Anderson v. Commissioner Tennessee Department of Corrections et al

Filing 34

REPORT AND RECOMMENDATION: The Magistrate Judge recommends pltf's 13 MOTION for Preliminary Injunction be DENIED. Signed by Magistrate Judge Joe Brown on 11/30/11. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MR. TREVOR MANNY ANDERSON,
Plaintiff
v.
COMMISSIONER, OF TDOC WARDEN,
et al.,
Defendants
TO:

)
)
)
)
)
)
)
)
)
)

No. 3:11-0806
Judge Sharp/Brown

THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Presently

pending

is

the

Plaintiff’s

preliminary injunction (Docket Entry 13).

motion

for

The Defendants’ have

filed responses in opposition to the motion (Docket Entries 29,
30).

For

the

reasons

stated

below

the

Magistrate

Judge

recommends that the preliminary injunction be DENIED.
The Plaintiff in this matter sues various individuals
connected with the Tennessee Department of Corrections (TDOC)
and

Correctional

employees.

Medical

Services

(CMS)

and

several

of

its

The verified complaint alleges that the Plaintiff

developed abdominal pain in May 2010 and that he did not receive
appropriate medical treatment for his pain.
Plaintiff states that he was seen by Defendant Dr.
Sator, who prescribed a scrotal support and Motrin for the pain.

1

He stated that he filed grievances about the matter on September
1, 2010, again complaining that he was in extreme pain and not
receiving medical care adequate to relieve the pain.

He states

that he was advised by Dr. Sator on September 21, 2010, that he
had a fluid buildup in groin, which was the cause of the pain.
He alleges that Dr. Sator stated that he was unable to relieve
the buildup or cure the problem stopping short of making a full
diagnosis

of

the

Plaintiff’s

medical

condition

scheduled the Plaintiff for an ultrasound.

and

that

he

He states that his

grievances were not granted inasmuch as the Grievance Committee
found in favor of the supervisor’s response and Defendant Warden
Bell concurred in the committee’s response.
Plaintiff further alleges that he appealed to the TDOC
Commissioner and was again denied.

He alleges that in November

2010 he was rushed to the Freewill Hospital Emergency room where
it was found that a hole had developed in his stomach.

Because

of this emergency, surgery was performed and the Plaintiff was
hospitalized for approximately three weeks.
unknown

doctors

while

hospitalized

that

the

He was told by
delay

in

his

treatment caused him to be critically injured.
The verified complaint was signed on May 20, 2011,
although it appears that it was not filed with the Court until
some three months later on August 22, 2011.
2

Attached to the

complaint is a memorandum of law and attached to the memorandum
of law were some of the treatment records.

The record (Docket

Entry 2, p. 22 dated 10-1-10) states that the Plaintiff was
evaluated by Dr. Sator on September 28, 2010, for testicular
pain.
The assessment was normal with both testicles and
groin areas showing no masses.
You had no pain or
tenderness during the physical exam.
Due to your
complaints of discomfort when standing up the doctor
ordered for you to obtain a scrotal support and in
addition to that you were ordered Motrin. Your prior
ultrasound came back normal.
After reviewing your
health record I see you are being treated accordingly.
Your request to drain the fluid is not medically
necessary, not for such very little fluid.
If your
signs and symptoms persist and/or worsen please sign
up for sick call.
This

document

was

signed

by

Desiree

Andrews,

Additionally, there are three affidavits filed.
fellow

inmate

dated

December

21,

2010,

that

HSA.

One from a

states

he

has

personally seen the Plaintiff in pain and that he believes the
Plaintiff

has

grievances

and

not

been

attempts

appropriately
to

sign

up

treated

for

sick

and
call

that
have

his
been

ignored (Docket Entry 3).
Docket Entry 4 is an affidavit from Trinise Anderson.
He states that at the end of May 2010 she received a telephone
call from the Plaintiff complaining of excruciating pain around
his groin area.

She states that over the following two months

3

she called River Bend Prison and requested that someone check on
Plaintiff

because

of

his

complaints.

She

states

that

she

continued to receive complaints from Plaintiff about his pain
and she continued to notify River Bend Prison for several weeks
about

it.

She

states

that

for

approximately

two

months

different family members and friends also called the prison, but
that they received no word back from River Bend Prison until
they later learned through a family friend that the Plaintiff
had become very ill and had been rushed to General Hospital,
where he underwent surgery.
Docket Entry 5 is an affidavit from Frances Toran dated
June 11, 2011, in which he states that in May 20, 2010, the
Plaintiff informed him that he was not feeling well and that his
stomach was hurting.
the

prison

of

Mr. Toran informed the medical staff at

Plaintiff’s

condition.

During

his

next

conversation with the Plaintiff he was advised by the Plaintiff
that the Plaintiff’s scrotum had swollen and he could hardly
walk.

Mr. Toran said he made several calls to the jail, but

that the Plaintiff was not seen by anyone and that he actually
went to the jail and talked to someone at the front desk about
him being sick and was told there was no record of Plaintiff
making a sick call.

He states that he went downtown and talked

to a Dr. Donna White and was subsequently contacted by a nurse
4

who told him that the Plaintiff needed to go through proper
procedures of filing a sick call and to not call his family and
tell them to call the prison.

He states that he advised the

nurse that the Plaintiff had made several sick call requests,
and that the medication that he was given did not help.

Mr.

Toran states that he remained in contact with the Plaintiff from
May to November, and the Plaintiff continued to tell him how
sick he was.

He states that he was told that in November the

Plaintiff became ill and had to be admitted to the hospital
where he apparently stayed for three weeks.
The

complaint

itself

does

not

appear

to

facts past Plaintiff’s surgery in November 2010.

allege

any

Subsequently,

the Plaintiff filed a motion for preliminary injunction (Docket
Entry 13).

In the motion for preliminary injunction and its

supporting memorandum (Docket Entry 14) the Plaintiff seeks an
injunction to require the Defendants to provide the Plaintiff
with medical care in response to a large hernia that developed
in the Plaintiff’s abdomen after the November surgery.
Apparently, following the surgery in November 2010, the
Plaintiff
Defendants

did

develop

have

not

a

hernia,

properly

which

treated.

he
He

contends
now

that

requests

the
an

injunction requiring them to perform an ultrasound x-ray and a

5

proper diagnosis to have the hernia removed before it becomes
too big to remove or treat.
He

attaches

to

the

motion

(Docket

Entry

13-1)

a

response to inmate information request dated June 8, 2011, from
Dr. Sator in which that Dr. Sator states that his request for
repair of his incisional (abdominal) hernia was refused for the
following reasons:

(1) that the Plaintiff almost died following

surgery for the perforated bleeding ulcer in November 2010; (2)
that he was not able to breathe by himself for several days and
had to have medical assistance with his breathing; (3) that he
developed a bad case of MRSA pneumonia; and (4) that he gained
so

much

weight

that

even

if

the

hernia

is

repaired,

the

likelihood of successful closure is in doubt and that he could
develop a larger hernia in the area.

The doctor further advised

that he would be visiting his unit the next month and would be
willing to discuss the matter further.
In

his

memorandum

in

support

of

his

motion

for

preliminary injunction (Docket Entry 14) the Plaintiff does set
out

his

view

of

the

standard

for

granting

a

preliminary

injunction. Without citation to authority he states that “The
threshold for showing a reasonable likelihood of success is low,
Plaintiff need only demonstrate ‘a better than negligible chance
of succeeding’.”
6

The Plaintiff does not provide any medical information
past Dr. Sator’s memo of June 8, 2011.
The Magistrate Judge directed the Defendants to respond
to this motion for preliminary injunction (Docket Entry 15) and
they have done so (Docket Entries 29, 30).
The Magistrate Judge would note that he believes they
correctly set out the test for issuing a preliminary injunction,
the first part of which is that the Plaintiff must show a strong
or substantial likelihood of success on the merits (Docket Entry
29, pp. 2,3, ft. 8).
affidavit

of

Dr.

Defendants attached to their response the

Sator

(Docket

Entry

29-1,

11-21-11).

Dr.

Sator’s affidavit reflects that he has personal knowledge of the
facts in the affidavit and is competent to testify about the
facts and opinions expressed therein.

He states that he is a

qualified medical doctor and has completed surgical residencies,
among other qualifications and has been a licensed Tennessee
practitioner since 1973.

He states that he is familiar with the

standard of care in the Nashville area and has been providing
medical

treatment

to

Plaintiff

during

his

imprisonment.

He

states that Plaintiff underwent surgery approximately a year ago
and almost died from post-surgical complications.
Dr.

Sator

confirms

that

following

the

surgery

the

Plaintiff was unable to breathe and had to rely on a ventilator
7

and also developed MRSA pneumonia.

He states that the Plaintiff

is obese and his obesity and post-operative complications caused
him to develop a hernia at the site of the incision from the
surgery because of the Plaintiff’s size.
he

is

doubtful

that

a

surgeon

could

Dr. Sator states that
successfully

close

the

incision and because of his size there is a significant chance
he would develop another large hernia.
medical

opinion,

the

Plaintiff’s

He states that in his

obesity

and

post-surgical

complications do not make him a good candidate for new surgery.
He states that he has prescribed a binder for him to wear and
advised him to lose weight.

It is his medical opinion that with

the proper use of a binder that the hernia can be managed, and
until he loses weight the risk of new surgery is simply too
great.

In his medical opinion there is a real possibility that

if the Plaintiff undergoes the surgery that he requests, he will
not survive the procedure.
LEGAL DISCUSSION
The Magistrate Judge agrees that the correct standard
to determine whether a preliminary injunction should be granted
is

set

out

correctly

by

states

the

Defendants.

that

the

Docket

factors

to

Entry
be

30,

page

considered

2,

when

determining whether to grant or deny preliminary injunction are
as follows:

(1) whether the Plaintiff has shown a strong or
8

substantial likelihood or probability of success on the merits;
(2) whether Plaintiff has shown irreparable injury; (3) whether
the issuance of a preliminary injunction would cause substantial
harm to others; (4) whether the public interest would be served
by

preliminary

Agriculture,

injunction.

879

F.2d

1362,

Parker
1367

v.

(6th

U.S.
Cir.

Department
1989);

of

Frisch’s

Restaurant, Inc. v. Shoney’s, Inc. 759 F.2d 1261, 1263 (6th Cir.
1985).
The

Magistrate

Judge

does

not

believe

that

the

Plaintiff has shown a substantial likelihood of success on the
merits.

His case may well be subject to dismissal for failing

to

personal

show

activities

of

a

involvement
number

of

in
the

the

alleged

Defendants.

unconstitutional
Even

negligent

treatment claims do not as a rule make out a constitutional
violation absent some verifying medical evidence about the harm
of the delay.
Cir. 2001).

Napier v. Madison County, 238 F.3d 739, 742 (6th
In the Magistrate Judge’s view the more critical

issue is whether there is a strong likelihood that the Plaintiff
can show that he is being denied adequate medical treatment now.
In a review of the verified complaint, affidavits, and
documents the Magistrate Judge does not believe the Plaintiff
has met this standard, and that he has not met the standard of
showing

irreparable

harm.

The
9

Defendants

have

provided

a

current

affidavit

as

to

why

surgery

is

not

recommended

or

advisable at the present time and what treatment the Plaintiff
is receiving.
While the Plaintiff expresses a personal opinion that
he needs additional treatment, there is simply nothing else to
show that Dr. Sator’s diagnoses and recommendations are clearly
erroneous.

In fact, in Dr. Sator’s medical opinion, surgery at

this point could endanger the Plaintiff’s life and that the
Plaintiff is not a surgical candidate for repair of the hernia
until he loses weight.
After carefully reviewing the pleadings in this matter,
the Magistrate Judge believes that on the two most critical
elements,

likelihood

of

success

and

irreparable

Plaintiff has simply failed to make his case.

harm,

the

He has not made a

strong showing that he will be able to succeed on the merits and
he has failed to show that the failure to issue an injunction
will

cause

him

irreparable

harm.

It

appears

that

he

is

receiving treatment from the institution and there is no showing
that the treatment is insufficient, other than the Plaintiff’s
unsupported opinion.
The
limited

Magistrate

Judge’s

to

the

of

issue

a

Report

and

preliminary

Recommendation
injunction.

is
The

Magistrate Judge expresses no opinion as to the final outcome of
10

the

litigation

on

its

merits

pending

further

discovery

and

proceedings.
RECOMMENDATIONS
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends the motion for a preliminary injunction (Docket Entry
13) be DENIED.
Under

Rule

72(b)

of

the

Federal

Rules

of

Civil

Procedure, any party has 14 days from receipt of this Report and
Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections
filed in this Report in which to file any responses to said
objections.

Failure to file specific objections within 14 days

of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation.

Thomas v. Arn,

474

(1985),

U.S.

140

106

S.

Ct.

466,

88

L.Ed.2d

435

Reh’g

denied, 474 U.S. 1111 (1986).
ENTERED this 30th day of November, 2011.
/s/ Joe B. Brown__________________
JOE B. BROWN
United States Magistrate Judge

11