UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephen Miner

v. Civil No. 06-cv-315-PB

New Hampshire State Prison,

Bruce Cattell, Warden

REPORT AND RECOMMENDATION

Pro se plaintiff Stephen Miner (“Miner”) filed a motion for

a preliminary injunction as part of his Complaint (doc. no. 1),

which has come before me for a recommendation of disposition. 

Ordinarily, before any action is taken on a pro se complaint, it

is subject to preliminary review to determine, among other

things, whether a claim for relief has been stated. See 28

U.S.C. § 1915A; see also U.S. District Court for the District of

New Hampshire Local Rule 4.3(d)(2). In this matter, Miner claims

to need emergency medical care, which resulted in the expeditious

scheduling of a hearing to determine whether Miner was threatened

with irreparable harm to justify the injunctive relief sought. 

A hearing on the matter was held on September 22, 2006, at which

Miner testified, along with several officials from the New

Hampshire Department of Corrections who work at the New Hampshire

State Prison (“NHSP”) where Miner is incarcerated. Based on the

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1“Mere injuries, however substantial, in terms of money,

time and energy necessarily expended in the absence of a stay,

are not enough. The possibility that adequate compensatory or

other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of

irreparable harm.” Acierno,40 F.3d at 653. 

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evidence presented, I conclude Miner has not demonstrated a need

for a preliminary injunction and recommend that his motion be

denied.

Discussion

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the matter. Such a situation arises when some harm from the

challenged conduct could not be adequately redressed with

traditional legal or equitable remedies following a trial. See

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F,3d 12, 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v. New Castle County, 40 F.3d

645, 653 (3rd Cir. 1994)(explaining irreparable harm and its

effect on the contours of preliminary injunctive relief)1. 

Absent irreparable harm, there is no need for a preliminary

injunction.

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The need to prevent irreparable harm exists, however, to

enable the court to render a meaningful disposition on the

underlying dispute. See CMM Cable Rep., Inc. v. Ocean Coast

Prop., Inc., 48 F.3d 618, 620-1 (1st Cir. 1995)(explaining the

purpose of enjoining certain conduct as being to “preserve the

‘status quo’ . . . to permit the court more effectively to remedy

discerned wrongs”); see also Becton v. Thomas, 48 F. Supp. 2d

747, 753 (W.D. Tenn. 1999) (“‘The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.’” (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921,

925 (6th Cir. 1978)). The court’s focus, therefore, must always

be on the underlying merits of the case, and what needs to be

done to ensure that that dispute can be meaningfully resolved.

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Standard Oil Co. (Puerto Rico) v. MonroigZavas, 445 F.3d 13, 17-18 (1st Cir. 2006) (discussing the

requisite showing to obtain a preliminary injunction); see also

Ross-Simons of Warwick, Inc., 102 F.3d at 18-19 (explaining the

burden of proof for a preliminary injunction). Those factors

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2Miner also asserts that this treatment violates his

Fourteenth Amendment rights; however, as explained herein, I

recommend Miner’s complaint be dismissed so I need not address

the viability of his alleged Fourteenth Amendment claim.

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are: “(1) the likelihood of success on the merits; (2) the

potential for irreparable harm [to the movant] if the injunction

is denied; (3) the balance of relevant impositions, i.e., the

hardship to the nonmovant if enjoined as contrasted with the

hardship to the movant if no injunction issues; and (4) the

effect (if any) of the court’s ruling on the public interest.” 

Esso Standard Oil Co., 445 F.3d at 18. If the plaintiff is not

able to show a likelihood of success on the merits, the remaining

factors “become matters of idle curiosity,” id., insufficient to

carry the weight of this extraordinary relief on their own. 

See id. (the “sine qua non of the four-part inquiry is likelihood

of success on the merits”). Yet, “the predicted harm and the

likelihood of success on the merits must be juxtaposed and

weighed in tandem.” Ross-Simons of Warwick, Inc., 102 F.3d at 19 

In this action, Miner seeks relief under 42 U.S.C. § 1983

for violations of his Eighth Amendment right to be free from

cruel and unusual punishment, based on allegations that the NHSP

has failed to provide him with adequate medical care2, and under

Title II of the American Disabilities Act, 42 U.S.C. § 12131,

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based on the same alleged mistreatment. Miner admitted he has

not exhausted his administrative remedies, which is a condition

precedent to pursuing these claims in federal court. See 42

U.S.C.A. § 1997e(a)(2003); see also Porter v. Nussle, 524 U.S.

516, 532 (2002) (holding that exhaustion applies to all inmate

suits about prison life). While his failure to exhaust may

indicate that injunctive relief should be denied because he would

be unlikely to succeed on the merits of his underlying suit,

when, as here, the plaintiff claims emergent need for medical

attention, the court may consider those claims in determining the

risk of irreparable harm independent of the exhaustion

requirement. See e.g. Tvelia v. Dept. of Corrections, Civ. No.

03-537-M, 2004 WL 298100, *2 (D.N.H. Feb. 13, 2004) (citing

authority to uphold the federal court’s inherent ability to

enjoin conduct “plainly violative of an inmate’s constitutional

rights”).

Miner seeks injunctive relief while he pursues the available

administrative processes, claiming he will be irreparably harmed

without it. Specifically, he seeks (i) an appointment with a

pain specialist, (ii) to be moved to a housing unit that is

wheelchair accessible and (iii) to be protected from retaliation. 

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3Among other limitations, Miner can walk only short

distances, with the aid of a cane and an elevated shoe, but

otherwise needs a wheelchair for ambulation. He takes medication

for his chronic pain, several times a day. And he would like

additional surgery, to replace a “missing” hip and to repair a

fractured rod in one arm, which are both lingering problems from

the crash. There was persuasive evidence that the hip surgery

would not improve Miner’s health, but, to the contrary, presented 

a good risk of complicating it. On the other hand, the scant

record before me fairly clearly indicated Miner is in need of

medical care for the fractured rod in his arm. 

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After carefully considering the arguments and evidence before me,

however, I cannot find a risk of imminent irreparable harm to

justify granting Miner the relief sought while he exhausts his

administrative remedies.

Nothing in the record supports his contention that he is in

need of immediate protection or any other type of expedited

relief. Miner clearly has serious medical problems, caused by a

head-on motor vehicle collision in May 1997. As a result of that

accident, Miner continues to suffer from numerous orthopaedic

complications.3 The evidence presented showed he has received

extensive medical attention since his arrival at the NHSP on July

25, 2006. Though Miner challenged the frequency and type of pain

medication he was receiving, the evidence showed he receives

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4Miner complained that he is not receiving the same narcotic

drugs he had been prescribed before his incarceration; however,

testimony at the hearing provided ample, legitimate reasons for

the NHSP decision to prescribe this alternative medication. I am

persuaded that Miner’s pain is being managed adequately.

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“Ultrim,” a non-narcotic medicine, three times a day.4 It was

undisputed that Miner is being housed on the ground floor of a

unit that is designed to be handicap accessible and which, in

fact, holds other inmates who require wheelchairs and other

special services. Finally, while Miner claimed he is being

retaliated against, there simply was no evidentiary or

documentary support for this allegation. To the contrary,

several witnesses testified on behalf of the state regarding the

care and attention they have given Miner, in an effort to

accommodate his medical needs, which I found to be consistent and

credible. This evidence simply does not carry the weight of the

extraordinary relief sought.

Conclusion

Since Miner failed to demonstrate any risk of irreparable

harm and is unlikely to succeed in this action because he has not

exhausted his administrative remedies, I cannot find any basis to

justify recommending a preliminary injunction. I, therefore, 

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recommend that his motion for preliminary injunctive relief be

denied. I further recommend that this action be dismissed,

without prejudice, until Miner completely exhausts his

administrative remedies. See 42 U.S.C. § 1997e(a) (requiring

exhaustion of all administrative remedies as are available prior

to bringing suit in federal court challenging prison conditions); 

Porter, 534 U.S. at 532 (same); Acosta v. U.S. Marshals Serv.,

445 F.3d 509, 514 (1st Cir. 2006) (citing authority to explain

that § 1997e(a) requires exhaustion before commencing suit).

 Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d

11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete, 792

F.2d 4, 6 (1st Cir. 1986). 

________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 25, 2006

 

cc: Mary E. Maloney, Esq.

 Stephen Miner, pro se

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