United States District Court, S.D. Illinois
CHARLES E. THORTON, Plaintiff,
JACQUELINE LASHBROOK et al., Defendants.
MEMORANDUM AND ORDER
Herndon United States District Judge.
matter comes before the Court on the Report and
Recommendation (“Report”) of Magistrate Judge
Reona J. Daly (Doc. 41). The Report recommends that the Court
deny plaintiff Charles E. Thorton's motion for
preliminary injunction (Doc. 4). Thorton has objected to the
Report. (Doc. 42). Based on the applicable law, the record
and the following, the Court ADOPTS the Report (Doc. 41) in
its entirety, and denies the motion for preliminary
injunction (Doc. 4).
Charles E. Thornton brought this pro se action for
deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. On July 24, 2017, the Court screened
Thornton's complaint, and construed it to include a
request for a preliminary injunction based on his request for
“immediate” injunctive relief stemming from his
Eighth Amendment claim of deliberate indifference to medical
needs based on defendants' delay in filling
plaintiff's prescription refill for Neurontin (Doc. 3).
In the screening Order, the Court also directed that a motion
for preliminary injunction be added to the docket sheet.
Judge Daly held an evidentiary hearing on the motion for
preliminary injunction on August 23, 2017 (Doc. 25). Pursuant
to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Daly
submitted the Report on October 19, 2017 (Doc. 41). The
Report recommends that the Court deny Thornton's motion
for preliminary injunction finding that Thornton had not
established irreparable harm. The Report also found that
Plaintiff had not demonstrated a likelihood of success on the
merits. The Report was sent to the parties with a notice
informing them of their right to appeal by way of filing
“objections” within 14 days of service of the
Report. Plaintiff filed timely objections on October 23, 2017
Court's review of the Report is governed by 28 U.S.C.
§ 636(b)(1), which provides in part:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
Civ. P. 72(b) also directs that the Court must only make a
de novo determination of those portions of
the report and recommendation to which specific written
objection has been made. Johnson v. Zema Sys. Corp.,
170 F.3d 734, 739 (7th Cir. 1999). If no objection or only a
partial objection is made, the Court reviews those unobjected
portions for clear error. Id. In addition, failure
to file objections with the district court “waives
appellate review of both factual and legal questions.”
Id. Under the clear error standard, the Court can
only overturn a Magistrate Judge's ruling if the Court is
left with “the definite and firm conviction that a
mistake has been made.” Weeks v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.
the Report found:
“Plaintiff has not demonstrated that he will suffer
irreparable harm absent injunctive relief. Plaintiff's
attempts to schedule appointments with physicians to renew
his prescription were frustrated by consecutive cancellations
that, according to Defendant Walls' testimony, are not
likely to recur. Notably, at the evidentiary hearing,
Plaintiff was advised that he could ask a physician about
enrollment in a chronic care clinic and that he could
purchase over-the-counter medication from the commissary,
further reducing the likelihood that Plaintiff would be
without any pain medication. Plaintiff's current
prescription expires on January 5, 2018, leaving Plaintiff
with ample time to take measures to prevent his prescription
from lapsing. Further, no medical professional has
recommended that Plaintiff receive physical therapy.”
Additionally, Plaintiff has not demonstrated a likelihood of
success on the merits. For claims of deliberate indifference,
an official “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”
Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765
(7th Cir. 2002). If an official reasonably responds to a
risk, even if harm was not averted, deliberate indifference
does not exist. Id.
The record establishes Plaintiff's serious medical needs
but contains minimal evidence that Defendants acted with
deliberate indifference. Plaintiff was scheduled for an
appointment each time he requested one, and Plaintiff's
prescription was renewed each time he saw a medical
professional with the authority to prescribe medication.
Although some appointments were cancelled, the record
suggests that the appointments were cancelled for legitimate
reasons and due to circumstances outside of the control of
Defendants. In sum, the undersigned is unable to conclude
that Plaintiff is reasonably likely to succeed on the merits
based on the current evidentiary record.
(Doc. 41, pg. 4-5).
the Court agrees with Magistrate Judge Daly's analysis in
the Report and finds that Thorton is not entitled to
injunctive relief, as he has not demonstrated that he will
suffer irreparable harm absent injunctive ...