Woodson v. Barlow et al

Filing 33

ORDER adopting Report and Recommendations re 29 Report and Recommendation.; denying 15 Motion for TRO; denying 15 Motion for Preliminary Injunction. Signed by Honorable Timothy D. DeGiusti on 5/29/2012. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

MARCUS D. WOODSON,
Plaintiff,
v.
WILLIAM BARLOW, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. CIV-11-1349-D

ORDER
This matter is before the Court for review of the Supplemental Report and Recommendation
issued by United States Magistrate Judge Gary M. Purcell on April 13, 2012 [Doc. No. 29]. Judge
Purcell recommends that Plaintiff’s Motion for Temporary Restraining Order and Preliminary
Injunction [Doc. No. 15] be denied. Plaintiff, who appears pro se, has filed a timely objection.
Thus, the Court must make a de novo determination of portions of the Report to which a specific
objection is made, and may accept, modify, or reject the recommended decision. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Upon consideration of Plaintiff’s pro se filing, which is liberally construed, the Court
discerns the sole objection is Plaintiff’s contention that he has met the standard for issuance of a
mandatory preliminary injunction that would require prison officials to provide appropriate medical
treatment for a back condition diagnosed by magnetic resonance imaging (MRI) in October, 2011.1
According to Plaintiff, the requested injunction would involve “taking the plaintiff to a suitable

1

Plaintiff also asserted in his Motion that he is in danger of serious injury by other inmates. Plaintiff
omits any reference to these allegations in his Objection. The Court only considers the specific objection
made by Plaintiff, and does not consider these other allegations. See United States v. 2121 East 30th Street,
73 F.3d 1057, 1060 (10th Cir. 1996) (only a specific objection preserves an issue for review).

doctor, and then carrying out the doctor[’]s orders.” See Pl.’s Objection [Doc. No. 30] at 4. Plaintiff
argues that the physician’s assistant at his place of confinement lacks “the training and knowledge
to deal with the Plaintiff’s medical condition and properly treat such.” See id. at 4-5. Plaintiff
believes he should be treated by “a back specialist.” See Pl.’s Declaration [Doc. No. 16], ¶ 7.
Upon de novo consideration of this issue, the Court finds that Judge Purcell’s analysis and
conclusions are correct. Plaintiff seeks a type of “historically disfavored” preliminary injunction,
for which a movant “must make a strong showing both with regard to the likelihood of success on
the merits and with regard to the balance of harms.” See O Centro Espirita Beneficente Uniao Do
Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004) (en banc), aff’d sub nom., 546 U.S. 418
(2006). “Before a court may grant [a mandatory preliminary injunction], the movant must ‘make
a heightened showing of [all] four factors.” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)
(quoting Attorney General v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)); see also RoDa
Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009). As the Court understands Plaintiff’s
arguments, the premise of his position regarding the merits of his § 1983 claim for medical care is
that denying him treatment by a back specialist constitutes a constitutional deprivation. Generally,
however, a prisoner’s “contention that he was denied treatment by a specialist is . . . insufficient to
establish a constitutional violation. The decision that a patient’s condition requires a specialist is
a decision about the patient’s course of treatment, and negligent diagnosis or treatment of a medical
condition does not constitute a medical wrong under the Eighth Amendment.” See Duffield v.
Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (internal quotations omitted).
Here, the Court finds Plaintiff’s allegations and evidence regarding the need for his medical
condition and treatment to be evaluated by a back specialist are insufficient to show a likelihood of
success on his Eighth Amendment claim for denial of medical care. Further, the Court concurs in
2

Judge Purcell’s conclusions that Plaintiff’s allegations are insufficient to establish irreparable harm
or the remaining factors necessary to warrant a mandatory preliminary injunction.
IT IS THEREFORE ORDERED that the Supplemental Report and Recommendation [Doc.
No. 29] is ADOPTED. Plaintiff’s Motion for Temporary Restraining Order and Preliminary
Injunction [Doc. No. 15] is DENIED.
IT IS SO ORDERED this 29th day of May, 2012.

3