United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation of Magistrate Judge Donald G. Wilkerson (Doc.
280), which recommends denying the Motion for Preliminary
Injunction filed by Plaintiff Ronald Barrow (Doc. 214). The
Report and Recommendation was entered on May 19, 2017. Barrow
filed a timely objection (Doc. 281).
Barrow, an inmate at Menard Correctional Center, filed this
lawsuit on July 11, 2014, alleging Defendants were
deliberately indifferent to his chronic medical conditions
including chronic rectal bleeding and diverticulosis, chronic
knee and shoulder pain, and chronic lower back pain. Barrow
is proceeding to trial on his deliberate indifference claims
against Defendants Dr. Shearing and Dr. Trost. Defendant
Wexford Health Sources, Inc. (“Wexford”) was
dismissed from the case on summary judgment (Doc. 240).
March 12, 2015, Barrow filed his first motion for preliminary
injunction (Doc. 76) complaining that Defendants'
deliberate disregard and denial of treatment for his chronic
back pain and disc damage, other than a prescription for
Tylenol, resulted in daily pain and suffering, limited daily
activities, loss of sleep, and the possibility of being
subject to permanent disability. In sum, Barrow requested a
preliminary injunction ordering Defendants “to provide
community standard of care treatment for Plaintiff's
lower back disc damage, including an MRI, physical therapy,
lumbar epidural steroid injection, pain management with
medication and/or surgery if necessary.” (Id.)
Barrow subsequently was appointed counsel and, after a delay
due to communications issues with the prison (outside of
Barrow's control), counsel indicated Barrow wished to
proceed with his motion for preliminary injunction.
considering Barrow's motion, on March 7, 2016, the Court
found that Barrow failed to make a clear showing that he was
entitled to injunctive relief (Doc. 164). The Court noted
that further discovery through the assistance of Barrow's
appointed counsel, as well as any dispositive motions filed
in the case, would give the Court a more comprehensive view
of the evidence in the matter (Id., p. 3). In any
event, Barrow's request for “community
standard” medical care goes beyond the requirements of
the Eighth Amendment and would require medical treatment
Barrow may not otherwise be entitled to receive
(Id.). Given that Barrow had been appointed counsel
and discovery was ongoing, the Court denied the motion
without prejudice, granting Barrow leave to refile the motion
at a later date.
January 17, 2017, Barrow refiled that motion pro
se (Doc. 214). Barrow continues to allege
that Defendants have acted with deliberate indifference as to
his lower back pain and have denied him adequate medical
care, but in his current motion cites to actions taken (or
omitted) since November 7, 2016. Specifically, Barrow asserts
that he was supposed to receive an injection for pain
management on September 26, 2016; however, he was informed
the injection would not be given until November 2016.As of
the filing of Barrow's motion in January 2017, the
injection still had not occurred.Barrow also claims that
during a visit on November 18, 2016, Dr. Trost refused to
discuss Barrow's serious medical needs, threatened him in
retaliation for this lawsuit, decreased his prescription for
pain medication, and falsified Barrow's medical records
to cover up Dr. Trost's conduct (Doc. 215, p. 3-4).
Barrow also claims that a prescription for methylprednisolone
was allowed to expire on January 1, 2017, despite
Barrow's repeated requests to be seen by Dr. Caldwell
(who is not a party to this lawsuit). Barrow seeks an
Defendants, their successors, agents, employees, and all
person acting in concert with them, to provide community
standard of care treatment for Plaintiff's chronic lower
back degenerative disc disease, including physical therapy,
lumbar epidural steroid injections, adequate pain management
with recommended medication, continual monitoring and/or
surgery if necessary, and other medical care be provided by
health care provider other than Defendant Trost and
protective order for any and all retaliation by Wexford
Health Sources Inc. and IDOC employees, cease and desist.
(Id., p. 6).
response, Defendants argue that Barrow is not likely to
succeed on the merits of his deliberate indifference claim
because, under Seventh Circuit law, a difference of opinion
on how a condition should be treated does not give rise to a
constitutional violation. Defendants provide a chronology of
Barrow's medical care and treatment since July 2016,
which includes examinations by outside specialists;
prescriptions for pain medications; a referral to an outside
pain management specialist as requested by Dr. Trost; an
examination by a Nurse Practitioner who found no signs of any
nerve root compression but ordered prescriptions for Robaxin
and Tylenol; an examination by Dr. Butalid, who ordered
Robaxin for one month; a consultation with a specialist at
the Brain and Spine Institute in Carbondale, Illinois, who
found no significant stenosis or subluxation but recommended
a single epidural trial; a follow-up examination by Dr.
Caldwell, who ordered Medrol, a steroid medication for
inflammation; a referral by Dr. Trost for Barrow to be seen
by Interventional Radiology for an epidural steroid
injection; and a subsequent exam by Dr. Trost where Dr. Trost
noted Barrow's Medrol was continued as prescribed and
reordered Robaxin 500 mg three times a day.
also argue that Barrow has an adequate remedy at law, namely,
a final determination on the merits of Barrow's case, and
that Barrow will not suffer irreparable harm absent
injunctive relief because he has continued to receive
consistent care and treatment for his chronic back pain.
Finally, Defendants argue that the “balance of
equities” is in their favor and that granting
preliminary relief in this case is not in the public
of the Report and Recommendation
April 7, 2017, Magistrate Judge Wilkerson entered an order
noting that, as of March 24, 2017, Dr. Trost is no longer
employed by Wexford as the medical director of Menard. As a
result, he no longer provides Barrow with medical care, nor
does he have access to Barrow's medical records.
Furthermore, Barrow is not seeking any injunctive relief from
Dr. Shearing, who stopped treating Barrow in 2013. Thus,
Magistrate Judge Wilkerson asked the parties to file
supplemental briefs discussing Rule 65(d)(2) of the Federal
Rules of Civil Procedure, which states that an order granting
an injunction binds only the parties, the parties'
officers, agents, or employees, and “other persons who
are in active concert or participation” with the
parties or the parties' officers, agents, or employees.
consideration of the parties' supplemental briefs,
Magistrate Judge Wilkerson entered his Report and
Recommendation (Doc. 280). Magistrate Judge Wilkerson found
that neither Dr. Trost nor Dr. Shearing are capable of
performing any injunctive relief that may be ordered since
they no longer provide medical care to Barrow. As such, any
injunction ordering specific medical care would necessarily
have to be directed to someone other than Dr. Trost or Dr.
Shearing, and an injunction ordered against a non-party would
be a nullity. Even if it would not be a nullity, there is no
non-party to this action who acted in concert or in privity
with Dr. Trost and, thus, could be bound by an injunction
under Rule ...