Moore v. Warden, Pickaway Correctional Institution et al

Filing 43

REPORT AND RECOMMENDATIONS that 33 MOTION for Temporary Restraining Order be DENIED - objections due w/in fouteen (14) days. Signed by Magistrate Judge Norah McCann King on 09/20/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GEORGE MOORE,
Plaintiff,
vs.

Civil Action 2:11-CV-132
Judge Watson
Magistrate Judge King

WARDEN, PICKAWAY CORRECTIONAL
INSTITUTION, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983,1 alleging that
defendants deprived him of medication and food in violation of his
rights under the Eighth Amendment to the United States Constitution.
This matter is before the Court on plaintiff’s Request for Temporary
Restraining Order, Doc. No. 33 (“Plaintiff’s Motion”).

For the

reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be
DENIED.
I.

BACKGROUND
Plaintiff, currently incarcerated at Pickaway Correctional

Institution (“PCI”), alleges that he is medically and physically
handicapped.

Amended Complaint, Doc. No. 9.2

Plaintiff specifically

alleges that he suffers from various types of cancer and degenerative

1

Although plaintiff filed this action on a form habeas corpus petition
under 28 U.S.C. § 2254, Doc. No. 1, the Court construed the action as being
brought pursuant to Section 1983. Order of Transfer, Doc. No. 2.
2

The Amended Complaint is verified.

bone disease and that he suffered strokes in 2006 and in 2009 and a
heart attack in 2010.

Id. at ¶¶ B, C.

As a result, plaintiff “has

very limited mobility and is wheelchair bound (has been for several
years).”

Id.

In May 2010, plaintiff requested that his medications be renewed,
but was advised that a Dr. Enzeke had cancelled all of plaintiff’s
medications.

Id. at ¶ E.

On May 29, 2010, plaintiff was transported,

unconscious, to The Ohio State University (“OSU”) emergency room.

Id.

Plaintiff awoke to “terrible pain” and bruising in his extremities,
which he alleges “was caused by pinching to make me respond.”

Id.

His chest and nipples were bruised as well, allegedly because of
“Dutch Rubs.”

Id.

During plaintiff’s stay at the hospital in May 2010, procedures
involving a heart stent and catheter caused him to contract
cellulitis; contrary to OSU hospital policy, however, he did not
receive treatment for the infection until he “was discharged to the
Corrections Medical Center.”

Id.

In addition, plaintiff alleges, Dr.

Enzeke advised an OSU physician that plaintiff “was old and senile and
had forgotten to take the medication” previously prescribed to him.
Id.
On August 30, 2010, Dr. Awan prescribed two types of medication
for plaintiff:

Ultram for back pain associated with plaintiff’s

degenerative bone disease and Nitroglycerine because of plaintiff’s
cardiac condition.

Id. at ¶ D.

On September 8, 2010, “the [PCI]

nurse refused to give” plaintiff his medicine because “there was no
prescriptions.”

Id.

After again requesting and being denied the

medication, plaintiff saw the head nurse who gave plaintiff the
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Nitroglycerine “but stated the Ultram would have to be picked up at
the pill window.
medication.”

When pill time came the pill nurse again refused the

Id.

A dispute arose and, once the medical record was

verified, plaintiff “was placed in the hospital but was given
commissary restriction for cursing the nurse.”

Id.

Plaintiff alleges

that he was denied these two medications from September 8 through
September 16, 2010.

Id.

On January 7, 2011, plaintiff alleges, PCI Sergeant Justice “took
my ID badge as punishment for a minor infraction because he knew I
would not be able to obtain meals” without the badge.

Id.

After

plaintiff filed an informal complaint about this incident, he alleges,
“I was set up by a cohort of Sgt. Justice’s on a phony drug charge[.]”
Id.

Following a hearing before the Rules Infraction Board (“RIB”),

plaintiff was found guilty of possession and sale of Ultram.
prescription for Ultram was discontinued.

Id.

His

Id.

On February 7, 2011, plaintiff filed the original Complaint,
naming as defendants PCI Warden Cook and Ernie Moore, Director of the
Ohio Department of Rehabilitation and Corrections (“ODRC”).
1.3

Doc. No.

On April 19, 2011, prior to any response to the original

Complaint, plaintiff filed the Amended Complaint which alleges that
defendants knowingly deprived him of medicine and food in violation of
his rights under the Eighth Amendment.
monetary relief.

Plaintiff seeks injunctive and

Amended Complaint, p. 6.

Plaintiff’s Motion alleges:

3

Plaintiff originally filed this action in the Western Division of this
district. Id. The case was transferred to this Court on February 14, 2011.
Order of Transfer, Doc. No. 2.

3

Violations of witholding [sic] medicine for punitive cause
continues at the whim of whoever wants to do while
Administrative Staff who do not order the persons to withold
[sic] the medicine conviently [sic] looks the other way and
allows this unlawful behavior of officer and medical staff
thereby condoning the fact.
Id. at 1.

Plaintiff further alleges that he “is not a cripple because

of his medical condition the plaintiff is a cripple because the
Department of Corrections has ‘made’ him a cripple and continues to
use his medical condition as a means to punish him.”

Id.

Plaintiff

seeks an order compelling defendant PCI Warden Cook “to institute
command of officers and medical staff of Pickaway Correctional
Institution and forbid officers and medical staff from interfearing
[sic] with the dispensing of medical care lawfully prescribed by a
medical doctor[.]”

Id. at 1-2.

Defendants oppose Plaintiff’s Motion.

Defendants’ Response in Opposition to Plaintiff’s Motion for a
Temporary Restraining Order (“TRO”), Doc. No. 35 (“Memo. in Opp.”).
With the filing of plaintiff’s reply memorandum, Reply Memorandum in
Support of Request for TRO, Doc. No. 39 (“Reply”), this matter is now
ripe for resolution.4

II.

STANDARD
Rule 65 of the Federal Rules of Civil Procedure permits a party

to seek injunctive relief if he believes that he will suffer
irreparable harm or injury without such relief.
and (b).

Fed. R. Civ. P. 65(a)

A temporary restraining order relates only to restraints

4

Because this motion can be resolved on the parties’ filings, there is
no need for an evidentiary hearing. See Potter v. Havlicek, No. 3:06-cv-211,
2007 U.S. Dist. LEXIS 10677, at *10 (S.D. Ohio Feb. 14, 2007) (“A hearing is
not always necessary on a motion for a preliminary injunction.”) (citing,
inter alia, 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 2949).

4

sought without written or oral notice to the adverse party or his
attorney, whereas the application is properly treated as one for a
preliminary injunction where the adverse party has been given notice.
Id.; Rios v. Blackwell, 345 F. Supp.2d 833, 835 (N.D. Ohio 2004) (“As
long as there is notice to the other side and an opportunity to be
heard, the standard for a preliminary injunction is the same as that
for a temporary restraining order.”).
“The purpose of a preliminary injunction is always to prevent
irreparable injury so as to preserve the court’s ability to render a
meaningful decision on the merits.”

United Food & Commer. Workers

Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341,
348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921,
925 (6th Cir. 1978) (internal quotation marks omitted)).

The decision

whether or not to grant a request for interim injunctive relief falls
within the sound discretion of the district court.

Friendship

Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.
1982).

An injunction, however, is an extraordinary remedy that should

be granted only after the Court has considered the following four
factors:
(1) whether the movant has a “strong” likelihood of success
on the merits; (2) whether the movant would otherwise suffer
irreparable injury; (3) whether issuance of a preliminary
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of a
preliminary injunction.
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing
McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th
Cir. 1997) (en banc)) (quoting Sandison v. Michigan High Sch. Athletic
Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995)).

5

These four considerations

need not all be met but are rather factors to be balanced.

In re

DeLorean Motor Co., 755 F.2d at 1229; Michigan Bell Tel. Co. v.
Engler, 257 F.3d 587, 592 (6th Cir. 2001).

“Moreover, a district

court is not required to make specific findings concerning each of the
four factors used in determining a motion for preliminary injunction
if fewer factors are dispositive of the issue.”
Monroe, 341 F.3d 474, 476 (6th Cir. 2003).

Jones v. City of

Finally, the movant bears

the burden of establishing that “the circumstances clearly demand”
this extraordinary remedy.

Overstreet v. Lexington-Fayette Urban

County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).
III. DISCUSSION
Plaintiff has named as defendants only PCI Warden Cook and ODRC
Director Moore, but he has not indicated whether he is suing them in
their official or individual capacities.
Complaint.

See generally Amended

However, construing plaintiff’s Amended Complaint

liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the
Court will presume that plaintiff is suing defendants in both their
individual and official capacities.
Plaintiff has not demonstrated a likelihood of success on the
merits as to the claims against defendants in their individual
capacities.

“Because § 1983 liability cannot be imposed under a

theory of respondeat superior, proof of personal involvement is
required for a supervisor to incur personal liability.”

Grinter v.

Knight, 532 F.3d 567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun
County, 408 F.3d 803, 817 n.3 (6th Cir. 2005) (internal quotation
marks omitted)).

“At a minimum, a § 1983 plaintiff must show that a

supervisory official at least implicitly authorized, approved or
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knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.”

Id. (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th

Cir. 1984) (internal quotation marks omitted)).

Thus, liability on

the part of a supervisor must be based on “active unconstitutional
behavior.”

Combs v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002)

(citing Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).

Here,

plaintiff does not allege that defendants PCI Warden Cook and ODRC
Director Moore personally withheld medication and/or food from
plaintiff.

Instead, plaintiff complains that it was unidentified

“employees of PCI,” “Officer Jacko,” “Officer Bryum,” “Nurse Cindy,”
“[t]he Governor of the State of Ohio,” unidentified “officers and
medical personell [sic]” and an unidentified nurse who withheld
medication and/or food in the past.

See Plaintiff’s Motion; Reply,

pp. 1-2, 4; Amended Complaint, ¶ D.

These allegations, devoid of any

factual support or even a suggestion that the named defendants
personally withheld medicine or food – or authorized the withholding
of medicine or food from plaintiff – are insufficient to establish the
necessary active unconstitutional behavior.

See Combs, 315 F.3d at

554.
As to the official capacity claims against the named defendants,
such claims are the equivalent of claims brought against a
governmental entity itself.

Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989) (“But a suit against a state official in his or her
official capacity is not a suit against the official but rather is a
suit against the official's office.”); Kentucky v. Graham, 473 U.S.
159, 165-66 (1985).

Under Monell v. Department of Social Services,

436 U.S. 658 (1978), a governmental entity cannot be held liable under

7

§ 1983 on a theory of respondeat superior simply because its employees
may have engaged in unconstitutional conduct.

Id. at 691.

Rather, a

plaintiff seeking to prevail in a § 1983 suit against a governmental
entity must first prove, of course, that a constitutional violation
actually occurred, and then prove that it was a policy or custom of
the governmental entity that was the “moving force” behind the
constitutional violation.

Id. at 694.

Such a policy or custom may

consist of: “(1) the [governmental entity’s] legislative enactments or
official agency policies; (2) actions taken by officials with final
decision-making authority; (3) a policy of inadequate training or
supervision; or (4) a custom of tolerance of or acquiescence in
federal rights violations.”
426, 429 (6th Cir. 2005).

Thomas v. City of Chattanooga, 398 F.3d
The allegations in the verified Amended

Complaint relate only to a handful of instances involving only
plaintiff.

Under these circumstances, plaintiff has not identified or

alleged any unconstitutional policy or custom on the part of either
the ODRC or the State of Ohio.

Based on the present record, plaintiff

has not shown a likelihood of success on the merits as to his official
capacity claims.

Id.

Similarly, plaintiff has not demonstrated irreparable harm.

To

establish irreparable harm, plaintiff must show that unless his motion
is granted, he “will suffer ‘actual and imminent’ harm rather than
harm that is speculative or unsubstantiated.”
443 F.3d 540, 552 (6th Cir. 2006).

Abney v. Amgen, Inc.,

Here, as defendants point out,

Plaintiff’s Motion contains no factual averments and does not even
reference the factors that must be considered by the Court in issuing

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extraordinary injunctive relief, including irreparable injury.5

The

Reply6 simply alleges that “Officer Jacko and Nurse Cindy have upon
several incidents since the filing of Case No. 2:11cv132 stopped the
8-1 pill line which denied medication for serious medical need to
plaintiff, they are not the only ones to have done this.”
1.

Reply, p.

Plaintiff further contends that “Officer Bryum (Frazier Hosp) has

caused plaintiff to miss meals to obtain medication since the filing
[of this litigation].”

Id.

Likewise, the Amended Complaint simply

refers to alleged misconduct by an unidentified nurse and a “Sgt.
Justice.”

Amended Complaint, ¶ D.

Taken together, plaintiff simply

complains of occasional, past incidents in which persons who are not
parties to the action allegedly failed to provide medication or food
to plaintiff.

Plaintiff makes no specific allegation, nor does he

provide evidence, that defendants themselves will engage in
unconstitutional behavior in the future.

Plaintiff has therefore

failed to establish harm that is “actual and imminent.”

Stated

differently, any suggestion that defendants PCI Warden Cook and ODRC
Director Moore might either personally withhold prescribed medication
or food, or authorize such misconduct, in the future is simply
speculative.7

As discussed supra, such speculation is insufficient to

5

To the extent that plaintiff argues, without factual support, that ODRC
“‘made’ him a cripple,” Plaintiff’s Motion, p. 1, this allegation is
undermined by the verified Amended Complaint, which avers that plaintiff has
been wheelchair bound for several years as a result of his degenerative bone
disease and heart attack in 2010. Amended Complaint, ¶¶ B, C, D.
6

Plaintiff provides no evidentiary support for his allegations in the
Reply, but the Court will nevertheless assume, for purposes of this
discussion, that they are true.
7

To the extent that plaintiff may suggest that the medication Ultram
will be withheld from him in the future, the Court is not persuaded that such
withholding warrants injunctive relief. First, not only is there no evidence
that the named defendants would either actually or by authorization withhold

9

warrant extraordinary injunctive relief.

See Abney, 443 F.3d at 552.

In light of the Court’s decision as to these factors, the Court
need not consider whether the remaining factors support a request for
injunctive relief.

See Jones, 341 F.3d at 476.

Based on the present

record, plaintiff has not met the high standard necessary for
extraordinary injunctive relief.

It is therefore RECOMMENDED that

plaintiff’s Request for Temporary Restraining Order, Doc. No. 33, be
DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

28

Response to objections must be

filed within fourteen (14) days after being served with a copy
thereof.

F.R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation
of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United
States v. Walters,

638 F.2d 947 (6th Cir. 1981).

such medication, plaintiff concedes that, since his RIB hearing, he no longer
has a prescription for that medication. See Amended Complaint, ¶ D. Second,
although plaintiff may now disagree with the decision to terminate his
prescription for Ultram, plaintiff does not explain how that disagreement with
a decision in January 2011, eight months ago, now amounts to irreparable harm
in the future.

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September 20, 2011

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

11