Addison v. McVea et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS 37 . Signed by Chief Judge Sarah S. Vance on 7/10/14. (NEF: Mag 2, Mag 2 CRD and Staff Atty)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TED ADDISON

CIVIL ACTION

VERSUS

NO: 13-5264

CASEY McVEA ET AL.

SECTION: R
ORDER AND REASONS

The plaintiff, Ted Addison and the defendants, Casey McVea,
et al. object to Magistrate Judge Joseph Wilkinson’s Report and
Recommendation (“R&R), which recommends that the plaintiff’s
complaint should not be dismissed as a screening matter under 28
U.S.C. § 1915A and that further proceedings should be scheduled.
Having reviewed de novo the record, the Magistrate’s R&R,1 the
plaintiff and defendants’ objections thereto,2 and the applicable
law, the Court agrees with Judge Wilkinson’s recommendation and
adopts the R&R as its opinion.
Defendants object to one aspect of Judge Wilkinson’s R&R:
that claims for injunctive relief remain in this suit.3 The
defendants argue that because this Court found the plaintiff’s
motion for a preliminary injunction and a restraining order moot,
Judge Wilkinson erred in stating that claims for injunctive
relief remain in this suit.4 The Court finds this objection to be

1

R. Doc. 37.

2

R. Doc. 41; R. Doc. 40.

3

R. Doc. 40 at 2.

4

R. Doc. 40 at 2.

without merit. When this Court dismissed as moot the plaintiff’s
motion for a temporary restraining order and preliminary
injunction,5 it adopted Judge Wilkinson’s previous R&R on the
motion, which stated,
Because plaintiff has received the relief sought in his
motion for preliminary injunctive relief, it is
unnecessary for the court to order it, and the motion
is moot. The remainder of the plaintiff’s complaint for
damages and addressing other components of his claims
of inadequate medical care will remain pending for
later disposition.6
The scope of the requested injunctive relief in the plaintiff’s
motion for preliminary injunction is narrower than that of his
claims for injunctive relief in the initial complaint. In his
motion for a

preliminary injunction, the plaintiff requested

only that the defendants “arrange for, and provide without
further delay the prescribed medical procedure.”7 In his initial
complaint, however, the plaintiff requests an injunction
"requiring the named defendants [to] provide the necessary
medical care to correct the diagnosed condition," including any
injury caused by delay in undergoing surgery, as well as "any
physical therapy, medications, and follow up care ordered by an
expert in the pertinent field of medicine.8 As such, outstanding

5

6

R. Doc. 36.
R. Doc. 35 at 2 (emphasis added).

7

R. Doc. 8 at 3.

8

R. Doc. 1 at 36.
2

claims for injunctive relief related to the plaintiff’s claims of
inadequate medical care remain.
Defendants request that the Court identify against which
defendants the claim for injunctive relief is made. It is clear
from plaintiff's complaint that he seeks injunctive relief from
all defendants.9 If certain parties believe they are not
appropriate defendants with respect to an order for injunctive
relief, they are free to raise that issue in a motion to dismiss.
Plaintiff objects to one aspect of the R&R: the statement
that the medical records establish that the medical staff
provided the plaintiff with a back brace and ibuprofen.10
Plaintiff contends that the back brace was his personal property,
which he was only allowed to use after much argument with the
medical staff. He further claims that he obtained the ibuprofen
himself from "various sources about the prison." Because the
Court is allowing plaintiff's claims to proceed, the true source
of these items is irrelevant to today's disposition. Plaintiff is
encouraged to introduce evidence as to the source of the brace
and ibuprofen in further proceedings before the magistrate judge.
New Orleans, Louisiana, this 10th day of July, 2014.
__
____________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

9

10

R. Doc. 1 at 36.
R. Doc. 41 at 2.
3