United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
G. WILKERSON UNITED STATES MAGISTRATE JUDGE.
matter has been referred to United States Magistrate Judge
Donald G. Wilkerson by United States District Judge J. Phil
Gilbert, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal
Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a
Report and Recommendation on a Motion for Preliminary
Injunction filed by Plaintiff Gary Lavite (Doc. 1). For the
reasons set forth below, it is RECOMMENDED
that the motion been found moot and that the Court adopt the
following findings of fact and conclusions of law.
filed a motion for a preliminary injunction on November 22,
2017 (Doc. 1). On November 28, 2017, the Court instructed
Plaintiff that it was inappropriate to initiate an action
without a complaint, and directed Plaintiff to file a
complaint no later than December 27, 2017. (Doc. 3).
Plaintiff submitted the Complaint on December 5, 2017, and it
was reviewed pursuant 28 U.S.C. § 1915A. The following
claims survived threshold review:
Count 1 - Nurse John Doe and Randy Young
were deliberately indifferent to Plaintiff's serious
medical needs in violation of the Fourteenth Amendment;
Count 2 - Young retaliated against Plaintiff
for filing a grievance by sending him to segregation in
violation of the First Amendment;
Count 3 - Plaintiff was subjected to
unconstitutional conditions of confinement in segregation in
violation of the Fourteenth Amendment by Young, Patterson,
Blakey, and Craig;
Count 4 - Sardage, Sandidge Patterson,
Blakey, and Craig denied Plaintiff adequate nutrition in
violation of the Fourteenth Amendment.
District Court referred Lavite's Motion for Preliminary
Injunction to Magistrate Judge Donald G. Wilkerson (Doc. 7).
The motion and documents submitted show Lavite went to the
Emergency Room two times due to a head injury. At the
original visit on 4/24/17 (Doc. 5) the hospital did a CT of
his head which showed a left frontal skull fracture (Doc. 17,
p. 6). He was transferred to Barnes but left against medical
advice (Doc. 17, p. 6). Lavite returned to the ER in May,
2017 complaining of headache, dizziness, loss of balance,
forgetfulness, mood changes and ringing in his hears, among
other symptoms (Doc. 17, p. 6). A neurologist saw him on July
11, 2017 and diagnosed him as having suffered a brain
concussion and recommended a follow up visit in three months
(Doc. 17, p. 7). Plaintiff was incarcerated before that three
month period had run (See Doc. 5, p. 5). He filed a
grievance regarding the jail's refusal to transport him
to Barnes Jewish Hospital for a follow up visit, which was
denied in writing (Doc. 17, p. 6). Plaintiff alleges he
continues to suffer symptoms of dizziness, drooling, and
vision problems due to the head injury and wants this Court
to order he receive follow-up medical care.
hearing was held on the Motion for Preliminary Injunction on
January 5, 2018. Counsel for Defendants informed the Court at
the hearing that the jail would transport Lavite to the
Neurologist of his choosing. The Court Ordered Defendants to
provide written notice to the Court by January 16, 2017
indicating whether an appointment had been scheduled for
Plaintiff to see his Neurologist (Doc. 30). On January 16,
2018, Defendants filed a Notice informing the Court that an
appointment had been made for Plaintiff with a Neurologist on
January 23, 2018 at 9:30 a.m. (Doc. 31). Plaintiff, however,
was released from the custody of Madison County Jail prior to
his appointment date (Doc. 31).
preliminary injunction is an “extraordinary and drastic
remedy” for which there must be a “clear
showing” that Plaintiff is entitled to relief.
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(quoting 11A Charles Alan Wright, Arthur R. Miller, &
Mary Kay Kane, Federal Practice and Procedure §2948 (5th
ed. 1995)). The purpose of such an injunction is “to
minimize the hardship to the parties pending the ultimate
resolution of the lawsuit.” Faheem-El v.
Klincar, 841 F.2d 712, 717 (7th Cir. 1988). Plaintiff
has the burden of demonstrating:
1. a reasonable likelihood of success on the ...