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Lavitee v. Lakin

United States District Court, S.D. Illinois

January 19, 2018

GARY LAVITE, Plaintiff,
v.
JOHN LAKIN, JAY SANDIDGE, RANDY YOUNG, OFFICER PATTERSON, OFFICER BLAKEY, SGT. CRAIG, and JOHN DOE NURSE, Defendants.

          REPORT AND RECOMMENDATION

          DONALD G. WILKERSON UNITED STATES MAGISTRATE JUDGE.

         This 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.

         Findings of Fact

         Plaintiff 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.

         The 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.

         A 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).

         Conclusions of Law

         A 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 ...

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