Pacheco v. Corrections Corporation of America (CCA) et al

Filing 33

ORDER denying 12 Motion for Preliminary Injunction; adopting Report and Recommendations re 25 . Signed by Honorable David C. Bramlette, III on September 2, 2015. (lda)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JORGE LUIS PACHECO
VS.

PLAINTIFF
CIVIL ACTION NO: 5:14-cv-88-DCB-MTP

CORRECTIONS CORPORATION OF AMERICA (CCA)

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation of July 20, 2015 [docket entry
no. 25]. Therein, Judge Parker recommends that Plaintiff’s, Jorge
Luis Pacheco, Motion for Preliminary Injunction [docket entry no.
12] be denied. Having reviewed the Report and Recommendation, the
plaintiff’s objections thereto, and applicable statutory and case
law, the Court finds as follows:
Plaintiff Jorge Luis Pacheco instituted this civil rights
action on October 14, 2014. In his complaint, Pacheco argues claims
based on (1) failure to hire qualified medical providers at Adams
County Correctional Facility and (2) failure to provide adequate
medical care. On February 12, 2015, Pacheco moved for a preliminary
injunction, asserting that the Court should compel further medical
care.
Judge Parker found Pacheco had not established a substantial
likelihood of success on the merits of his claim. To receive a

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preliminary injunction, a party must establish: “(1) a substantial
likelihood of success on the merits; (2) a substantial threat of
irreparable harm if the injunction is not granted; (3) that the
threatened injury outweighs any harm that the injunction might
cause to the defendant; and (4) that the injunction will not
disserve the public interest.” Opulent Life Church v. City of Holly
Springs, 697 F.3d 279, 288 (5th Cir. 2012). In order to succeed on
his claim of a failure to provide adequate medical care, Pacheco
must

show

deliberate

indifference

on

the

part

of

Defendant

Corrections Corporation of America (“CCA”). See Estelle v. Gamble,
429 U.S. 97, 104 (1976). The standard is the same whether applied
to “prison doctors in their response to the prisoner’s needs or
[to] prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once
prescribed.” Id., at 104-05. “A serious medical need is one for
which treatment has been recommended or for which the need is so
apparent that even laymen would recognize that care is required.”
Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
Judge Parker found that Pacheco conceded he had received some
medical treatment for his condition already but that Pacheco
alleged CCA “was nonetheless deliberately indifferent for failing
to provide him the correct dosage of penicillin and a spinal tap
test.” Report & Recommendations 3. Judge Parker further found that
Pacheco’s only evidence in support of the necessity of this

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additional treatment was: (1) an affidavit signed by a doctor in
Colombia who based his recommendation on Pacheco’s “report of his
symptoms rather than a physical examination or clinical testing”
and (2) an unsupported allegation that “a physician at a Jackson
hospital also told him that he required a spinal tap and additional
medication.” Report & Recommendation 3. Judge Parker further found
that the requested spinal tap had been scheduled but then delayed.
Pacheco

timely

filed

his

objections

to

the

Report

and

Recommendation. CCA did not respond to the objections or inform the
Court that it would not respond, as required by Uniform Local Civil
Rule 72(a)(3). In his objections, Pacheco argues that he has
established the four elements necessary to receive a preliminary
injunction. See Objection to Report & Recommendation, ECF No. 30.
“[P]arties filing objections must specifically identify those
findings objected to. Frivolous, conclusive or general objections
need not be considered by the district court.” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles
v. Wainwright, 667 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)).
Meritorious objections mandate a de novo review of the Report and
Recommendations. 28 U.S.C. § 636(b)(1) (2009). Merely reurging the
allegations in the petition or attacking the underlying conviction
is insufficient to receive de novo review, however. Those portions
of the report not objected to are reviewed only for plain error.
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

3

Cir. 1996) (en banc), superseded by statute on other grounds, 28
U.S.C. § 636(b)(1).
Pacheco’s objection mandates de novo review. Judge Parker’s
recommendation emphasized the fact that the only recommendation
Pacheco had supported was “a general objection signed by a foreign
physician

who

has

Recommendation

3.

never

seen

Pacheco

or

treated”

attached

to

Pacheco.

his

Report

objections

&

the

recommendation of the previously alluded to doctor at a Jackson
hospital. See Objections Ex. 1, ECF No. 30-1.
As to the dosage amount of penicillin, the Fifth Circuit has
stated “the decision whether to provide additional treatment is a
classic example of a matter for medical judgment.” Gobert, 463 F.3d
at 346 (internal quotation marks omitted). And “a prisoner’s
disagreement

with

his

medical

treatment,

absent

exceptional

circumstances[,]” “do[es] not constitute deliberate indifference.”
Id. Pacheco has not yet shown the existence of any exceptional
circumstance.
As to the rescheduled spinal tap, “[t]he mere delay of medical
care can constitute an Eighth Amendment violation but only if there
has been deliberate indifference that results in substantial harm.”
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (internal
quotation marks omitted). “[S]evere pain caused by the refusal to
immediately

treat

pain”

can

satisfy

the

substantial

harm

requirement. Williams v. Certain Individual Emps. of Tex. Dep’t of

4

Criminal Justice-Institutional Div. at the Jester III Unit, 480 F.
App’x 251, 257 (5th Cir. 2010) (per curiam) (citing Harris v.
Hegmann, 198 F.3d 153, 159-60 (5th Cir. 1999)). But Pacheco has not
shown the necessary substantial harm caused by a delay in treatment
to make it appear likely he will succeed on the merits of his
claim.
Having conducted a de novo review of the portions of the
Report and Recommendations objected to and reviewed the remainder
for plain error, the Court is satisfied that Judge Parker has
issued a thorough opinion. Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendations is hereby ADOPTED.
FURTHER

ORDERED

that

the

Plaintiff’s

Objections

to

the

Magistrate Judge’s Report and Recommendations are OVERRULED.
FURTHER ORDERED that the Motion for Preliminary Injunction is
DENIED.

SO ORDERED this the 2nd day of September 2015.
s/David Bramlette
UNITED STATES DISTRICT JUDGE

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