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Leiser v. Hannula

United States District Court, W.D. Wisconsin

February 27, 2017

JEFFREY D. LEISER, Plaintiff,
v.
DR. JOAN HANNULA, et al., Defendants.

          OPINION & ORDER

          STEPHEN L. CROCKER Magistrate Judge

         On August 11, 2016, I denied pro se plaintiff Jeffrey Leiser's motion for a preliminary injunction. Plaintiff's claims in this case concern defendants' alleged failure to treat his spinal and testicle pain while he was housed at Stanley Correctional Institution. Leiser had requested an emergency order requiring the Wisconsin Department of Corrections to bring him to the University of Wisconsin-Madison hospital to be evaluated by a neurosurgeon. I denied his motion because Leiser had failed to show he was entitled to the relief he sought. (Dkt. 40.) Plaintiff has since filed a Motion for Reconsideration (dkt. 41), a Renewed Motion for Injunctive Relief (dkt. 54), and a Supplemental Renewed Motion for Injunctive Relief (dkt. 55). The Renewed Motion and Supplemental Renewed Motion ask the court to enter an order requiring Leiser to receive narcotics and/or Tramadol to control his pain. After reviewing the parties' submissions, I concluded that there are no material facts in dispute that would warrant a hearing. Leiser still has not submitted any evidence suggesting that he is entitled to the extraordinary relief he seeks. Therefore, I am denying his motions.

         Motion for Reconsideration (dkt. 41)

         Leiser filed his Motion for Reconsideration of my order denying his request to see a neurosurgeon on August 26, 2016. In his subsequent filings, he stated that he had an appointment with a neurosurgeon on December 20, 2016. (Dkt. 54, at 2-3.) The records Leiser and the defendants submitted confirm that Leiser was seen by Dr. Jerry Davis, a neurosurgeon at Gunderson Health System, on December 20, 2016. (Conlin Decl., Ex. A, dkt. 58-1, at 3.) He recommended surgery, but told Leiser that he could not perform it until Leiser was able to achieve a body weight between 225 and 230 pounds. (Id. at 3.) As Leiser received the relief he was seeking in his initial motion for preliminary injunction, I will deny it as moot.

         Renewed Motion and Supplemental Motion (dkts. 54, 55)

         As was the case in his prior motion, the relief Leiser seeks is rarely granted. “To obtain a preliminary injunction, the moving party must show that its case has ‘some likelihood of success on the merits' and that it has ‘no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied.'” Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012) (quoting Ezell v. City of Chi., 651 F.3d 684, 694 (7th Cir. 2011)). To grant a preliminary injunction under the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA) a court must find that such relief is: (1) narrowly drawn; (2) extends no further than necessary to correct the violation of the Federal right; and (3) is the least intrusive means necessary to correct the violation of the Federal right. 18 U.S.C. § 3626(a)(1).

         Leiser requests an order requiring the staff at the New Lisbon Correctional Institution (“NLCI”) to provide narcotics or Tramadol because his current pain management regiment of Tylenol, ibuprofen, and icing is so insufficient that he cannot lose the weight necessary for him to undergo surgery. Leiser submitted records of his treatment at NLCI in support, but there are three reasons why nothing before me suggests that a preliminary injunction is appropriate.

         First, Leiser's current request does not involve his claims against any of the named defendants. I granted Leiser leave to proceed against individuals that were involved in his care while he was housed at the Stanley Correctional Institution. Leiser has not sought leave to amend his complaint to name additional defendants and he explicitly stated that he does not want “to make the current NLCI HSU staff part of this civil suit” (dkt. 55, at 4). Given that the PLRA permits me to only order injunctions that are narrowly tailored to correct the constitutional violation in this lawsuit, his request is outside the perimeters of my authority.

         Second, Leiser has an adequate remedy at law. If he believes that he has a § 1983 claim against the individuals that have treated him at NLCI, he may seek relief within the DOC's grievance system. Then, once he has exhausted his administrative remedies within the DOC, if he is still dissatisfied, he may file a separate lawsuit against the other defendants.

         Third, even if Leiser's allegations implicated one of the defendants to this lawsuit, he has not submitted any evidence suggesting that his claims are likely to succeed on the merits. As noted, Leiser has been granted leave to proceed on deliberate indifference and state law negligence claims. “Deliberate indifference” means that the officials are aware that the prisoner needs medical treatment, but are disregarding the risk by consciously failing to take reasonable measures. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).

         The parties submitted Leiser's treatment records between November and December of 2016. While, Leiser has not authenticated the records he submitted, I have taken them into account for purposes of determining whether his motion had any merit to the point where a hearing would be necessary. Here is a summary of them:

• November 25, 2016: Leiser submitted a health services request (“HSR”) form complaining of nerve pain and stating that ibuprofen and muscle rub does not help. The response note dated November 26, indicates that a nurse reviewed it and scheduled him to be seen by HSU.
• November 27, 2016: Leiser submitted another HSR requesting to be seen. The November 27 response note indicates that he was scheduled to be seen.
• November 30, 2016: Leiser submitted an HSR and letter to the HSU manager complaining of the same symptoms. A December 1 response note states that he was ...

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