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Allen v. Unidentified Person

United States District Court, S.D. Illinois

September 14, 2017

RODERICK T. ALLEN, #N94327, Plaintiff,
v.
UNIDENTIFIED PERSON, DR. BUTALID, SHARON McGLORN, DR. SIDDIQUI, and WARDEN J. LASHBROOKE, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN Chief Judge United States District Court

         Plaintiff Roderick Allen, an inmate who is incarcerated at Menard Correctional Center (“Menard”), is currently subject to a filing restriction imposed pursuant to Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). See Allen v. Engelage, No. 15-cv-00175-MJR (S.D. Ill.) (Doc. 15). On September 7, 2017, Plaintiff filed a motion seeking leave to bring a new case in this District, in order to address his claim of excessive weight loss. Id. (Doc. 20). The Court granted his motion out of an abundance of caution and allowed him to file the instant civil rights action pursuant to 42 U.S.C. § 1983, in order to address a Motion for Temporary Restraining Order (“TRO”) and Preliminary Injunction (“Motion for TRO”) (Doc. 2). Because Plaintiff seeks a TRO, the Court will immediately review this matter. See Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir. 2012).

         Motion for TRO

         In the Motion for TRO (Doc. 2) and Complaint (Doc. 1), Plaintiff alleges that he has suffered from significant weight loss since he received a tuberculosis (TB) skin test on February 26, 2010. (Doc. 1, p. 5; Doc. 2, pp. 1, 5, 10). Plaintiff believes that he was exposed to some unidentified noxious substance or “destructive . . . chemical [re]action” during the test that caused him to become ill. Id. His body weight “immediately began to drop, and his physical appearance began to deteriorate.” Id. Plaintiff estimates that his weight was around 165 pounds in 2010 and has since decreased to approximately 120 pounds. Id. He assures the Court that he has not been on a hunger strike in recent years[1] and eats all food that is served to him. (Doc. 1, pp. 6, 29; Doc. 2, p. 2). Menard officials refuse to acknowledge any problem with Plaintiff's weight or health, so he now asks the Court to intervene. (Doc. 1, pp. 6, 9; Doc. 2, pp. 2, 6).

         Plaintiff specifically seeks a medical evaluation and treatment that includes a urine test. (Doc. 1, pp. 7, 13-14; Doc. 2, pp. 3, 6). Plaintiff also requests thermal underwear, toothpaste, and toothbrushes, for no stated reason. (Doc. 1, pp. 13-14; Doc. 2, p. 3). Most importantly, he seeks the following diet tailored to his perceived need for increased nourishment:

(a) In addition to one full-portion regular food tray at each meal provide on a separate Styrofoam tray: four servings of the protein component of the meal at lunch and dinner; one serving of vegetable or lettuce, one serving of can/fresh fruit, and, four pieces of bread. When baked/fried chicken is served provide three servings. However, no pork is to be provided, and no deep-fried meats [chicken nuggets, chicken patty, or fish patty]. Instead provide four servings of some other protein [tuna fish, hot dogs, turkey (patty or ground), etc];
(b) Beverage served at each meal: Two milks at breakfast (one milk is eight ounces), three milks at lunch, and two juices at dinner (one juice of four ounces).

(Doc. 1, pp. 13-14; Doc. 2, p. 2). Finally, because he is concerned that his physical appearance makes him more susceptible to an assault, [2] he would like to work on strength training and, to this end, requests a pair of running shoes and isolated outdoor exercise for “intense outdoor running, ” which allegedly had a “very positive effect on [his] physical appearance” following the 2010 TB skin test. (Doc. 1, pp. 11, 13-14; Doc. 2, pp. 3, 7). In the Complaint, Plaintiff seeks the same relief, as well as money damages. (Doc. 1, pp. 13-14).

         A TRO is an order issued without notice to the party to be enjoined, and it may last no more than fourteen days. See Fed. R. Civ. P. 65(b)(2). A TRO may issue only if “specific facts in an affidavit or a verified complaint clearly show that immediate or irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed.R.Civ.P. 65(b)(1)(A). Such injunctive relief is also warranted “to prevent a substantial risk of serious injury from ripening into actual harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994).

         A preliminary injunction is issued only after the adverse party is given notice and an opportunity to oppose the motion. See Fed. R. Civ. P. 65(a)(1). To obtain preliminary injunctive relief, Plaintiff must demonstrate that (1) he will suffer irreparable harm without the relief; (2) his underlying case has some likelihood of success on the merits; and (3) no adequate remedy at law exists. Merritte v. Kessel, 561 F. App'x 546, 548 (7th Cir. 2014) (citing Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007)). If those three factors are shown, the court then must balance the harm to each party and to the public interest from granting or denying the injunction. Id. (citations omitted). Plaintiff's request for injunctive relief is not supported by the allegations in his Motion for TRO, Complaint, or exhibits.

         First, no specific facts suggest that Plaintiff will suffer immediate or irreparable injury, loss, or damage without immediate relief. He describes weight loss that has occurred over the course of seven years and was most dramatic in 2010. (Docs. 1-2). He describes no sudden change in his weight since 2014 and instead alleges that it has gradually decreased by an estimated thirteen- to twenty- pounds in three years. (Doc. 1, p. 30; Doc. 2, p. 1).

         Certainly, Plaintiff's low weight is concerning. At the same time, Plaintiff admits that he has always been thin. (Doc. 1, p. 6; Doc. 2, p. 5). He does not indicate how tall he is. (Docs. 1-2). He also does not describe a sudden decline in his weight in recent months. Id.

         Furthermore, his weight loss is unverified. Plaintiff admits that he does not actually know how much he weighs. This is because he will not allow prison officials to weigh him, take his vital signs, or treat him. (Doc. 1, pp. 8, 20-22). Plaintiff believes that they will only falsify his medical records. (Doc. 1, pp. 7, 30; Doc. 2, p. 7). Exhibits accompanying the Complaint document numerous instances since 2014 when Plaintiff has refused offers by medical staff to weigh him, take his vital signs, or treat him. (Doc. 1, pp. 20-22, 25-26). In a Declaration, Plaintiff confirms this. (Doc. 1, p. 30). Further, he offers no other information, such as detailed descriptions of his deteriorating appearance, loose clothing, etc., to support his claim of excessive weight loss since 2014.

         Plaintiff identifies no specific medical problems or symptoms that have coincided with his weight loss. (Docs. 1-2). He refers to “serious short and long term health problems” in the Motion for TRO. (Doc. 2, p. 3). However, he describes none in his pleadings. (Docs. 1-2). His request for a urine test might suggest that he has some quantifiable health problem, but he includes the results of two urine tests from 2014 and 2016 that were both normal. (Doc. 1, pp. 24, 33). Similarly, he suggests that intense, isolated outdoor running will help with strength training, but he makes no claim that he has been denied exercise opportunities. ...


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