Callahan v. Wall et al

Filing 95

MEMORANDUM AND ORDER denying 78 Motion for Preliminary Injunction; denying 78 Motion for TRO; adopting 86 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 4/12/2017. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
ASHBEL T. WALL, II, et al.,
)
)
Defendants.
)
______________________________)
RYAN CALLAHAN,

C.A. No. 16-160 S

MEMORANDUM AND ORDER
William E. Smith, Chief Judge.
Before the Court is Magistrate Judge Patricia A. Sullivan’s
Report and Recommendation (“R&R”), filed on February 28, 2017,
recommending that Plaintiff Ryan Callahan’s renewed Motion for
Preliminary
(“Motion”)

Injunction
be

denied.

and
(ECF

No.

Temporary
86.)

Restraining

Plaintiff

is

Order
actively

prosecuting his Complaint, filed pursuant to 42 U.S.C. § 1983,
which alleges that Defendants’ deliberate indifference to his
medical need for surgery to correct three hammer toes on his
left foot constitutes cruel and unusual punishment under the
Eighth Amendment. (Compl. ¶¶ 1, 42, 48, ECF No. 1.)
initial

Motion

for

Preliminary

Injunction

and

Plaintiff’s
Temporary

Restraining Order was denied on November 22, 2016. (Mem. and
Order, ECF No. 50.)

Since then, Defendants arranged for another podiatrist to
examine Plaintiff.
Plaintiff,

took

On January 30, 2017, Dr. Dehaven examined

x-rays,

and

wrote

a

detailed

report

of

his

diagnoses and recommendations. (Def.’s Obj. to Mot. Ex. A, ECF
No. 79-1.)

Dr. Dehaven stated that “[a]t this time no surgical

management on the left foot varus is recommended however I do
believe a custom accommodative orthotic to help manage the varus
position as well as offload the lateral aspect of the left foot
would be helpful for him to ambulate with less pain.”
2.)

(Id. at

With respect to Plaintiff’s hammer toes, Dr. Dehaven stated

that:
“Patient could undergo revision of great toe as well
as second and third toe on the left foot however at
this time that is not recommended. I would recommend
at this time custom accommodative orthotics to help
offload the forefoot and accommodate his forefoot
varus position. This can be performed by any visiting
podiatric physician at the correctional facility.
This may also help prevent the need for further
surgical management of the toes.
I did discuss the
risk
of
potentially
undergoing
further
surgical
management of the hammertoes and due to the nonunion
and his [illegible] he does have considerable risk of
recurrence and failure of procedure.
He also has
considerable risk of significant shortening of the
great toe because of the need to remove further bone.
. . . I also discussed surgery of his hammertoes would
not fix his varus foot type and will not improve the
numbness that he has in his forefoot. However again I
reiterate that at this time surgical management is not
recommended treatment course, custom accommodative
orthotic would be most recommended.”
(Id. at 3.)

2

Plaintiff’s renewed Motion seeks an order from the Court
for immediate surgery. (Def.’s Mot. 6, ECF No. 78.)

Magistrate

Judge Sullivan held a hearing on February 17, 2017, at which
Plaintiff appeared telephonically.

The R&R recommends denying

the renewed Motion because “Plaintiff is unlikely to succeed on
the merits of [his] claim that [Defendants] exhibited deliberate
indifference to his medical condition by refusing to allow foot
surgery.” (R&R 6.)

The R&R also notes that, as of the end of

February, Dr. Dehaven’s recommendation for an orthotic had not
yet been implemented, but that Plaintiff would be seen by a
podiatrist the next time that a podiatrist visited the ACI. (Id.
at 4 n.4.)
Plaintiff filed an objection to the R&R on March 27, 2017.
(ECF No. 89.)

The objection was not timely filed because March

27 is thirteen days past the end of the fourteen-day period in
which a litigant may file an objection to an R&R. See Fed. R.
Civ. P. 72(b)(2).
day

period.

See

This Court strictly adheres to this fourteenLR

Cv

72(c)(1)

(“Failure

to

file

specific

objections . . . constitute[s] waiver of the right to review by
the

district

decision.”).

judge

and

the

right

to

appeal

the

Court’s

However, the Court briefly notes that Plaintiff’s

objection focuses on a second report from Dr. Fish—whose initial
report was considered by the Court for Plaintiff’s first Motion
for Preliminary Injunction—that issued three days prior to the
3

hearing on Plaintiff’s renewed Motion. (Obj. to R&R, ECF No.
89.)

Dr. Fish’s February 14 report states that “[p]atient is in

need of surgical correction in the future. . . . Also correction
of

the

nonunions

of

patients [sic] pain.

the

hammertoes

may

not

take

away

all

Patient is getting out in two months and

is considering doing further surgery at that time.” (Obj. to R&R
Ex. A.)

Plaintiff argues that this most recent report “directly

contradicts Dr. Dehaven’s report” and should control the Court’s
analysis. (Id. at 5.)
As

Magistrate

Judge

Sullivan

explained

in

the

R&R,

the

First Circuit has instructed “that the Eighth Amendment is not
violated

when

prison

officials

cho[o]se

‘one

of

two

alternatives—both of which are reasonably commensurate with the
medical standards of prudent professionals, and both of which
provide [plaintiff] with a significant measure of relief.’” (R&R
5

(quoting

2014)).)

Kosilek

v.

Spencer,

774

F.3d

63,

90

(1st

Cir.

Here, Drs. Fish and Dehaven are in agreement that

immediate surgery is not required; Dr. Fish recommended surgery
“in the future” with reservation about whether the surgery will
serve

to

alleviate

the

pain

that

Plaintiff

is

experiencing,

whereas Dr. Dehaven recommended against immediate surgery and
for immediate treatment by an orthotic to relieve Plaintiff’s

4

pain. 1 (See Obj. to R&R Ex. A; Def.’s Obj. to Mot. Ex. A.)
Dehaven

also

surgery,

and

cautioned
opined

Plaintiff

that

it

may

heavily
not

fix

about
the

the

Dr.

risks

problems

of

that

Plaintiff has with his left foot.
After carefully reviewing Plaintiff’s Motion and the R&R,
this Court ACCEPTS the R&R (ECF No. 86) and adopts the reasoning
set

forth

therein

in

its

entirety.

Plaintiff’s

Motion

for

Preliminary Injunction and Temporary Restraining Order (ECF No.
78) is therefore DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: April 12, 2017

1

The Court notes that it shares the Magistrate Judge’s
unease that Dr. Dehaven’s recommendation for an orthotic was not
immediately implemented, and expects that Defendants have
arranged for a podiatrist to visit the ACI by the date of this
Order. The Court also notes, however, that this comment is not
to be construed as an opinion about the medically appropriate—or
constitutionally required—period of time between the Defendants’
receipt of Dr. Dehaven’s recommendation and their implementation
of such.
5