United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT.
Orr, a prisoner without a lawyer, filed a motion asking for
preliminary injunctive relief to obtain adequate medical care
and treatment for his chronic left elbow pain and
numbness. ECF 10. After reviewing the motion, the
court ordered the Warden of the Westville Correctional
Facility in his official capacity to file and serve
a sworn statement explaining how Michael Orr was being
treated for the chronic pain and numbness in his left elbow.
ECF 16 and 19. The Warden filed a timely
response. Id. and ECF 21. Orr filed a reply
and a duplicate copy of his reply. ECF 41 and 42.
their briefs, both parties spend a great deal of time focused
on events which happened long ago. Though not irrelevant, the
question before the court today is whether Orr is currently
being denied constitutionally adequate medical care for his
left elbow as required by the Eighth Amendment. As explained
in the screening order, “if the court were to find that
Orr is not receiving medical treatment for his chronic left
elbow pain as required by the Eighth Amendment, the court
could only order that he be provided with medical treatment
which meets the requirements of the Eighth Amendment.”
ECF 14 at 6.
injured his left elbow in October 2017. Both Orr and the
Warden agree that Dr. Liaw last saw Orr on March 5, 2019. ECF
13-2 at 63-66 and ECF 21-2 at 1-4. At that visit, Orr was
referred to physical therapy. ECF 13-2 at 63-66 and ECF 21-2
at 1-4. However, despite that referral six months ago, there
is no indication in the hundreds of pages of medical records
created since then that Orr has seen a physical therapist
even once. Though the constitution did not require Orr be
seen by a physical therapist immediately, the Warden has
provided no explanation for how a six month delay qualifies
as constitutionally adequate medical care.
addition, Dr. Liaw prescribed over-the-counter pain
medication for Orr. The medical records are ambiguous as to
how long those were made available to Orr. What is not
ambiguous is that a nurse documented on June 11, 2019, that
Orr was not taking any medication. ECF 21-4 at 46-47. What is
not ambiguous is that on the most recent chart update
provided to the court, a nurse documented on July 20, 2019,
that Orr was not taking any pain medication. ECF 21-4 at 213.
also not ambiguous is that Orr has continued to complain of
pain. On May 2, 2019, a nurse documented Orr's report
that his “elbows burned as if they were on fire and
then they would go numb all night[, ] my elbows keep locking
and swelling[, and] pain and numbness now it's
worse.” ECF 21-3 at 1. On June 4, 2019, a nurse
documented Orr's report of “constant sharp pain in
my elbow.” ECF 21-4 at 1. On June 7, 2019, a nurse
documented Orr's report of “constant sharp pains in
my elbows.” ECF 21-4 at 23.
prescribed over-the-counter pain medication. He is not
receiving it. He continues to complain of ongoing pain in his
left elbow. He has not been re-evaluated by a physician in
six months. Again, the Warden has provided no explanation for
how this qualifies as constitutionally adequate medical care.
Therefore the preliminary injunction will be granted.
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).
To obtain a preliminary injunction, a plaintiff must first
show that: (1) without such relief, it will suffer
irreparable harm before final resolution of its claims; (2)
traditional legal remedies would be inadequate; and (3) it
has some likelihood of success on the merits. If a plaintiff
makes such a showing, the court next must weigh the harm the
plaintiff will suffer without an injunction against the harm
the defendant will suffer with one. This assessment is made
on a sliding scale: The more likely the plaintiff is to win,
the less heavily need the balance of harms weigh in his
favor; the less likely he is to win, the more need it weigh
in his favor. Finally, the court must ask whether the
preliminary injunction is in the public interest, which
entails taking into account any effects on non-parties.
Ultimately, the moving party bears the burden of showing that
a preliminary injunction is warranted.
Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068
(7th Cir. 2018) (citations and quotation marks omitted).
[t]he PLRA circumscribes the scope of the court's
authority to enter an injunction in the corrections context.
Where prison conditions are found to violate federal rights,
remedial injunctive relief must be narrowly drawn, extend no
further than necessary to correct the violation of the
Federal right, and use the least intrusive means necessary to
correct the violation of the Federal right. This section of
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.
Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012)
(quotation marks, brackets, and citations omitted).
uncontradicted evidence before the court at this time is that
Orr was prescribed over-the-counter pain medication and
physical therapy more than six months ago. He did not receive
physical therapy as ordered and has not received
over-the-counter pain medication in many months. Extensively
delayed physical therapy can cause irreparable harm. Ongoing
suffering caused by pain is an irreparable harm. Money can
compensate for past pain, but that alone is not a
justification for unnecessarily protracting current
suffering. As presented, Orr has some likelihood of success.
As for balancing harms, the Warden argues “[a]llowing
every inmate to petition the Court for specific medical care
simply because he/she disagrees with medical professionals
would create a dangerous precedent.” ECF 31 at 8.
However, that is not what is happening here. The court has
already explained that specific medical care is not within
the scope of the injunctive relief Orr can obtain in this
case. ECF 14 at 6. Moreover, the preliminary injunction is
not based on a disagreement with medical professionals. The
uncontradicted evidence before the court shows Orr is not
receiving the medical treatment he was prescribed by a
medical professional. Finally, the public interest weighs in
favor of granting a preliminary injunction in this case
because prisoners have a constitutional right to adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 104
could appear that ordering the originally prescribed physical
therapy and access to over-the-counter pain medication would
be the appropriate relief in this case. However, Orr has not
been re-evaluated by a physician in over six months despite
his ongoing complaints of pain. It is unclear whether either
physical therapy or over-the-counter pain medications are
appropriate medical treatments at this time. Therefore the
preliminary injunction will be granted only to the extent the
Warden in an ...