IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Gregory Gimbrone, :

 Plaintiff, : Case No. 2:12-cv-251

 v. : JUDGE GREGORY L. FROST

 Magistrate Judge Kemp

Dr. Krisher, et al., :

 Defendants. :

OPINION AND ORDER

On July 20, 2012 the Magistrate Judge issued a Report and

Recommendation (Doc. 24) concerning the motion for preliminary

injunction (Doc. 3) filed by plaintiff, Gregory Gimbrone, a

prisoner residing at Chillicothe Correctional Institution. The

Magistrate Judge recommended that the motion be denied. Mr.

Gimbrone has filed timely objections (Doc. 26). Defendants have

filed a motion to strike Mr. Gimbrone’s reply to defendants’

memorandum in opposition to Mr. Gimbrone’s objections (Doc. 30).

Based on the foregoing reasons, the Court will overrule the

objections (Doc. 26), adopt the Report and Recommendation (Doc.

24) in its entirety, and grant the motion to strike (Doc. 30).

Accordingly, the motion for preliminary injunction (Doc. 3) will

be denied.

I. 

If a party objects within the allotted time to a report and

recommendation, 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.” 28 U.S.C.

§636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the

Court “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).

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II. 

With limited exceptions, Mr. Gimbrone has not objected to

the accuracy of the Report and Recommendation’s summary of the

facts, so the Court adopts the summary of those facts not

objected to. The Court discusses here only those facts relevant

to the resolution of Mr. Gimbrone’s objections.

As the Report and Recommendation sets forth, in 1974 Mr.

Gimbrone’s right foot was partially amputated by a railroad car

and then reattached at the Kettering Medical Center. In 1999 Mr.

Gimbrone was committed to the custody of the Ohio Department of

Rehabilitation and Correction to begin serving a prison term of

eight to twenty-five years. At the time he began his sentence,

he was using a cane. 

According to Mr. Gimbrone’s unverified amended complaint, on

April 20, 2010, Dr. Williams, who is not a defendant in this

case, revoked Mr. Gimbrone’s privilege of using a cane. Later,

Dr. Krisher replaced Dr. Williams as the institutional physician

and on September 22, 2011 Mr. Gimbrone went to see Dr. Krisher,

complaining of pain and asking for his cane back. The complaint

then states that Dr. Krisher did not examine Mr. Gimbrone’s foot

and that Dr. Krisher stated “he did not care about [Mr.

Gimbrone’s] disability or his pain and [Mr. Gimbrone] would

receive no medical assistance concerning [his] amputated foot.” 

(Doc. 19, p. 4). Mr. Gimbrone confirmed this allegation in a

sworn affidavit, swearing that “Dr. Krisher stated [Mr. Gimbrone]

would receive no treatment concerning his disabled foot.” (Doc.

22, Gimbrone Aff. ¶8). Dr. Krisher subsequently reviewed medical

records from the Kettering Medical Center but still refused to

provide Mr. Gimbrone with further treatment for his foot. (Doc.

19). Mr. Gimbrone’s affidavit states that he can only walk for

30 minutes at a time before being forced to elevate his foot and

treat it with ice and that this is causing him to miss at least

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one trip to the chow hall every day. (Doc. 22, Gimbrone Aff.

¶¶4,5). 

In defendants’ supplemental response to Mr. Gimbrone’s

motion for preliminary injunction (Doc. 20), defendants submitted

two affidavits and additional documentation disputing Mr.

Gimbrone’s version of the facts. Defendants agree that Dr.

Krisher met with Mr. Gimbrone on September 22, 2011, but dispute

that Mr. Gimbrone was not examined. Instead, defendants state

that on September 13, 2011 Mr. Gimbrone saw a nurse about

psoriasis on his foot and requested an appointment with a doctor

about getting an order for a cane. (Doc. 20, Higginbotham Aff.

¶7). Mr. Gimbrone had that appointment with Dr. Krisher on

September 22, 2011 and Dr. Krisher examined Mr. Gimbrone. (Doc.

20, Krisher Aff. ¶6). The exam revealed that Mr. Gimbrone was

able to walk with a slight limp but without difficulty, and that

Mr. Gimbrone’s foot had multiple scars on it, but no lesions,

tenderness, swelling or warmth. (Doc. 20, Krisher Aff. ¶¶6,8). 

Dr. Krisher reviewed the medical chart and it indicated Mr.

Gimbrone “ambulates” with a “strong and steady gait without a

cane.” (Doc. 20, Krisher Aff. ¶7). Based on this examination

and review of Mr. Gimbrone’s medical chart, Dr. Krisher did not

issue a cane order. Dr. Krisher later ordered Mr. Gimbrone’s

outside medical records to verify his need for a cane and he

received those records on December 14, 2011. (Doc. 20, Krisher

Aff. ¶9; Higginbotham Aff. ¶11). Those records do not discuss

Mr. Gimbrone’s need for a cane. (Doc. 20, Higginbotham Aff.

¶11). Ms. Higginbotham, the prison’s health care administrator,

met with Mr. Gimbrone shortly after receiving the records, and

confirmed that Mr. Gimbrone did not meet the institution’s

criteria for being prescribed a cane. (Doc. 20, Higginbotham

Aff. ¶12). Mr. Gimbrone did not ask for any treatment for any

foot-related problems after that date, although he did purchase

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four bottles of aspirin. (Doc. 20, Higginbotham Aff. ¶15, Ex.G).

Mr. Gimbrone’s amended complaint sets forth a claim under 42

U.S.C. §1983, stating that defendants violated the constitutional

prohibition against cruel and unusual punishment by refusing to

provide adequate medical care. The amended complaint also

alleges that defendants violated 42 U.S.C. §12132, a provision of

the Americans with Disabilities Act, but Mr. Gimbrone’s motion

for preliminary injunction mentions only his constitutional

claims. 

 III. 

In considering whether preliminary injunctive relief is

warranted, this Court must consider (1) whether Plaintiff has

demonstrated a strong likelihood of success on the merits; (2)

whether Plaintiff will suffer irreparable injury in the absence

of equitable relief; (3) whether a stay would cause substantial

harm to others; and (4) whether the public interest is best

served by issuing an injunction. Chabad of S. Ohio &

Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432

(6th Cir. 2004). As the Sixth Circuit has explained, “[t]hese

factors are not prerequisites that must be met, but are

interrelated considerations that must be balanced together.” 

Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog,

945 F.2d 150, 153 (6th Cir. 1991). The Magistrate Judge’s Report

and Recommendation determined both that Mr. Gimbrone did not have

a strong likelihood of success on the merits and also that he did

not show he would suffer irreparable injury in the absence of

equitable relief. 

In order to determine whether Mr. Gimbrone has a strong

likelihood of success on the merits, this Court must determine

whether he is likely to prevail on his claim under the Eighth

Amendment. To establish an Eighth Amendment violation, a

prisoner must show that defendants displayed deliberate

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indifference to the prisoner’s serious medical condition. 

Estelle v. Gamble, 429 U.S. 97, 106 (1976); Wilson v. Seiter,

501 U.S. 294, 297 (1991). This formulation has both a subjective

and an objective component. Dominguez v. Corr. Med. Servs., 555

F.3d 543, 550 (6th Cir. 2009). Objectively, the medical

condition must be substantially serious. Farmer v. Brennan, 511

U.S. 825, 834 (1994). Subjectively, the defendants accused of

violating the Eighth Amendment must have acted with a state of

mind that can accurately be described as “deliberate

indifference.” Id. Each of these components requires some

elaboration.

As to the subjective component, in Farmer, 511 U.S. at 839,

the Court adopted “subjective recklessness as used in the

criminal law” as the appropriate definition for deliberate

indifference. It held that “a prison official cannot be found

liable under the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety . . .” 

Id. at 837. Officials must be aware of facts from which they

could conclude that a substantial risk exists and must actually

draw that conclusion. Id. Prison officials who know of a

substantial risk to the health or safety of an inmate are free

from liability if “they responded reasonably to the risk, even if

the harm ultimately was not averted.” Id. at 844.

An Eighth Amendment medical claim must be premised on

deliberate indifference. Mere negligence by a prison doctor or

prison official with respect to medical diagnosis or treatment is

not actionable under 42 U.S.C. §1983. “[A] complaint that a

physician has been negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment

under the Eighth Amendment. Medical malpractice does not become

a constitutional violation merely because the victim is a

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prisoner.” Estelle, 429 U.S. at 106; see Brooks v. Celeste, 39

F.3d 125 (6th Cir. 1994).

The Magistrate Judge found that Mr. Gimbrone did not show he

was likely to succeed on the merits because although there was

some dispute as to whether Mr. Gimbrone’s disability qualified as

a serious health condition and whether defendants demonstrated

indifference to his condition, Mr. Gimbrone’s unsupported

allegations concerning these matters were inherently incredible

given the facts of the case and the documentary evidence provided

by defendants. The Magistrate Judge also found that there was

little if any medical evidence supporting a claim of irreparable

injury if a cane was not immediately prescribed. 

IV. 

Mr. Gimbrone has made numerous objections to the Magistrate

Judge’s Report and Recommendation. This Court will consider each

in turn. 

A.

 First, Mr. Gimbrone objects to the Magistrate Judge’s

statement that Mr. Gimbrone was examined by Dr. Williams on April

20, 2010 and that his cane was taken as a result of that

examination. He cites to defendants’ Exhibit A, a copy of Mr.

Gimbrone’s medical record, and points out that it has no entry

for April 20, 2010. Mr. Gimbrone argues that no examination took

place prior to his cane being taken away in 2010. 

 It appears that the Magistrate Judge’s mention of the April

20, 2010 date came from Mr. Gimbrone’s amended complaint, where

he states “[o]n April 20, 2010 Dr. Williams stripped the

Plaintiff of his cane.” (Doc. 19, p. 4). Although the amended

complaint makes no mention of an examination accompanying this

action, the affidavit of Ms. Higginbotham refers to an

appointment Mr. Gimbrone had with Dr. Williams on April 5, 2010

and that Dr. Williams found Mr. Gimbrone no longer required use

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of a cane and chose not to renew the order at that time. (Doc.

20, Higginbotham Aff. ¶6). Mr. Gimbrone did not dispute this

evidence before the Magistrate Judge. Thus, although there is no

evidence Mr. Gimbrone was examined by Dr. Williams, there is

support in the record that Mr. Gimbrone’s had an appointment 

with Dr. Williams and the cane was revoked after that

appointment.

Regardless, Dr. Williams is not a defendant in this action

so whether or not he examined Mr. Gimbrone before taking his cane

is not relevant to this litigation. Mr. Gimbrone’s complaints

instead center around Dr. Krisher’s refusal to reissue the cane. 

The Magistrate Judge’s mention of an April 20, 2010 examination

by Dr. Williams was by way of background and was not central to

the Magistrate Judge’s reasoning or analysis. The dispute over

this issue provides no basis for this Court to reject the

Magistrate Judge’s Report and Recommendation.

B. 

Mr. Gimbrone’s second objection is that the medical records

submitted by defendants are contradicted by the rest of the

medical evidence. Specifically, he argues the notation that Mr.

Gimbrone’s walk is “strong and steady” (Doc. 20, Ex.A, p.1) is

contradicted by other medical evidence stating he can only walk

short distances without a cane. Mr. Gimbrone, however, has not

pointed this Court to any specific document that contradicts this

finding or indicates that Mr. Gimbrone needed a cane. Mr.

Gimbrone simply appears to disagree with Dr. Krisher’s treatment

of his foot, but this difference of opinion regarding appropriate

treatment does not state a constitutional claim. See e.g. Kimsey

v. Seiter, 785 F.2d 309 (6th Cir. 1986)(unpublished); Westlake

v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)(noting that

“[w]here a prisoner has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are

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generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law”).

C.

In his third objection, Mr. Gimbrone continues to dispute

that Dr. Krisher examined him at all, which Mr. Gimbrone argues

demonstrates Dr. Krisher’s deliberate indifference. Mr. Gimbrone

argues he is entitled to an evidentiary hearing to determine his

credibility on this issue. 

The Magistrate Judge recognized that there were factual

disputes regarding whether or not Dr. Krisher examined Mr.

Gimbrone and refused to treat Mr. Gimbrone. Both of these

disputes are relevant to whether or not Dr. Krisher acted with

deliberate indifference. However, the Magistrate Judge did not

order an evidentiary hearing. In the Sixth Circuit, “[w]here

facts are bitterly contested and credibility determinations must

be made to decide whether injunctive relief should issue, an

evidentiary hearing must be held. [However,] where material

facts are not in dispute, or where facts in dispute are not

material to the preliminary injunction sought, district courts

generally need not hold an evidentiary hearing.” Certified

Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d

535, 553 (6th Cir. 2007)(quoting McDonald’s Corp. v. Robertson,

147 F.3d 1301, 1311-1312 (11th Cir. 1998)). Where the dispute is

created by a prisoner’s statements that are themselves inherently

incredible, however, an evidentiary hearing may not always be

necessary. See Valentine v. United States, 488 F.3d 325, 333

(6th Cir. 2007)(in the habeas context, no evidentiary hearing is

required where petitioner’s allegations cannot be accepted as

true because they are contradicted by the record, inherently

incredible, or conclusions rather than statements of fact); 

Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir.

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2002) (holding in the context of a §1915A dismissal, “no

evidentiary hearing is required in a prisoner’s case . . . when

the factual allegations are incredible”); Respect Inc. v.

Committee on the Status of Women, 781 F.Supp. 1358, 1367

(N.D.Ill. 1992)(holding that even on summary judgment a district

court should not credit testimony that is inherently incredible;

namely, testimony that is irrefutably contradicted by documentary

evidence); Adderly v. Ferrier, No. 07–507, 2010 WL 2636109, at

*4 (W.D.Pa. 2010)(holding that plaintiff’s objections were

inherently incredible such that no reasonable juror could believe

them in light of the whole record and upholding the magistrate

judge’s granting of summary judgment).

This Court agrees with the Magistrate Judge’s determination

that Mr. Gimbrone’s statements that Dr. Krisher refused to

examine him or provide him with any further treatment for his

foot are inherently incredible and contradicted by the record

evidence, and therefore no evidentiary hearing is necessary. The

medical records show that when Mr. Gimbrone asked for treatment

for psoriasis on his foot and to have a cane issued, he received

a medical appointment in less than two weeks. Mr. Gimbrone’s

claim that Dr. Krisher stated he would not treat Mr. Gimbrone’s

foot in any way is simply not believable in light of the

documentary evidence that demonstrates an exam was conducted by

Dr. Krisher, Dr. Krisher made specific notations concerning the

appearance of Mr. Gimbrone’s foot, and Dr. Krisher requested and

intended to review additional medical records to determine Mr.

Gimbrone’s need for a cane. (Doc. 20, Ex. A, p. 4). Grievance

records Mr. Gimbrone himself attached to his original complaint

similarly reflect that Dr. Krisher examined Mr. Gimbrone,

reviewed his records, and made a medical judgment that a cane was

unnecessary. (Doc. 2, ECF pp.7, 10, 12, 15). 

To bolster his credibility that Dr. Krisher did not examine

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him, Mr. Gimbrone points out that the nurse’s findings recorded

on his nursing assessment on September 13 were not reflected in

Dr. Krisher’s notes and that Dr. Krisher prescribed no treatment

for him. Neither of these arguments bolsters Mr. Gimbrone’s

credibility. Mr. Gimbrone argues that Dr. Krisher’s findings

that he did not “observe lesions, tenderness, edema, or warmth”

are contrary to the findings on the nursing assessment from

September 13 (Doc. 20, Ex. B) and therefore demonstrate that Dr.

Krisher did not examine Mr. Gimbrone. The nursing assessment

simply states that Mr. Gimbrone has “multiple areas of psoriasis”

and specifically indicates his left elbow, right elbow, and legs

have psoriasis flare up. The nurse does not mention psoriasis on

the right foot. Rather, she says the right foot has “old injury

scars” and “redness along the scar line.” These statements do

not contradict Dr. Krisher’s notes because Dr. Krisher’s

examination appears to have been limited to Mr. Gimbrone’s right

foot and Dr. Krisher’s notes indicate Mr. Gimbrone has a scar on

that foot. (Doc. 20, Ex. B, p. 4). Similarly, the fact that Mr.

Gimbrone received no further treatment does not support a finding

that Dr. Krisher refused to examine Mr. Gimbrone. The records

indicate Mr. Gimbrone needed no further treatment, so one would

not expect Dr. Krisher to prescribe any. 

Mr. Gimbrone has had ample opportunity to submit evidence

beyond his unsupported allegations regarding the deliberate

indifference of defendants. The Magistrate Judge allowed both

parties to file supplemental briefings on the preliminary

injunction, yet Mr. Gimbrone continued to rely only on his own

unsupported statement. An evidentiary hearing would not likely

result in a finding that Mr. Gimbrone was so credible as to

outweigh the other evidence in this case.

Importantly, an evidentiary hearing at this stage of the

litigation would simply lead to preliminary findings. “The web

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of conclusions upon which a preliminary injunction rests are

‘statements as to probable outcomes,’ nothing more.” Campbell

Soup Co. v. Giles, 47 F.3d 467, 472 (1st Cir. 1995)(quoting

Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir. 1988)). At

this point, the written record was sufficient for the Magistrate

Judge to make an informed and preliminary conclusion that success

on the merits is not likely and injunctive relief is not

warranted, and this Court makes the same finding.

D. 

In his fourth objection, Mr. Gimbrone argues that the

records from Kettering Medical Center submitted by defendants do

not constitute the entire medical file that is well over 300

pages. Had the entire record been submitted, he states, it would

have demonstrated that the reconstruction surgery on his foot was

intended to provide him limited mobility in concert with use of a

cane. Mr. Gimbrone, however, has not attached any additional

medical documents to either his motion for preliminary injunction

or to his objections indicating that he is in need of a cane at

this time. Therefore, there is no evidence in the record that

Dr. Krisher failed to adequately review certain records. 

Moreover, the issue here is not whether this Court believes

Mr. Gimbrone is entitled to use a cane, but whether Mr. Gimbrone

is likely to show that he has a “serious” medical need to which

defendants were “deliberately indifferent.” Defendants were not

required to submit the entire medical record in order to respond

to Mr. Gimbrone’s motion for preliminary injunction on these

issues. Rather, defendants submitted the medical documentation

considered or available for consideration by Dr. Krisher when he

decided not to prescribe a cane, including both Mr. Gimbrone’s

prison medical records and limited medical records from the

Kettering Medical Center. Here, the evidence submitted

demonstrates that Mr. Gimbrone was examined and at least some of

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his medical records reviewed. This evidence supports the

Magistrate Judge’s finding that defendants were not deliberately

indifferent to Mr. Gimbrone’s condition. 

E.

Mr. Gimbrone’s fifth objection is not clear, but this Court

construes it as an objection to the Magistrate Judge’s statement

that Mr. Gimbrone did not seek treatment for his pain for almost

a year. (Doc. 24, p. 7). Mr. Gimbrone states that he sought

treatment by both requesting a cane, which was denied, and by

purchasing aspirin, which was ineffective in relieving his pain.

The Magistrate Judge’s reference to Mr. Gimbrone’s failure

to seek treatment is relevant to Mr. Gimbrone’s credibility

regarding the seriousness of his condition. According to Mr.

Gimbrone, he was not taking any medications (aspirin included)

that were effective in relieving his pain. (Doc. 22, Ex. M, p.2).

Thus, the Magistrate Judge found it incredible that Mr. Gimbrone

would continue to suffer great pain, yet fail to ask for any

additional treatment. The record reflects that “Inmate Gimbrone

has not submitted any Health Services Request forms since

November 2011.” (Doc. 20, Aff. Beth Higginbotham, ¶15). Mr.

Gimbrone’s request for a cane was in September of 2011. The

Magistrate Judge’s statement that Mr. Gimbrone did not request

any additional treatment refers to the period after his request

for a cane was denied. This Court agrees with the Magistrate

Judge that Mr. Gimbrone’s failure to request any additional

treatments after November 2011 demonstrates that Mr. Gimbrone’s

condition was likely not as serious as he claims it to be

F.

In Mr. Gimbrone’s sixth objection he argues that the

Magistrate Judge failed to address his claims under 42 U.S.C.

§12132 of the Americans with Disabilities Act. Although this

section was raised in his complaint, Mr. Gimbrone did not argue

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anything related to 42 U.S.C. §12132 in support of his motion for

a preliminary injunction. This Court will not consider it here,

because the Magistrate Judge did not have the opportunity to

address it. Guethlein v. Potter, No. 1:09–cv–451–HJW, 2011 WL

672046, *8 (S.D. Ohio February 17, 201l)(“‘[A]bsent compelling

reasons, [the Federal Magistrate Judges Act] does not allow

parties to raise at the district court stage new arguments or

issues that were not presented to the magistrate,’” quoting Murr

v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).

V.

Defendants seek, pursuant to Fed. R. Civ. P. 72, an order

from the Court striking Mr. Gimbrone’s reply (Doc. 29) to

defendants’ opposition to Mr. Gimbrone’s objections to the Report

and Recommendation of the Magistrate Judge. (Doc. 30). Fed. R.

Civ. P. 72(b) states in part

Within 14 days after being served with a copy of the

recommended disposition, a party may serve and file

specific written objections to the proposed findings

and recommendations. A party may respond to another

party’s objections within 14 days after being served

with a copy. . .

Thus, while the rule permits the filing of objections and a

response, it does not contemplate a reply memorandum by the

objecting party. Accordingly, a reply memorandum is not an

appropriate filing (See Easley v. Comm’r of Soc. Sec., No.

1:11–CV–00064, 2012 WL 910015, at *1 (S.D. Ohio Mar. 16, 2012); 

Credit Gen. Ins. Co. v. Ins. Servs. Group, Inc., No. 2:05-CV-148, 

2006 U.S. Dist. LEXIS 40459, at *5-7 (S.D. Ohio June 19, 2006))

and the Court therefore GRANTS the defendants’ motion to strike.

VI.

Based on the foregoing reasons, the Court, after conducting

a de novo review, overrules Mr. Gimbrone’s objections and ADOPTS

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the Report and Recommendation (Doc. 24) in its entirety. 

Accordingly, Mr. Gimbrone’s motion for preliminary injunction

(Doc.3) is DENIED. The Court GRANTS defendants’ motion to strike

(Doc.30) and Mr. Gimbrone’s Reply (Doc.29) is ordered stricken

from the record in this case. 

IT IS SO ORDERED.

 /S/ Gregory L. Frost

Gregory L. Frost, Judge

United States District Court

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