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Ayoubi v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

July 19, 2019

FIRAS M. AYOUBI, Plaintiff,
v.
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.

         Introduction

         Now 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.

         Background

         Pursuant 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).[1]

         Before 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 (Doc. 96).[2]

         Legal Standards

         A 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.

         In the 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 omitted).

         The 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.”).

         Analysis

         Ayoubi 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.

         The 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 ...


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