Roberts v. Vermont Department of Corrections et al

Filing 60

OPINION AND ORDER Adopting 51 Magistrate Judge's Report and Recommendation denying 34 Motion for Preliminary Injunction. Signed by Chief Judge Christina Reiss on 1/26/2017. (pac)

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llSTftiCT fJF VE
FiLEID
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

2011 JAN 26 PH 3: 40

CLERK

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BRIAN LEON ROBERTS,
Plaintiff,
v.
VERMONTDEPARTMENTOF
CORRECTIONS, CENTURION OF
VERMONT, LLC, LINDA ROBERTS,
JEREMY CORNWALL, MINDY CONNOR,
MARK POTANAS, MICHELLE BEATTIE,
and DR. MITCHELL MILLER,
Defendants.

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Case No. 2:16-cv-135

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 34 & 51)
This matter came before the court for a review of the Magistrate Judge's October
14, 2016 Report and Recommendation ("R & R") (Doc. 51). (Doc. 34.) Plaintiff Brian
Leon Roberts, an inmate in the care and custody of the Vermont Department of
Corrections ("DOC"), seeks an Order compelling Defendants DOC, Centurion of
Vermont, LLC, Linda Roberts, Jeremy Cornwall, Mindy Connor, Mark Potanas, Michelle
Beattie, and Dr. Mitchell Miller (collectively, "Defendants") to transport him to
Dartmouth Hitchcock Medical Center ("DHMC") for an evaluation by an infectious
disease specialist of a recurring infection on his lower right leg. For additional relief,
Plaintiff seeks $25 million and immediate release from custody.
The Magistrate Judge recommended the court deny Plaintiffs motion. Neither
party has filed an objection to the R & R, and the time period to do so has expired.

A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b); 28 U.S.C. § 636(b)(l); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.
1999). The district judge may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C. § 636(b )(1 ); accord

Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
In his nine pageR & R, the Magistrate Judge carefully reviewed the factual
allegations, properly construed Plaintiffs filing as a motion for a preliminary injunction
pursuant to Fed. R. Civ. P. 65(a), and concluded that Plaintiff failed to establish
irreparable harm or a likelihood of success on the merits. The Magistrate Judge noted
that Plaintiff suffers from deep vein thrombosis ("DVT") and that his recurrent bouts of
cellulitis were caused by his failure follow Dr. Mitchell's advice to consistently wear
compression stockings, which were issued to him in May 20 15 together with repeated
education regarding their use. In September 2016, Plaintiff received medical treatment,
including hospitalization, for his DVT. There is no evidence that his DVT is presently
causing him harm. Because compression stockings would alleviate Plaintiffs harm, the
Magistrate Judge determined the harm is not irreparable. See JSG Trading Corp. v. Tray-

Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990) (requiring movant to established that it is
"likely to suffer irreparable harm if equitable relief is denied"). The Magistrate Judge
further opined that Plaintiff had not established a likelihood of success on the merits of
his underlying Complaint. Accordingly, the Magistrate Judge recommended denial of
Plaintiffs motion. Plaintiff has not identified any errors in the Magistrate Judge's
decision, and the court finds none. The court therefore adopts the R & R and its
recommendation in its entirety.

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CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R as the court's Order and Opinion, and DENIES Plaintiff's motion seeking
additional medical treatment. (Doc. 34.)
SO ORDERED.
Dated at Burlington, in the District of Vermont, this ..z6.J1ay of January, 2017.

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Christina Reiss, Chief Judge
United States District Court

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