Durley v. Moore

Filing 21

ORDER signed by Chief Judge Pamela Pepper on 7/15/2021 DENYING 17 18 plaintiff's motions for preliminary injunction. (cc: all counsel and mailed to Timothy Durley at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TIMOTHY DURLEY,
Plaintiff,
v.

Case No. 20-cv-1889-pp

DR. MARY ANN MOORE,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTIONS FOR A PRELIMINARY
INJUNCTION (DKT. NOS. 17, 18)
______________________________________________________________________________
The plaintiff is proceeding on an Eighth Amendment claim that the
defendant withheld nebulizer treatment for the plaintiff’s asthma, causing him
injury. Dkt. No. 12. In its order permitting the plaintiff to proceed on that
claim, the court denied the plaintiff’s motion for a temporary restraining order.
Id. at 6-8. The court explained the criteria for a preliminary injunction or TRO
and noted that the plaintiff had satisfied none of them. Id.
A month after the court issued that order, the court received from the
plaintiff a motion for a preliminary injunction. Dkt. No. 17. He asks the court
to order Waupun Correctional Institution to give him his nebulizer treatments
“until[] [his] case is settle[d].” Id. at 1. He alleges, as he did in the complaint,
that he is severely asthmatic but has not received nebulizer treatments from
his new doctor, Cheryl Jeanpierre. Id. He says the prison ignored his
complaints about not receiving treatment, and he feels his health is at risk. Id.
The plaintiff asserts he “has a great likelihood of success on the merits
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[because] what Defendant have done—intentionally interfer[]ing with medical
treatment once prescribed was specifically singled out by the Supreme Court as
an example of unconstitutional d[e]liberate indifference to prisoners needs.” Id.
(citing Estelle v. Gamble, 429 U.S. 97 (1976)). Citing Policy #500.80.261 of the
Division of Adult Institutions, he asserts that before a doctor may discontinue
medication, the inmate must receive a conduct report, and the plaintiff never
has received one. Id. at 2. The plaintiff asks the court to excuse him from
posting security under Fed. R. Civ. P. 65(c) because he is indigent. Id. He
concludes that “in view of the serious medical danger confronting the plaintiff,
the court should grant the relief requested without requiring the posting of
security.” Id.
Not quite three weeks after the court received the above-described
motion, it received a second copy of the same motion. Dkt. No. 18. The plaintiff
included a cover letter, indicating to the Clerk of Court that he was filing a
preliminary injunction motion and that “[his] life is at risk right now.” Id. at 3.
He also asked the clerk to send him two “1983 form packets,” as well as an
“info pack on info how long it take’s to get a preliminary injunction.” Id.

This policy relates to the Division of Adult Institutions’ responsibility to
monitor patients for medication non-adherence and misuse. It does not say
that a doctor must issue a conduct report before discontinuing medication.
What it does say is that when an incarcerated person misuses a “keep on
person” medication, the advanced care provider “shall discontinue the
medication, change to an alternative medication or order the medication as
staff-controlled.” DAI Policy #500.80.26IV(E). https://doc.wi.gov/
DepartmentPoliciesDAI/5008026.pdf.
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As the court explained in the screening order, a court may grant the
extraordinary remedy of a preliminary injunction only when the plaintiff
demonstrates that (1) his underlying case has some reasonable likelihood of
success on the merits, (2) no adequate remedy at law exists and (3) he will
suffer irreparable harm without the injunction. Wood v. Buss, 496 F.3d 620,
622 (7th Cir. 2007). A preliminary injunction is not appropriate to guard
against the “mere possibility of irreparable injury.” Orr v. Shicker, 953 F.3d
490, 501 (7th Cir. 2020) (citing Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 22 (2008)). If the plaintiff establishes those three threshold factors, the
court then must balance the harm to each party and to the public interest from
granting or denying the injunction. See Wood, 496 F.3d at 622; Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809,
813 (7th Cir. 1999). A preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997).
The plaintiff has not satisfied the criteria for a preliminary injunction.
The plaintiff asserts that he has a strong likelihood of succeeding on the merits
and cites a Supreme Court case. But to obtain a preliminary injunction, the
plaintiff must make a “‘strong’ showing” that he is likely to succeed, which
“normally includes a demonstration of how the applicant proposes to prove the
key elements of its case.” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763
(7th Cir. 2020), cert. denied sub nom., No. 20-1081, 2021 WL 1163871 (Mar.
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29, 2021). The plaintiff has not demonstrated how he proposes to prove the
elements of his case. He generally cites Estelle v. Gamble for the proposition
that interfering with medical treatment constitutes deliberate indifference. That
is true, but the plaintiff has not explained how he will prove that the defendant
was deliberately indifferent. See Estelle, 429 U.S. at 103-04. While the court
has found that the defendant has alleged enough facts to proceed on a claim
that on one occasion in October 2020, the defendant was deliberately
indifferent, dkt. no. 12 at 5-6; see Fed. R. Civ. P. 8(a)(2), alleging sufficient facts
to proceed past screening is not the same is showing that one has enough
evidence that one is likely to succeed on the merits. And the plaintiff’s
complaint related to a single event in October 2020, during which the
defendant allegedly discontinued the plaintiff’s nebulizer because he had “held
it hostage” on October 8, 2020. Dkt. No. 12 at 4. The plaintiff alleged that he
was denied medical treatment for a single “asthmatic attack.” Id.
Nor has he demonstrated that he will suffer irreparable harm if the court
does not grant injunctive relief. The plaintiff alleged in the complaint that when
he wrote the defendant and the Health Services unit asking for his nebulizer
treatment, the defendant responded, “no, use your inhalers as prescribed, no
nebulizer will be ordered because you abused it when you held it hostage.” Id.
Accepting the plaintiff’s own facts as true, he admits that even though the
defendant allegedly discontinued his nebulizer treatment, he is receiving
treatment for his asthma in the form of inhalers. A nebulizer is an electric or
battery-powered machine that vaporizes liquid asthma medicine into mist that
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the patient can then inhale, while an inhaler is a hand-held device that works
like an aerosol can to release a “puff” of mist when the patient activates it.
https://www.hopkinsallchildrens.org/Patients-Families/Health-Library/
HealthDocNew/What-s-the-Difference-Between-a-Nebulizer-and-an-I. Both
nebulizers and inhalers deliver asthma medication. The plaintiff has presented
no evidence that the only method for treating his asthma is a nebulizer, or that
inhalers do not work.
Because the plaintiff has not demonstrated a reasonable likelihood of
success on the merits or irreparable harm, the court need not address the
other criteria for obtaining a preliminary injunction. See Girl Scouts of Manitou
Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir.
2008).
The court also notes that in his motions for a preliminary injunction, the
plaintiff asserts that his current doctor, Dr. Jeanpierre, is not providing him
nebulizer treatment. But Jeanpierre is not a defendant in this lawsuit. The
plaintiff has sued only Dr. Mary Ann Moore for discontinuing his nebulizer
treatment in October 2020. His motion for a preliminary injunction says
nothing about defendant Moore and does not connect her action to Dr.
Jeanpierre’s alleged current failure to provide him with his nebulizer treatment.
The plaintiff may not seek injunctive relief against someone who is not a party
to this lawsuit and is not otherwise involved in the litigation. See Santiago v.
Walls, 196 F. App’x 416, 417 (7th Cir. 2006) (citing United States v.
Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998)).
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Because the plaintiff has not satisfied the criteria for obtaining a
preliminary injunction, the court DENIES his motions for a preliminary
injunction. Dkt. Nos. 17, 18.
Dated in Milwaukee, Wisconsin this 15th day of July, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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