Hancock v. Rickard et al

Filing 28

MEMORANDUM OPINION AND ORDER: In order to enable the court to evaluate Hancock's entitlement to injunctive relief, the court believes a response by defendants (who have access to plaintiff's medical records) is necessary. Once defendants ha ve filed a written response addressing the allegations listed above, the court will determine whether an evidentiary hearing is necessary. For this reason, plaintiff's objections are SUSTAINED insofar as the court will further evaluate his alleg ations regarding inadequate medical care. His objections are OVERRULED in all other respects. The court RECOMMITS this matter to Magistrate Judge Abhoulhosn to further evaluate Hancock's entitlement to injunctive relief with respect to the denial of Metamucil. Terminated: 12 PROPOSED FINDINGS AND RECOMMENDATION. Signed by Senior Judge David A. Faber on 4/19/2018. (cc: plaintiff, pro se, counsel of record and Magistrate Judge Aboulhosn) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
GARY WARREN HANCOCK, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-00024

BARBARA RICKARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendation (“PF&R”).

Magistrate Judge Aboulhosn

submitted his proposed findings and recommendation on February
22, 2018.

In that Proposed Findings and Recommendation, the

magistrate judge recommended that this court deny plaintiff’s
motion for a Temporary Restraining Order or Preliminary
Injunction.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation.

The failure of any party to file

such objections constitutes a waiver of such party's right to a
de novo review by this court.

Snyder v. Ridenour, 889 F.2d 1363

(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).

Moreover,

this court need not conduct a de novo review when a petitioner

“makes general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings
and recommendations.”
Cir. 1982).

Orpiano v. Johnson, 687 F.2d 44, 47 (4th

Plaintiff filed timely objections to the Proposed

Findings and Recommendation on March 1, 2018.

The court has

conducted a de novo review of the record as to those objections.
See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”).
On January 8, 2018, plaintiff filed this complaint for
alleged violations of his constitutional and civil rights
pursuant to Bivens v. Six Unknown Federal Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).

Among other things,

plaintiff alleges that his conditions of confinement are such
that he has been subjected to cruel and unusual punishment in
violation of the Eighth Amendment.

One of the grounds on which

Hancock alleges that his rights have been violated is by
defendants’ failure to provide prescribed medication – Metamucil.
Magistrate Judge Aboulhosn found that because plaintiff was
receiving an alternative to Metamucil-- fiber pills -- Hancock
could not show he would suffer irreparable harm in the absence of
injunctive relief.

Hancock objects to that portion of the PF&R,

arguing that he never said he had been given fiber pills as a

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substitute for Metamucil.

Hancock is correct.

He did not say

that prison officials provided fiber pills to him as a substitute
for Metamucil, only that such pills were available in the
commissary.

He further contends that these pills are not an

adequate substitute and gives reasons for that contention.
After reading plaintiff’s complaint, in combination with his
motion for injunctive relief, the court construes Hancock’s
allegations with respect to his medical care to be as follows:
1) he has epilepsy and/or a seizure disorder that affects his
digestion; 2) he has a prescription for Metamucil to address
these medical problems; 3) he cannot provide a copy of that
prescription for the court’s review because prison officials have
refused his requests for access to his medical records; 4)
Metamucil is medically necessary to treat his serious medical
ailments; and 5) prison officials have failed to provide
Metamucil or an adequate substitute.

See ECF No. 2 at ¶¶ 35-46.

Under the Eighth Amendment, a prison official may violate a
prisoner's right to medical care if the official is “deliberately
indifferent” to a “serious medical need.”
U.S. 97, 104–05 (1976).

Estelle v. Gamble, 429

Under certain circumstances, even the

denial of Metamucil could rise to the level of deliberate
indifference to a serious medical need.

See Spar v. Mohr, Case

No. 2:14-cv-546, 2015 WL 5895914, *10 (S.D. Ohio Oct. 9, 2015)
(“To the extent that Metamucil is at this point withheld from

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plaintiff, then, the Court concludes that plaintiff has
established a strong likelihood of success on the merits of his
claim.

Moreover, the evidence establishes that, without

Metamucil, plaintiff will suffer irreparable injury in the form
of continued pain.

Finally, the prison’s legitimate security

concerns, and those of the public, can be adequately addressed by
administering the Metamucil by a prison nurse.

Under these

circumstances, the issuance of a preliminary injunction is
therefore appropriate.”).*
Therefore, in order to enable the court to evaluate
Hancock’s entitlement to injunctive relief, the court believes a
response by defendants (who have access to plaintiff’s medical
records) is necessary.

Once defendants have filed a written

response addressing the allegations listed above, the court will
determine whether an evidentiary hearing is necessary.

For this

reason, plaintiff’s objections are SUSTAINED insofar as the court
will further evaluate his allegations regarding inadequate
medical care.

His objections are OVERRULED in all other

*

While a number of courts have found that constipation is
not a serious medical need, “[o]ther courts have concluded that
chronic constipation and its associated pain and symptomatology
can constitute a serious medical need.” Spar, 2015 WL 5895914,
at *7 (and authorities cited therein). Hancock’s allegations
suggest that his constipation is a chronic condition that is
exacerbated by his seizure disorder. However, without a response
by defendants, the court is unable to determine whether
plaintiff’s allegations are supported by any medical evidence and
whether his ailments rise to the level of a serious medical need.
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respects.

The court RECOMMITS this matter to Magistrate Judge

Abhoulhosn to further evaluate Hancock’s entitlement to
injunctive relief with respect to the denial of Metamucil.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record, to plaintiff
pro se, and Magistrate Judge Aboulhosn.
IT IS SO ORDERED this 19th day of April, 2018.
ENTER:

David A. Faber
Senior United States District Judge

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