Wood v. Sehorn et al

Filing 29

REPORT AND RECOMMENDATION: Accordingly, the Court respectfully RECOMMENDS that the plaintiff's motions for a preliminary injunction and temporary restraining order (Docket Entry Nos. 3 and 6) be DENIED. Signed by Magistrate Judge Juliet E. Griffin on 6/2/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES L. WOOD

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v.
DAVID SEHORN, et al.

TO:

NO. 3:14-0617

Todd J. Campbell, District Judge

REPORT AND RECOMMENDATION
By Order entered March 12, 2014 (Docket Entry No. 4), this action was referred to the
Magistrate Judge to enter a scheduling order for the management of the case, to dispose or
recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to
conduct further proceedings, if necessary, under Rule 72(b), Fed. R. Civ. P., and the Local Rules of
Court.
Presently pending are the plaintiff’s motions for a preliminary injunction and temporary
restraining order (Docket Entry Nos. 3 and 6). Set out below is the Court’s recommendation for
disposition of the motions.

I. BACKGROUND AND ANALYSIS
The plaintiff is an inmate of the Tennessee Department of Correction (“TDOC”) confined
at the Lois Deberry Special Needs Facility (“Deberry”) in Nashville, Tennessee. He filed this action
pro se and in forma pauperis on March 7, 2014, under 42 U.S.C. § 1983 against David Sehorn,
Dr. Madubueze Nwozo, and Centurion, Inc., asserting that his Eighth Amendment right to

constitutionally adequate medical care has been violated. The plaintiff contends that he is a cancer
survivor and that, in November 2013, his oncologist ordered that he have a CT scan three months
later to determine whether or not the cancer was in remission. At the time the instant lawsuit was
filed, the plaintiff alleged that the CT scan had not been scheduled and that the defendants had
refused to speak with him about the CT scan and medical symptoms about which he was
complaining. By the Order of referral, the Court directed that process issue to Defendants Sehorn
and Nwozo but dismissed Centurion, Inc., from the action.
By his motions, the plaintiff seeks an order requiring the defendants and TDOC employees
to provide him with a CT scan, to comply with all orders from his oncologist, and to treat him when
he signs up for sick call. Although the plaintiff filed two motions, the motions are identical in all
respects. Defendant Nwozo has responded to the motions by asserting that, as indicated by a
declaration filed by the plaintiff on March 27, 2014 (Docket Entry No. 8), a CT scan was performed
on March 7, 2014, and showed no indication that cancer was present in the plaintiff. See Docket
Entry No. 14. The plaintiff has filed a reply. See Docket Entry No. 20.
Preliminary injunctions are governed by Rule 65(a) of the Federal Rules of Civil Procedure
and are considered preventive, prohibitory, or protective measures taken pending resolution on the
merits. See Clemons v. Board of Educ., 228 F.2d 853, 856 (6th Cir. 1956). Preliminary injunctions
are considered extraordinary relief, the issuance of which requires great caution, deliberation and
sound discretion. Detroit Newspaper Publishers Ass’n v. Detroit Typographical Union No. 18, Int’l
Typographical Union, 471 F.2d 872, 876 (6th Cir. 1972).
In determining whether to grant the plaintiff’s requests for preliminary injunctive relief, this
Court must consider: (1) whether the plaintiff has shown a strong or substantial likelihood or
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probability of success on the merits of the case; (2) whether the plaintiff will suffer irreparable injury
if the injunction is not granted; (3) whether granting the injunction will cause potential harm to
others; and (4) the impact of the injunction upon the public interest. McNeilly v. Land, 684 F.3d
611, 615 (6th Cir. 2012); Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); Six Clinics Holding
Corp., II v. CAFCOMP Systems, 119 F.3d 393, 401 (6th Cir. 1997) Parker v. United States Dep’t
of Agric., 879 F.2d 1362, 1367 (6th Cir. 1989); Mason Cnty. Med. Assocs. v. Knebel, 563 F.2d 256,
261 (6th Cir. 1977). These factors “do not establish a rigid and comprehensive test for determining
the appropriateness of preliminary injunctive relief,” Frisch’s Rest. Inc. v. Shoney’s, Inc., 759 F.2d
1261, 1263 (6th Cir. 1984), nor is any one factor controlling. Gonzales v. National Bd. of Med.
Examiners, 225 F.3d 620, 625 (6th Cir. 2000).
A preliminary injunction is an extraordinary remedy, and the party seeking the injunction
bears the burden of justifying such relief. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423,
441, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). The proof required to obtain a preliminary injunction
is much more stringent than the proof required to survive a summary judgment motion. Leary, 228
F.3d at 739.
The Court finds that the plaintiff has not satisfied the standard required for a preliminary
injunction. To succeed on the merits of his case, the plaintiff will be required to show deliberate
indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976). This is a substantial showing and neither negligence nor a mere disagreement
over the wisdom or correctness of a medical judgment is sufficient to prove a deliberate indifference
claim. See Sanderfer v. Nichols, 62 F.3d 151, 154–55 (6th Cir. 1995). This action is still in the
initial stage of pre-trial activity without a developed record. At this stage of the proceedings, the
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plaintiff’s likelihood of success on his claims is no greater than that of the defendants. The plaintiff
has simply not demonstrated that he has a strong or substantial likelihood of success on the merits.
The second factor also does not favor the plaintiff because he has not shown that he will
suffer irreparable harm if the injunctive relief requested is not granted. The CT scan at issue has
been performed and showed that cancer has not reoccurred. The balancing of harms required by the
third factor does not weigh significantly in favor of the requested relief, and the plaintiff has not
persuasively demonstrated that a public interest would be advanced by the requested relief as is
required for the fourth factor. National Hockey League Players Ass’n v. Plymouth Whalers Hockey
Club, 372 F.3d 712, 720 n.4 (6th Cir. 2003). Although the Court is troubled by allegations of a lack
of timely diagnostic care to a cancer patient, absent extraordinary and urgently compelling reasons,
the Court will not intervene in matters such as the day-to-day medical care operations in a
correctional facility. Such reasons have not been shown by the plaintiff.
The moving party has the burden of proving that the circumstances “clearly demand” a TRO
or a preliminary injunction. Overstreet v. Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, 573
(6th Cir. 2002). The plaintiff has simply failed to meet his burden by the brief motion he has filed.

RECOMMENDATION
Accordingly, the Court respectfully RECOMMENDS that the plaintiff’s motions for a
preliminary injunction and temporary restraining order (Docket Entry Nos. 3 and 6) be DENIED.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
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Failure to file written objections within the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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