UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICKIE LEE HUNT,

Plaintiff,

Civil Action 2:11-cv-00653

v. Judge Algenon L. Marbley

Magistrate Judge E.A. Preston Deavers

GARY MOHR, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the Magistrate Judge’s September 26,

2011 Report and Recommendation (ECF No. 22), as well as Plaintiff’s Objections (ECF No. 25). 

The Magistrate Judge recommended that the Court deny Plaintiff’s Motion for Preliminary

Injunction. (ECF No. 5.) Based on the Court’s review, the Court ADOPTS the Report and

Recommendation and DENIES Plaintiff’s Motion for Preliminary Injunction.

I.

Plaintiff, a pro se prisoner, brings claims for injunctive relief against Defendants for

deliberate indifference to his serious medical needs. First, Plaintiff maintains that Defendants

improperly canceled his cataract-removal surgery. Second, Plaintiff contends that Defendants

are interfering with and denying him the ability to receive medication for esophageal conditions.1

Plaintiff moved for a preliminary injunction at the same time he filed his Complaint. Within his

Motion, Plaintiff sought the same relief he requested in his Complaint. Defendants opposed

Plaintiff’s Motion for Preliminary Injunction, providing the Declaration of Polly Scmalz, a

1

 Plaintiff also emphasizes that Defendants are denying him consultations with a medical

specialist for these issues.

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Registered Nurse and HealthCare Administrator for Plaintiff’s prison.

On September 26, 2011, the Magistrate Judge recommended denial of the Motion for

Preliminary Injunction.2

 She found that Plaintiff failed to demonstrate a likelihood of success as

to either of his claims. Additionally, the Magistrate Judge found that other factors relevant to the

preliminary injunction analysis did not weigh in favor of granting Plaintiff’s Motion. Plaintiff

filed Objections to the Report and Recommendation on October 5, 2011. Plaintiff objects to the

Magistrate Judge’s Report and Recommendation on various grounds, and repeats many of the

same arguments raised on initial briefing.

II.

A Magistrate Judge may issue proposed findings and recommendations for disposition on

a motion for injunctive relief. See 28 U.S.C. § 636(b)(1). When faced with objections to a

Magistrate Judge’s Report and Recommendation “[a] judge of the court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations

to which objection is made.” Id. “A judge of the court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate judge.” Id.

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A preliminary injunction “should be

granted only if the movant carries his or her burden of proving that the circumstances clearly

demand it.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) (internal quotations omitted). 

2

 Within the Background section of the Report and Recommendation, the Magistrate

Judge provided a more detailed account of the parties’ positions as well as supporting allegations

and evidence. (Report & Recommendation 1–4, ECF No. 22.) The Court adopts and

incorporates the Magistrate Judge’s Background section herein. 

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555

U.S. at 20.

III.

Plaintiff contends that the Magistrate Judge committed various errors in recommending

that the Court deny his Motion for Preliminary Injunction. The Court disagrees. Based upon its

review of the record, the Court finds that Plaintiff has failed to carry his burden of establishing

the necessity of a preliminary injunction.

As noted above, both of Plaintiff’s claims in this case are for deliberate indifference to a

serious medical need. “Such a claim has both a subjective and objective component.” Barnett v.

Luttrell, 414 F. App’x 784, 787 (6th Cir. 2011). “The objective component requires the

existence of a sufficiently serious medical need.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890,

895 (6th Cir. 2004) (internal quotations omitted). “The subjective component requires an inmate

to show that prison officials have a sufficiently culpable state of mind in denying medical care.” 

Id. (internal quotations omitted). As the Magistrate Judge noted, the United States Court of

Appeals for the Sixth Circuit has recently provided:

In evaluating a deliberate indifference claim, “[w]e distinguish between cases

where the complaint alleges a complete denial of medical care and those cases

where the claim is that a prisoner received inadequate medical treatment.”

Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976). Where a prisoner

alleges only that the medical care he received was inadequate, “federal courts are

generally reluctant to second guess medical judgments.” Id. However, it is

possible for medical treatment to be “so woefully inadequate as to amount to no

treatment at all.” Id.

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Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011).

Here, the Court concludes that Plaintiff has not demonstrated a likelihood of success on

the merits of either claim. The Court finds the Magistrate Judge’s analysis persuasive and

incorporates it into this Order and Opinion. Contrary to the implications of Plaintiff’s

Objections, this case does not present a situation where Defendants have completely denied

medical care. Rather, based on the evidence the parties have presented, it appears that Plaintiff

simply disagrees with the prison’s medical providers as to the necessity of his cataract surgery

and the proper treatment of his esophageal conditions.3 Additionally, the Court agrees with the

Magistrate Judge that, it is not per se unconstitutional for Defendants to require Plaintiff to

purchase a portion of his medication. Ultimately, Plaintiff has failed to provide compelling

evidence to demonstrate that Defendants’ treatment decisions are so improper as to amount to

deliberate indifference to his medical needs.

Plaintiff objects to the Magistrate Judge’s determination of his chances of success as

“premature.” Nevertheless, likelihood of success is a factor the Court must consider in

determining whether to issue a preliminary injunction. Plaintiff maintains that after discovery he

will be successful on the merits of this claim. Although this assertion may eventually prove true,

it does not mean that Plaintiff is entitled to injunctive relief at this stage in the litigation. If

Plaintiff’s action survives the currently pending Motion for Judgment on the Pleadings (ECF No.

29), he will receive adequate time to conduct discovery to obtain evidentiary support for his

3

 Plaintiff alleges that the Magistrate Judge ignored his request for specialty consultation. 

This does not appear to be the case, as the Magistrate Judge acknowledged that Plaintiff was

seeking this relief. (See Report & Recommendation 3, ECF No. 22.) Regardless, Plaintiff has

not provided sufficient evidence to indicate that Defendants are being deliberately indifferent by

refusing to provide a specialty consultation. 

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claims.

Additionally, the Court finds that the remaining factors relevant to its preliminary

injunction consideration do not tip the scales in Plaintiff’s favor. The Court agrees with the

Magistrate Judge’s reasoning:

Plaintiff has failed to show, beyond the merely speculative level, that he will suffer

irreparable injury. In moving for injunctive relief, Plaintiff relies primarily on his

own opinion to contend that he is in immediate danger of losing vision in his right

eye and to establish that his esophagus is deteriorating. Furthermore, Plaintiff’s

citation to general textbook excerpts do little to demonstrate that Plaintiff himself is

under a significant likelihood of danger. In this case, medical professionals have

indicated that Plaintiff’s surgery is not currently necessary and that he is being

provided proper medication for his esophagus issues. Additionally, the evidence the

parties have provided indicates that Plaintiff’s condition is being routinely

monitored. Under these circumstances, Plaintiff’s own speculation as to the likely

extent of his injuries is insufficient.

Finally, the Court finds that the other factors relevant to the preliminary injunction

analysis do not shift the balance in Plaintiff’s favor. Plaintiff maintains that no harm

will come to others if an injunction is issued and, in fact, such an injunction would

be in the public interest. Even assuming a lack of significant harm to others, with

such a bare showing as to likelihood of success and irreparable harm, the

undersigned is not convinced that second guessing the decisions of prison medical

personnel would be in the public interest. Hughes v. Lavender, No. 2:10–cv–674,

2011 WL 1337155, at *4 (Apr. 6, 2011) (holding that removing the normal deference

the Court gives to jail staff to make medical care decisions through a preliminary

injunction, without a strong showing of threat of immediate injury, would not serve

the public interest). Additionally, the undersigned stresses that in seeking an

injunction Plaintiff is not attempting to preserve the status quo, but is instead seeking

extensive relief prior to an adjudication on the merits.

(Report & Recommendation 9–10, ECF No. 22.)

IV.

For the foregoing reasons, the Court ADOPTS the Magistrate Judge’s Report and

Recommendation and DENIES Plaintiff’s Motion for Preliminary Injunction. (ECF No. 5.) To

the extent that Plaintiff continues to seek appointment of counsel his request is DENIED. (See

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ECF No. 23.) The Court also finds a reply to Defendant’s Answer unnecessary and also finds it

unnecessary to strike any portion of Defendants’ Answer. (See id.)

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY

 UNITED STATES DISTRICT COURT

DATED: February 3, 2012

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