Odom v. Hiland et al

Filing 9

MEMORANDUM & ORDER denying 8 Motion for Preliminary Injunction; denying 8 Motion for TRO. Signed by Senior Judge Thomas B. Russell on 6/10/2013. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
GLENN D. ODOM, II

PLAINTIFF

v.

CIVIL ACTION NO. 5:13CV-P29-R

STEVE HILAND et al.

DEFENDANTS
MEMORANDUM AND ORDER

This matter is before the Court on a motion for a temporary restraining order (TRO) and
preliminary injunction by pro se Plaintiff Glenn D. Odom, II. For the reasons that follow, the
motion will be denied.
I.
Plaintiff, an inmate at the Kentucky State Penitentiary, requests a TRO and preliminary
injunction “to ensure that he receive proper medical care.” Specifically, he requests the Court to
award a TRO requiring Defendants “to transport plaintiff to a hand specialist for an examination
and a plan of treatment by a qualified specialist” and a preliminary injunction requiring
Defendants “to carry out that plan of treatment.”
Plaintiff’s motion states that he was “assaulted by three (3) gang members with master
locks and his finger/hand was broken . . . .” Plaintiff’s attachments to the complaint show that
the injury occurred on February 11, 2011, while he was incarcerated in Indiana. His attachments
also show that at the time of the injury he received two x-rays and treatment. Plaintiff states that
he has “continuously” asked Dr. Hiland to “pull him out of his cell to examine his deformed and
damaged ligament/tendon . . . [and] Dr. Steve Hiland continuously refuses to pull plaintiff out of
his cell for a physical examination.” Plaintiff’s attachments to the complaint include a progress
note signed by Registered Nurse Terri Jones stating, “MD LOOKED AT FINGER. NO NEW

ORDERS FROM MD.” Plaintiff states that he experiences “pain, stiffness, and limited
movement in his hand/finger and cannot rotate it properly.” Plaintiff states that he is threatened
with irreparable harm. He states, “If he does not receive proper treatment at the proper time, he
may never regain full movement of his index finger and metacarpal bone.”
II.
Both a TRO and a preliminary injunction are extraordinary remedies “which should be
granted only if the movant carries his or her burden of proving that the circumstances clearly
demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.
2002); see also Norwalk Core v. Norwalk Bd. of Educ., 298 F. Supp. 203, 206 (D. Conn. 1968).
To determine whether to grant a TRO or preliminary injunction, the district court is required to
consider four factors: “(1) whether the movant is likely to prevail on the merits; (2) whether the
movant would suffer an irreparable injury if the court does not grant a preliminary injunction;
(3) whether a preliminary injunction would cause substantial harm to others; and (4) whether a
preliminary injunction would be in the public interest.’” Abney v. Amgen, Inc., 443 F.3d 540,
547 (6th Cir. 2006) (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson
Cnty., 274 F.3d 377, 400 (6th Cir. 2001)).
These factors are not “rigid and unbending requirements,” as there is no “fixed legal
standard” in determining whether to award immediate relief. In re: Eagle-Picher Indus., Inc.,
963 F.2d 855, 859 (6th Cir. 1992). As to the irreparable-harm determination, there must be an
actual, viable, presently existing threat of serious harm. Mass. Coal. of Citizens with Disabilities
v. Civil Def. Agency and Office of Emergency Preparednesss of Mass., 649 F.2d 71, 74 (1st Cir.
1981). “Despite the overall flexibility of the test for preliminary injunctive relief, and the

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discretion vested in the district court, equity has traditionally required such irreparable harm
before an interlocutory injunction may be issued.” Friendship Materials, Inc. v. Mich. Brick,
Inc., 679 F.2d 100, 103 (6th Cir. 1982). The plaintiff must show harm that is not remote or
speculative, but is actual and imminent. Abney v. Amgen, Inc., 443 F.3d at 552. The injury must
be of such imminence that there is a clear and immediate need for relief in order to prevent harm.
Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985).
Moreover, “the proof required for the plaintiff to obtain a preliminary injunction is much more
stringent than the proof required to survive a summary judgment motion.” Leary v. Daeschner,
228 F.3d 729, 739 (6th Cir. 2000).
Plaintiff has failed to show both a likelihood of success on the merits and irreparable
harm for purposes of being granted immediate relief.
First, to establish an Eighth Amendment violation premised on inadequate medical care,
a prisoner must demonstrate that the defendant acted, or failed to act, with “deliberate
indifference to serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)); Terrance v. Northville Reg’l Psychiatric Hosp., 286
F.3d 834 (6th Cir. 2002). To rise to the level of an Eighth Amendment violation, a prison
official must “know of and disregard an excessive risk to inmate health or safety; the official
must both be aware of the facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. at
837-38.
Where a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess medical

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judgments. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976).
We distinguish between cases where the complaint alleges a complete
denial of medical care and those cases where the claim is that a
prisoner received inadequate medical treatment. Where a prisoner
has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to
second guess medical judgments and to constitutionalize claims
which sound in state tort law.
Id. (citations omitted). Mere disagreement over medical treatment cannot give rise to a
constitutional claim of deliberate indifference. Durham v. Nu’Man, 97 F.3d 862, 869 (6th Cir.
1996).
Based on Plaintiff’s own attachments to the complaint, he received two x-rays and
treatment at the time of his injury and shortly thereafter while incarcerated in Indiana. He was
not referred to a hand specialist or recommended for surgery at that time. He presents no
evidence that he now requires a hand specialist or surgery two years after the fact. Moreover,
according to Plaintiff’s medical record that he produced, on December 20, 2012, medical staff
“looked at” his finger and did not find treatment necessary. While Plaintiff contends that he
should be sent to a hand specialist and receive surgery, such disagreement constitutes a dispute
over the adequacy of treatment, which does not give rise to an Eighth Amendment deliberateindifference claim. Westlake v. Lucas, 537 F.2d at 860 n.5.
Therefore, Plaintiff fails to establish that he is likely to succeed on the merits to warrant
the extraordinary remedy of a TRO or preliminary injunction.
Secondly, Plaintiff has also failed to show irreparable injury of a nature that is “‘actual
and imminent’ harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen,
Inc., 443 F.3d at 552. The injury occurred on February 11, 2011. Plaintiff does not allege that
his injury is worsening, nor does he present evidence of harm that requires immediate relief.
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“[T]he proof required for the plaintiff to obtain a preliminary injunction is much more stringent
than the proof required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d
729, 739 (6th Cir. 2000). Plaintiff has failed to set forth sufficient facts to support the need for
emergency relief to prevent him from suffering irreparable harm. “The speculative nature of
[Plaintiff’s] claim of future injury requires a finding that this prerequisite of equitable relief has
not been fulfilled.” City of Los Angeles v. Lyons, 461 U.S. at 111.
The third and fourth elements also weigh against granting preliminary injunctive relief.
Taking decisions out of the hands of prison officials and medical staff under these circumstances
could cause substantial harm in disrupting prison administration. Moreover, the Court’s
intervention in internal prison operations without an urgently compelling and extraordinary
reason is viewed as against the public interest. Lang v. Thompson, No. 5:10-CV-379, 2010 U.S.
Dist. LEXIS 126890, at *19 (E.D. Ky. Nov. 30, 2010) (“[J]udicial interference is necessarily
disruptive, and absent a sufficient showing of a violation of constitutional rights, the public
welfare suffers if such extraordinary relief is granted in the prison context.”).
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for a temporary
restraining order and preliminary injunction (DN 18) is DENIED.
Date:

June 10, 2013

cc:
Plaintiff, pro se
4413.010

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