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Anthony Gay, B62251 v. Katherine Clover

August 4, 2011


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on Magistrate Judge Philip M. Frazier's Report and Recommendations ("R & R #1") (Doc. 37), which suggests that the Court deny Plaintiff Anthony Gay's ("Gay") Motion for Preliminary Injunction (Doc. 15). Gay filed a timely Objection (Doc. 45) thereto, to which Defendants did not respond.

This matter also comes before the Court on Magistrate Judge Frazier's Report and Recommendations ("R & R #2") (Doc. 48), which suggests that the Court deny Defendants' Motion to Revoke (Doc. 31) Gay's in forma pauperis status. Defendants filed a timely Objection (Doc. 49) thereto, to which Gay did not respond.


After reviewing a report and recommendation, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. Because Gay filed a timely objection, the Court has placed the R & Rs under the de novo lens of review.


The instant motion essentially seeks continuous psychiatric evaluation and treatment due to Gay's history of self-mutilation, suicidal tendencies, and mental illness diagnoses. Gay avers that he has not seen a psychiatrist since March 2010 and that he is not receiving any medications for his mental illnesses.

Gay's destructive behavior perhaps culminated on August 27, 2010, when Gay "cut his testicle where it was hanging out the sack [sic] . . . . and tied his mutilated testicle to the cell door." Doc. 15, p. 3, ¶ 11. Defendant Dr. Marvin Powers ("Dr. Powers"), a medical doctor at the facility where Gay is currently incarcerated, and a urologist treated the injury to Gay's testicle. During Dr. Powers' examination of the testicle, Gay swears that the doctor made several disparaging remarks, including "Why don't you cut your nuts out and flush them down the toilet so we don't have to deal with this!" and "I'm done, you can lock him [Gay] up and throw away the key now." Doc. 22, p. 13, ¶ 13, p. 15. Although an eventual ultrasound of the testicle indicated that it was "normal," Dr. Powers did not follow up on the urologist-recommended left hydrocelectomy. Gay's testicle still causes him a great deal of pain.

R & R #1 does not find an injunction or corresponding treatment to be necessary, especially in light of Dr. Powers' Affidavit (Doc. 21-1).*fn1 Dr. Powers maintains that Gay engages in self-harming behavior so as to obtain "secondary gains," namely manipulation and harassment of prison staff. Doc. 21-1, p. 1, ¶ 6. Dr. Powers does not believe that Gay's behavior stems from a mental health problem, and he avers that several treating psychiatrists from different correctional facilities share in this belief. In addition, Dr. Powers advises that Gay is under the care of a psychiatrist, has frequent access to the prison's mental health staff, and has received Doxepin, Buspar, and Prozac during his incarceration. It should be noted that Dr. Powers has not helped decide whether Gay should receive mental health therapy.


I. Preliminary Injunction Standard

Preliminary injunctive relief is designed "to minimize the hardship to the parties pending the ultimate resolution of the lawsuit." Platinum Home Mortg. Corp. v. Platinum Fin. Grp., Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary injunction must make a threshold showing that (1) he has some likelihood of success on the merits, (2) no adequate remedy at law exists, and (3) he will suffer irreparable harm if the injunction is not granted. Ferrell v. U.S. Dep't of Housing and Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999). The Seventh Circuit Court of Appeals has defined irreparable harm as "harm that cannot be prevented or fully rectified by final judgment after trial[.]" Roland Mach. Co. v. Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984).

If the moving party is able to establish these three factors, the Court must then balance the harms that an injunction will present to both parties by means of a "sliding scale" analysis, also taking into consideration the effect that granting or denying the injunction will have on the public. Ferrell, 186 F.3d at 811. "[T]he greater the moving party's likelihood of prevailing on the merits, the less strongly it must show that the balance of harms weighs in its favor." Id.

With respect to actions proceeding under 42 U.S.C. ยง 1983, an injunction is not warranted in the absence of an ongoing constitutional violation. Al-Alamin v. ...

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