United States District Court, S.D. Illinois
Warren Williams, Plaintiff, Pro se, Sumner, IL.
For Densmore, Dietary Supervisor, Duncan, Warden, Lawrence CC, Defendants: Eric J. Bulman, LEAD ATTORNEY, Illinois Attorney General's Office - Springfield, Springfield, IL.
REPORT AND RECOMMENDATION
Stephen C. Williams, United States Magistrate Judge.
This Report and Recommendation is submitted to United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § § 636(b)(1)(B) and (C). This matter was referred to the undersigned for further pre-trial proceedings, including the resolution of Plaintiff's request for a preliminary injunction/Temporary Restraining Order. (Doc. 4). Having reviewed the filings of the parties, the undersigned has determined that no hearing is necessary. For the following reasons, the undersigned RECOMMENDS that Plaintiff's request for a Preliminary Injunction/TRO be DENIED for failure to show irreparable harm.
Plaintiff's § 1983 case alleges that Defendants are deliberately indifferent to his serious food allergies and have failed to accommodate his need for a special diet free of beans and eggs. (Doc. 1). On November 19, 2014, contemporaneously with the Complaint, Plaintiff also filed a Motion for Temporary Restraining Order, Motion for Preliminary Injunction. (Doc. 4). On December 22, 2014, Plaintiff filed a Motion to Supplement his Motion for a Temporary Restraining Order, Motion for Preliminary Injunction and included additional affidavits. The undersigned granted that Motion on January 7, 2015 and considered the additional material in drafting this Report and Recommendation. (Doc. 20). Defendants filed a Response to Plaintiff's Motion on December 29, 2014, having been issued summons on November 24, 2014. (Doc. 18). Plaintiff filed a Reply on January 9, 2015, however, the undersigned did not consider the Reply as Plaintiff did not represent that exceptional circumstances justified its filing, as required by Local Rule 7.1(g). The facts, as represented by the parties, are as follows.
Plaintiff alleges that he has a very serious food allergy to beans and eggs. (Doc. 4, p. 1) (Doc. 1-1). He further alleges that he has been approved for a " no egg and no bean" diet. (Doc. 17, p. 5) (Doc. 1-1, p. 13). Plaintiff alleges that he had to seek emergency medical treatment due to beans and eggs being mixed in with his food trays on December 28, 2013, April 13, 2014, July 4, 2014, and October 24, 2014. (Doc. 4, p. 2). Additionally, he received inadequate trays on August 25, 2014, August 30, 2014, September 5, 2014, September 10, 2014, September 19, 2014, September 23, 2014, October 1, 2014 and October 14, 2014. Specifically, Plaintiff alleges that he is given trays that are marked " no egg & beans, " but actually contain beans and eggs. (Doc. 17, p. 3). He says on the occasions that he finds beans or eggs in his tray, he will ask staff to replace the tray, but staff does not always comply with that request. (Doc. 17, p. 3). Defendants do not dispute Plaintiff's version of the facts and offered no facts of their own. (Doc. 18).
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, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (" A preliminary injunction is an extraordinary remedy never awarded as of right"). To win a preliminary injunction, a plaintiff must show (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm without the injunction, (3) that the harm he would suffer is greater than the harm a preliminary injunction would inflict on defendants, and (4) that the injunction is in the public interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010) (citing Winter, 555 U.S. at 20). The " considerations are interdependent: the greater the likelihood of success on the merits, the less net harm the injunction must prevent in order for preliminary relief to be warranted." Judge, 612 F.3d at 546.
In the context of prisoner litigation, there are further restrictions on courts' remedial power. The scope of the court's authority to enter an injunction in the corrections context is circumscribed by the Prison Litigation Reform Act (PLRA). Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary injunction relief " must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." 18 U.S.C. § 3626(a)(2). See also Westefer, 682 F.3d at 683 (the PLRA " enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: prison officials have broad administrative and discretionary authority over the institutions they manage") (internal quotation marks and citation omitted).
A TRO may issue without notice
only if: (A) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Here, Plaintiff has not shown that he is at risk of irreparable harm. Defendants do not dispute that Plaintiff has a food allergy. They do not dispute that a doctor has determined that a " no beans no eggs" diet is medically necessary and that Plaintiff has been assigned to that diet. In fact, Plaintiff's own filings indicate that his trays come marked " no beans no eggs." Defendants clearly recognize Plaintiff's need for a special diet and have attempted to accommodate him. Plaintiff has been able to point to occasions where he has not gotten the proper food despite receiving trays marked " no eggs no beans." But these occasions appear to be isolated incidents. Plaintiff represents that he has gotten inadequate trays twelve times in the year since he has been incarcerated at Lawrence Correctional Center. Although Plaintiff's medical records show that four of these incidents required trips to the health care unit, Plaintiff suffered no lasting or permanent harm on those occasions. Plaintiff's filings also indicate that he takes care to visually inspect his trays and sometimes catches improper food. Plaintiff is able to avoid the harm in this way. The situation is certainly not ideal, but the evidence shows that slip-ups are infrequent, that when mistakes are made, Plaintiff is able to catch them most of the time, and that Plaintiff's allergic reaction has been appropriately treated by the health care unit when it does occur. On this record, Plaintiff ...