HEARY v. FOLINO et al

Filing 37

MEMORANDUM ORDER denying 31 Motion for TRO; denying 31 Motion for Preliminary Injunction for the reasons set forth more fully in the Memorandum Order itself. Signed by Magistrate Judge Maureen P. Kelly on 9/19/2016. [A copy of this Memorandum Order was mailed to Plaintiff on this day at his address of record]. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD HEARY,
Plaintiff,
v.
LOUIS S. FOLINO, CORRECT CARE
SOLUTIONS, NEDRA GREGO, MS.
VIHLIDAL, and DOCTOR JIN,
Defendants.

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Civil Action No. 16-131
Chief Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
Plaintiff Richard Heary (“Plaintiff”) is an inmate in the custody of the Pennsylvania
Department of Corrections (“DOC”), and is currently incarcerated at the State Correctional
Institution ("SCI") at Green. Plaintiff brings this civil rights action against Defendants alleging
that Defendants have been deliberately indifferent to his medical needs in violation of his rights
provided by the Eighth Amendment to the United States Constitution.
Presently before the Court is Plaintiff’s Motion for a Temporary Restraining Order and a
Preliminary Injunction, ECF No. 31, wherein Plaintiff contends that Defendants have failed to
provide him with physical therapy or adequate pain medication following an in-house surgery
that was performed on Plaintiff’s hand sometime in August or September of 2013. Plaintiff
seeks an order from this Court requiring Defendants to provide to him “the necessary physical
therapy” and “arrange for an examination and a plan of treatment by a qualified specialist.” ECF
No. 32-1 ¶¶ 12-13.
In determining whether to grant a preliminary injunction, a court must consider whether
the party seeking the injunction has satisfied four factors: “1) a likelihood of success on the

merits; 2) he or she will suffer irreparable harm if the injunction is denied; 3) granting relief will
not result in even greater harm to the nonmoving party; and 4) the public interest favors such
relief.” Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010), quoting
Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010). Plaintiff bears the burden of showing
irreparable harm which is more than merely serious or substantial harm. Hohe v. Casey, 868
F.2d 69, 72 (3d Cir. 1989); ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987).
Irreparable harm is established by showing that the movant will suffer harm that “cannot be
redressed by a legal or an equitable remedy following trial.” Instant Air Freight Co. v. C.F. Air
Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (“[t]he preliminary injunction must be the only
way of protecting the plaintiff from harm”).
Indeed, preliminary or temporary injunctive relief is “a drastic and extraordinary remedy
that is not to be routinely granted.” Intel Corp. v. ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568
(3d Cir. 1993). This is particularly true in the correctional context. Goff v. Harper, 60 F.3d 518,
520 (3d Cir. 1995) (a request for any form of mandatory prospective relief “must always be
viewed with great caution because judicial restraint is specially called for in dealing with the
complex and intractable problems of prison administration”). See 18 U.S.C. § 3626(a)(1)(A)
(“[p]rospective relief in any civil action with respect to prison conditions shall extend no further
than necessary than to correct the violation of the federal right of a particular plaintiff or
plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that
such relief is narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation of the Federal
right. The court shall give substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the relief”). Moreover, where the requested

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preliminary injunction “is directed not merely at preserving the status quo but . . . at providing
mandatory relief, the burden on the moving party is particularly heavy.” Punnett v. Carter, 621
F.2d 578, 582 (3d Cir. 1980). See Trinity Industries, Inc. v. Chicago Bridge Iron Co., 735 F.3d
131, 139 (3d Cir. 2013).
Here, it does not appear that there is a reasonable probability that Plaintiff will succeed
on the merits of his underlying Eighth Amendment claim as it is fairly evident from the
Complaint that Plaintiff is receiving medical treatment for his hand. Not only did Dr. Jin
perform surgery but Plaintiff had follow-up consultations thereafter and was provided pain
medication. Not only are the DOC Defendants entitled to rely on the judgement and opinions of
Dr. Jin but it is well established that disagreements over medical judgment do not state an Eighth
Amendment claim. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). See Jetter v. Beard,
130 F. App’x 523, 526 (3d Cir. 2005) (noting that while plaintiff would have preferred a
different course of treatment, his preference does not establish an Eighth Amendment cause of
action); Pilkey v. Lappin, 2006 WL 1797756, at *2 (D.N.J. June 26, 2006) (“refusal to consider
inmate's self-diagnoses,” or “to perform tests or procedures that the inmate desires” does not
amount to cruel and unusual punishment).
Further, none of the Defendants are in a position to provide Plaintiff with the relief he
seeks. Neither Dr. Jin nor any of the DOC Defendants currently work at SCI Greene where
Plaintiff’s surgery was performed and where Plaintiff is still incarcerated. Moreover, Correct
Care Solutions merely employs the physicians that work at the various prisons in Pennsylvania
and cannot make medical determinations or order the treatment that Plaintiff seeks.
With respect to the second consideration, Plaintiff has failed to demonstrate how he
would be irreparably harmed if injunctive relief is not granted. As Defendants have argued,

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Plaintiff’s hand was operated on in August or September of 2013 -- three years ago. There is no
reason to believe, and Plaintiff has not provided one, that denying Plaintiff outside physical
therapy or examination by an outside specialist at this point in time will result in irreparable
harm.
Finally, while it does not appear that granting relief will result in greater harm to the nonmoving parties, it does not appear that the public interest will be served by granting Plaintiff the
relief he seeks. Although Plaintiff contends that the public’s interest will be served as it is
always in the public interest for prison officials to obey the law, the Court has already found that
there is little likelihood that Plaintiff can succeed on the merits of his Eighth Amendment claim.
Accordingly, the following Order is entered:
AND NOW, this 19th day of September, 2016, upon consideration of Plaintiff’s Motion
for Temporary Restraining Order and a Preliminary Injunction, and Defendants’ Responses
thereto, IT IS HEREBY ORDERED that Plaintiff’s Motion, ECF No. 31, is DENIED.
BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

cc:

Richard Heary
EE1131
SCI Greene
175 Progress Dr.
Waynesburg, PA 15370
All counsel of record via CM/ECF

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