Terrell v. Hall et al

Filing 54

ORDER denying 24 Motion for Preliminary Injunction; withdrawing 30 Report and Recommendations. Signed by Magistrate Judge F. Keith Ball on 9/27/18 (RBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
TODD M. TERRELL

PLAINTIFF

VS.

CIVIL ACTION NO. 3:17-cv-495-FKB

PELICIA HALL, et al.

DEFENDANTS

ORDER
This cause is before the Court on Plaintiff’s Motion for Preliminary Injunction [24] and the
undersigned’s Report and Recommendation [30]. For the reasons described below, the Report and
Recommendation is withdrawn, and the Motion for Preliminary Injunction is denied.
Terrell filed his motion for preliminary injunction “to ensure that he receives proper
medical care” related to a brain tumor. [24] at 1. He claimed that Defendants denied him any
substantive medical care related to his tumor or the effect that inmate assaults had on that
condition. Defendants did not file a response to Terrell’s motion, meaning that the undersigned
was left only with Terrell’s serious allegations and version of events when originally considering
the motion. The undersigned entered a Report and Recommendation on July 19, 2018, wherein he
recommended that the following preliminary injunction be entered:
Within seven days of this Order, Defendants Perry and Hall must allow
Plaintiff Todd M. Terrell to be seen by a qualified physician. Within twenty-one
days of that exam, Perry and Hall must file a response to this Order in which they
address Plaintiff’s allegations in the motion [24], the results of the medical
examination, and any treatment plan relating to Terrell’s alleged brain tumor or
injuries suffered in the assault. Along with that response, Perry and Hall must
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submit, under seal, an affidavit from the examining physician which includes (1) a
description of Terrell’s current medical status, including any medical conditions,
current injuries, or illnesses, (2) the treatment plan for those conditions, injuries, or
illnesses, if any, and (3) whether the physician recommends that Terrell be seen by
a specialist, and if so, when and for what purpose. If the examining physician
recommends that Terrell be seen by a specialist, Perry and Hall must ensure that
Terrell is allowed to see that specialist as soon as recommended by the physician.
[30] at 4.
Since then, Defendants have provided the Court with more information about Terrell’s
condition and medical care. The Court held an omnibus hearing on September 26, 2018. At that
hearing, Defendants provided an affidavit from Dr. William T. Brazier, a physician who provides
medical care at Central Mississippi Correctional Facility, where Terrell is housed. Defendants also
produced more than 1800 pages of Terrell’s medical records.
According to Dr. Brazier, Terrell does not actually have a brain tumor, but does have a
“congenital anomaly of cerebrovascular system,” which is stable. See [53] (filed under seal).
Terrell “has been seen by medical personnel in excess of 20 times, or more, from August 2014 to
present, for symptoms/concerns related to his complaint of brain tumor.” Id. Terrell has had
multiple x-rays, receives medication, and has had two MRIs, the most recent of which took place
on March 22, 2018. Id. These “MRI’s reported no substantial change in the anomaly as compared
to the previous studies dating back to 2014.” Id. Dr. Brazier concluded by stating that Terrell has
a follow-up MRI already scheduled, his symptoms are able to be managed using over-the-counter
medications, and that a referral to a specialist is unnecessary. Id.
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The Court gave Terrell an opportunity to review Dr. Brazier’s affidavit and comment on
any portions he believed to be inaccurate. Terrell identified no portions of the affidavit that he
believed to be incorrect.
On September 27, 2018, with the parties’ consent, District Judge Reeves referred to this
matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(c). [52]. Consequently, the
undersigned’s Report and Recommendation [30] is now superfluous, as the undersigned may now
enter an order either denying or granting any motion before the Court. Accordingly, the Report
and Recommendation [30] is withdrawn.
“Injunctive relief is an ‘extraordinary remedy.’” Dung Quoc Pham v. Blaylock, 712 F.
App'x 360, 363 (5th Cir. 2017), cert. denied, 138 S. Ct. 1548, 200 L. Ed. 2d 741 (2018) (quoting
Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). “In
order for injunctive relief to be appropriate, the movant must establish four requirements:
‘substantial likelihood of success on the merits, substantial threat of irreparable harm absent an
injunction, a balance of hardships in [the moving party’s] favor, and no disservice to the public
interest.’” Id. (quoting Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579,
582 (5th Cir. 2013)).
When the undersigned originally recommended that the District Judge grant a preliminary
injunction, he did not have the benefit of having seen any response from Defendants or from
Terrell’s medical providers. Instead, the undersigned was only able to consider Terrell’s
allegations and the facts as he presented them. Now, however, in deciding whether Terrell has
established the four elements necessary for injunctive relief, the Court also has before it the
aforementioned additional sources. Dr. Brazier’s affidavit demonstrates that Terrell has received
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treatment relating to his brain condition, that he is continuing to receive treatment for that
condition, and that it is unnecessary for him to be seen by an outside specialist. This affidavit, and
the production of 1800 pages of medical records, puts to rest the Court’s earlier concern about
Terrell’s medical treatment. Accordingly, the Court finds that Terrell has failed to establish the
four required elements necessary for preliminary injunctive relief. Specifically, he has failed to
establish a substantial likelihood that he will succeed on the merits of a claim that Defendants were
deliberately indifferent to his serious medical needs, and he has failed to establish that he faces a
substantial threat of irreparable harm absent an injunction.
The Court has considered all the parties’ arguments. Those not specifically addressed do
not change the outcome. For the reasons described above, the Report and Recommendations of
July 19, 2018 [30] is withdrawn, and Terrell’s Motion for Preliminary Injunction [24] is denied.
Respectfully submitted, this the 27th day of September, 2018.
_/s F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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