United States District Court, S.D. Illinois
FIRAS M. AYOUBI, Plaintiff,
WEXFORD HEALTH SOURCES, INC, CHRISTINE BROWN, SCOTT THOMPSON, ALBERTO BUTALID, PERCY MEYERS, STEPHEN RITZ and ALISA DEARMOND, Defendants.
REPORT AND RECOMMENDATION
GILBERT C. SISON UNITED STATES MAGISTRATE JUDGE.
before the Court is Ayoubi's motion for preliminary
injunction (Docs. 2, 23, Exhibit A, 31, 56 and 97). Ayoubi
requests that Defendants be ordered to send him to an outside
specialist to diagnose and treat his condition. Defendants
oppose the motion (Docs. 18, 66 and Exhibits 1, 2). This
matter has been referred to United States Magistrate Judge
Gilbert C. Sison by United States Chief District Judge Nancy
J. Rosenstengel pursuant to 28 U.S.C. §§
636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b),
and Local Rule 72.1(a). Based on the following, the
undersigned RECOMMENDS that the Court
DENY the motion for preliminary injunction.
to 42 U.S.C. § 1983, pro se Plaintiff Firas M.
Ayoubi filed his complaint for deprivations of his
constitutional rights. After conducting the preliminary
review of Ayoubi's complaint pursuant to 28 U.S.C. §
1915A, the following claim survived:
Count 1: Eighth Amendment claim against Wexford, Brown,
Thompson, Dr. Butalid, Dr. Meyers, Dr. Ritz (substituted for
Unknown Party Dr. A) and (substituted for Unknown Party Dr.
B) and for exhibiting deliberate indifference to Ayoubi's
serious medical needs (worsening neurological symptoms
associated with pain).
the Court is Ayoubi's motion for preliminary injunction.
Ayoubi alleges he suffers from a “nervous tic”
which causes involuntary twitching and jerking, and places
him in “constant” pain and “severe
discomfort” (Doc. 1). Defendants oppose the motion. On
June 21, 2019, the Court held a hearing on the motions for
preliminary injunction, heard testimony from Dr. Butalid, Dr.
Meyers and Dr. Ritz and took the matter under advisement
preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
Accord Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008)(noting that “[a] preliminary
injunction is an extraordinary remedy never awarded as of
right”). To obtain a preliminary injunction, a
plaintiff must show (1) that he is likely to succeed on the
merits, (2) that he is likely to suffer irreparable harm
without the injunction, (3) that the harm he would suffer is
greater than the harm a preliminary injunction would inflict
on defendants, and (4) that the injunction is in the public
interest. See Judge v. Quinn, 612 F.3d 537, 546 (7th
Cir. 2010)(citing Winter, 555 U.S. at 20). The
“considerations are interdependent: the greater the
likelihood of success on the merits, the less net harm the
injunction must prevent in order for preliminary relief to be
warranted.” Judge, 612 F.3d at 546.
context of prisoner litigation, there are further
restrictions on a court's remedial power. The scope of a
court's authority to enter an injunction in the
corrections context is circumscribed by the Prison Litigation
Reform Act (“PLRA”). See Westefer v.
Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA,
preliminary injunction relief “must be narrowly drawn,
extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least
intrusive means necessary to correct that harm.” 18
U.S.C. § 3626(a)(2). See also Westefer, 682
F.3d at 683 (noting that the PLRA “enforces a point
repeatedly made by the Supreme Court in cases challenging
prison conditions: prison officials have broad administrative
and discretionary authority over the institutions they
manage”) (internal quotation marks and citation
Seventh Circuit has described injunctions like the one sought
here, where an injunction would require an affirmative act by
the defendant, as a mandatory preliminary
injunction. See Graham v. Medical Mutual of Ohio,
130 F.3d 293, 295 (7th Cir. 1997). Mandatory injunctions are
“cautiously viewed and sparingly issued, ”
because they require the court to command a defendant to take
a particular action. Id. See also W.A. Mack, Inc., v.
Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir.
1958)(stating that “[a] preliminary injunction does not
issue which gives to a plaintiff the actual advantage which
would be obtained in the final decree.”).
seeks a preliminary injunction in the form of a visit to an
outside specialist for a physical examination to diagnose the
nature of his involuntary movements. Ayoubi argues that
without an independent medical examination, he will suffer
irreparable harm due to the continued pain that he suffers
from the movements which he describes as continuous and
something along the lines of a “Charley Horse”
type of pain.
undersigned finds that Ayoubi has not met his burden of
demonstrating that he is entitled to a preliminary
injunction. Ayoubi seeks treatment by a neurologist for his
condition. The undersigned first notes that Ayoubi has not
provided the Court with verifiable evidence that his
condition presents a serious medical need requiring immediate
attention. The record contains diagnoses from various
doctors/Defendants who have seen Ayoubi and determined that
the movements are not neurological and one diagnosis from a
neurologist in Chicago, Illinois that has not seen Ayoubi
personally but feels that he should be seen by a
neurologist. While Ayoubi argues that he will suffer
irreparable harm as the involuntary movements cause him pain,
the undersigned notes that Ayoubi's symptoms have
persisted for nearly two and a half years while he has been
incarcerated, and he has not provided evidence that his
symptoms have escalated or that his health has deteriorated.
For example, Dr. Meyers testified that he personally observed
Ayoubi in the courtyard (after ...