Goist v. United States of America

Filing 91

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying 28 Motion for TRO; denying 28 Motion for Preliminary Injunction; denying 29 Motion for Order to Show Cause. Signed by Honorable Richard M Gergel on 4/8/2015.(cwhi, )

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IN THE UNITED STATES DISTRICT COURT'!'-T re'"'::N. $[
FOR THE DISTRICT OF SOUTH CAROLIN.t]OI5
BEAUFORT DIVISION
APR - q A 8: 00

Paul B. Goist, #53614-060,
Plaintiff,
v.

Federal Bureau of Prisons, Charles
Samuels, Rear Admiral Newton R.
Kendig, Harrell Watts, South East
Regional Director,
John and Jane Does, Warden Cruz,
Victor Loranth, and William Rigney,
Defendants.

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No. 9: 14-cv-4036-RMG
ORDER

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This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge recommending Plaintiffs motions for a temporary restraining order (TRO) /
preliminary injunction and an order to show cause as to why an injunction should not be issued
be denied. (Dkt. No. 46). For the reasons stated below, the Court ADOPTS the R & R in full.
I. Background

Plaintiff Paul B. Goist ("Plaintiff), is a federal inmate, proceeding pro se and in forma
pauperis, asserting claims under the Federal Tort Claims Act (FTCA) (Dkt. No.1), as well as

constitutional claims of deliberate indifference to his medical needs pursuant to Bivens v. Six
Unknown Named Agents ofthe Federal Bureau ofNarcotics, 403 U.S. 388 (1971) (Dkt. No. 20).

Pursuant to 28 U.S.c. § 636(b) and Local Civil Rule 73.02(B)(2)(e) DSC, this case was referred
to a Magistrate Judge for pretrial proceedings.

Plaintiff subsequently filed a motion for a

temporary restraining order (TRO) / preliminary injunction against transfer from the Federal

Medical Center, Butner 1 and an order requiring the facility to provide "appropriate physical
therapy." (Dkt. No. 28). Plaintiff also filed a motion for an order to show cause as to why an
injunction should not be issued. (Dkt. No. 29). The Magistrate Judge issued the present R & R,
recommending the motions be denied (Dkt. No. 46) and the Plaintiff filed timely objections (Dkt.
No. 58).
II. Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-271 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1).

This Court is charged with making a de novo determination of those

portions of the R & R to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).
Where the Petitioner fails to file specific objections to the Report and Recommendation, this
Court "must 'only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.'" Id. (quoting Fed.R.Civ.P. 72 advisory committee note).
A party seeking a preliminary injunction must establish all four of the following
elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in
the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an
injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7 (2008); The Real Truth About Obama, Inc. v. Federal Election Comm 'n, 575F.3d 342, 346-347
(4th Cir. 2009), overruling Blackwelder Furniture Co. ofStatesville v. Seilig Mfg. Co., 550 F.2d
I At the time ofthe alleged injury, Plaintiff was housed at Fcr Williamsburg in Salters, South Carolina. He was
transferred to FMC Butner, North Carolina to undergo surgery and engage in post-operative physical therapy.

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189 (4th Cir. 1977). A petitioner must make a clear showing that he is likely to succeed on the
merits of his claim. Winter, 129 S.Ct. at 376; Real Truth, 575 F.3d at 345-346. Similarly, he
must make a clear showing that he is likely to be irreparably harmed absent injunctive relief.
Winter, 129 S.Ct at 374-76; Real Truth, 575 FJd at 347.
III. Discussion

After de novo review of the record, the R & R, and Plaintiff s objections, the Court finds
that the Magistrate Judge applied sound principles to the facts of this case and therefore agrees
with and wholly adopts the conclusions of the Magistrate Judge. Plaintiff filed objections to the
Magistrate's report; however, most of the objections simply repeat the same arguments made in
the motion for the temporary restraining order. (E.g. Dkt. No. 58 at 2, "The Plaintiff objects to
the assertion that the R&R states Plaintiffs general and conclusory lay assertions in his motion
that he is not receiving adequate medical care or treatment does not in and of itself establish the
likelihood that he will succeed on the merits of his claim . . . Goist assertions are based upon
clearly established law and precedent, periodicals and medical evidence ....")
The record in this case shows that Plaintiff has not demonstrated a clear likelihood of
success on the merits of his deliberate indifference claim. The Constitution does not guarantee a
prisoner "to the treatment of his or her choice." De'lonta V Johnson, 708 F.3d 520, 526 (4th
Cir. 2013). Additionally, "[m]ere disagreement as to the proper medical treatment" does not
constitute deliberate indifference.

Farmer v. Brennan, 511 U.S. 825 (1994).

The right to

medical treatment is limited to that treatment that is medically necessary and not to "that which
may be considered merely desirable." Bowring v. Goodwin, 551 F.2d 44, 48 (4th Cir. 1977).
Further, a disagreement as to the proper treatment to be received does not in and of itself state a

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constitutional violation. See Smart v. Villar, 547 F.2d 112 (lOth Cir. 1976); Lamb v. Maschner,
633 F.Supp. 351,353 (D. Kan. 1986).
Plaintiff also fails to demonstrate he will be irreparably harmed in the absence of relief.
Plaintiff points to a case with analogous facts but has submitted no proof of irreparable harm in
the form of medical records, medical opinion, evidence of medical history, or otherwise to
corroborate his claims of medical exigency. See McKeowen v. Pacheko, No.1: 1O-CV-1606­
RMG-SVH, 2011 WL 1321975, at *2 (D.S.C. Apr. 7,2011). Plaintiff cannot show a likelihood
of irreparable harm where he seeks an order requiring officials to provide physical therapy based
on what constitutes a disagreement over appropriate medical treatment. Without such evidence,
the court cannot conclude Plaintiff will be irreparably harmed if physical therapy is not resumed.
Furthermore, Plaintiff was transferred from Federal Medical Center Butner in January of 2015,
rendering an injunction against such transfer moot. The Court agrees that Plaintiff has failed to
satisfy the heavy burden required to obtain preliminary injunctive relief and as such, the Court
need not address Plaintiff s amended request for a remedial plan and the appointment of a
monitor.

IV. Conclusion

For the reasons set forth above, Plaintiffs motions are DENIED.

IT IS SO ORDERED.

APril-.K,2015
Charleston, South Carolina
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