Barber v. Sutmiller et al

Filing 50

ORDER ADOPTING 34 REPORT AND RECOMMENDATION; mailed to Bradley Price Barber #177189 CUSHING-CCF, Cimarron Correctional Facility, 3200 S Kings HWY Cushing, OK 74023-5337. Signed by Honorable Robin J. Cauthron on 9/17/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BRADLEY PRICE BARBER,
Plaintiff,
v.
DR. DONALD SUTMILLER, et al.,
Defendants.

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Case No. CIV-15-78-C

ORDER AFFIRMING REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, filed this action pursuant to 42 U.S.C.
§ 1983 alleging violations of his civil rights. Therein, Plaintiff complains that Defendants
failed to provide him with appropriate care during the term of his incarceration. After filing
his case, Plaintiff filed a number of motions seeking preliminary injunctive relief. Pursuant
to the provisions of 28 U.S.C. § 636(b)(1), this matter was referred to Magistrate Judge
Charles B. Goodwin. Judge Goodwin prepared a Report and Recommendation (“R&R”)
recommending denial of Plaintiff’s requested injunctive relief. Defendant objects to the
R&R. Consequently, the Court will conduct a de novo review of the matter.
Judge Goodwin’s R&R thoroughly explains the applicable law and the facts of
Plaintiff’s case to the extent he seeks injunctive relief. After de novo review, the Court
finds Plaintiff has raised no ground which would require a result contrary to that
determined by Judge Goodwin. As Judge Goodwin noted, none of the evidence provided
by Plaintiff demonstrates that he is likely to suffer irreparable harm in the absence of
preliminary relief. Nothing in Plaintiff’s objection requires a different result. The substance

of Plaintiff’s request for injunctive relief related to his medical care is that he be treated
with the “new cure.” However, he fails to offer any explanation of this “new cure” or why
it is better than the care he is receiving. In short, Plaintiff has failed to demonstrate that in
the absence of receiving the “new cure” he will suffer irreparable harm. Although not
entirely clear, Plaintiff’s Motions can also be read to suggest he is not receiving any
medical care for his condition. However, the documents provided by Plaintiff as evidence
supporting his objection to the R&R demonstrate that Defendants have authorized
treatment for Plaintiff consistent with the governing protocol. To the extent this treatment
is either not the treatment Plaintiff desires or is not progressing at the rate he desires,
neither reason is grounds for injunctive relief. See Perkins v. Kan. Dep’t of Corr., 165 F.3d
803, 811 (10th Cir. 1999) (“a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation”) (citing Estelle v.
Gamble, 429 U.S. 97, 107 (1976); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)).
As far as Plaintiff’s request for access to legal resources or transfer to another
institution, as Judge Goodwin noted, both of those claims are beyond the scope of
Plaintiff’s Amended Complaint and therefore would be inappropriate for a grant of
injunctive relief.
Accordingly, after de novo review, the Court adopts in full the Report and
Recommendation of Magistrate Judge Goodwin (Dkt. No. 34), denies Plaintiff’s request

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for injunctive relief, and returns this matter to the Magistrate Judge for further proceedings
consistent with the original Order of Referral.
IT IS SO ORDERED this 17th day of September, 2015.

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