection (Doc. 55).
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
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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 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).
In order to obtain a preliminary injunction under Rule 65, DeBlasio must
demonstrate that: (1) his underlying case has some likelihood of success on the
merits; (2) no adequate remedy at law exists, and; (3) DeBlasio will suffer
irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th
Cir. 2007). If those three factors are shown, the district court must then balance
the harm to each party and to the public interest from granting or denying the
injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v.
Salazar, 196 F.3d 809, 813 (7th Cir. 1999). The United States Supreme Court has
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emphasized that 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.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 870 (7th
Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in
original)).
Magistrate Judge Wilkerson found that DeBasio’s motion for preliminary
injunction failed on the issue of irreparable injury. 1 Specifically, the Report
concluded:
“Where DeBasio’s claim fails, however, is on the issue of irreparable
injury. As stated above, the injunction DeBlasio seeks is access to a
gastroenterologist. It is undisputed that DeBlasio suffers from
chronic abdominal pain and constipation (Doc. 41, pp. 5-6; Doc. 42, p.
3). However, on October 24, 2017, DeBasion was seen by Dr. Ahmed
in the medical ward and evaluated for a referral to a gastroenterologist
(Doc. 42, p. 3). Dr. Ahmed determined DeBlasio did not need to see a
gastroenterologist but that a referral for a colonoscopy was
appropriate (Doc. 42, p. 3). A colonoscopy was performed on
November 14, 2017 at Carle Foundation Hospital (Doc. 51, p. 1). The
colonoscopy report states DeBlasio’s colon is normal and there was no
cancer or large polyps present (Doc. 51-1, p. 1).
The only
recommendation resulting from the procedure was that DeBlasio
undergo another colonoscopy in three years (Doc. 51-1, p. 1). Thus,
the Court finds that there is no evidence of imminent harm should
DeBlasio be treated by medical staff at Lawrence Correctional Center
rather than being referred to an outside gastroenterologist.”
(Doc. 54, p. 6).
After reviewing DeBlasio’s objection, the Court finds that it misses the mark.
1 Magistrate Judge Wilkerson found that DeBasio met the burden of demonstrating a likelihood on
the success of the merits and no adequate remedy at law. As DeBlasio’s objection does not object to
these findings, the Court need not address these issues.
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He rehashes his previous medical history and rehashes his previous arguments
that are not relevant to the irreparable harm inquiry.
He maintains that the
medical staff did not adhere to or follow the correct procedure for colonoscopy
preparation. He maintains that the medical staff was negligent and careless and
that because of this negligence the results of the colonoscopy may have rendered
different results.
The record reflects that DeBlasio did have a colonoscopy
performed by gastroenterologist Dr. Andrew Batey on November 14, 2017 at Carle
Foundation Hospital (Doc. 51-1).
Dr. Batey issued the following as to his
impression and recommendations of the DeBasio’s exam:
Impression:
-Poor bowel cleansing; the entire examined colon is normal on direct
and retroflexion views though to the extent of visibility.
-No cancer or big polyps; no specimens collected.
Recommendations:
-Repeat colonoscopy sooner in 3 years for screening purposes (with
better colon cleansing)
-High fiber diet with fiber supplements.
-Miralax 17 gm dissolve in a glass of water daily.
-Continue present medications otherwise.
(Doc. 51-1).
In addition, DeBlasio continues to be monitored at Lawrence
Correctional Center for his complaints regarding abdominal pain and constipation.
Further, the record reflects that DeBlasio continues to receive the medications and
evaluations necessary for his complaints. Thus, the Court agrees with the Report
that DeBlasio has not met his burden in order to obtain a preliminary injunction.
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Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 54). The
Court DENIES DeBlasio’s motion for preliminary injunction (Doc. 2).
Judge Herndon
2018.02.23 12:05:42
-06'00'
IT IS SO ORDERED.
United States District Judge
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