United States District Court, E.D. Wisconsin
ANDREW T. WHITCOMB, Plaintiff,
DR. JEFFREY MANLOVE, et al., Defendants.
ORDER ADOPTING MAGISTRATE JUDGE DUFFIN'S
RECOMMENDATION (DKT. NO. 38), DENYING PLAINTIFF'S MOTION
FOR PRELIMINARY INJUNCTION (DKT. NO. 21), DENYING
PLAINTIFF'S MOTION TO PRODUCE DOCUMENTS (DKT. NO. 40) AND
EXTENDING DEADLINE FOR COMPLETING DISCOVERY
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
Andrew T. Whitcomb has alleged that the defendants were
deliberately indifferent to his injured knee. Dkt. No. 25 at
2-5. On January 14, 2019, the court referred his case to U.S.
Magistrate Judge William Duffin to handle pretrial matters.
Dkt. No. 26. Before the court had issued its order allowing
the plaintiff to proceed on his Eighth Amendment claims, he
had filed filed a motion for a preliminary injunction, asking
the court to issue an order to address “the all around
lack of proper medical care” he claimed he was
experiencing in prison. Dkt. No. 21. Judge Duffin reviewed
the motion, the defendants' response, and the
plaintiff's reply, and recommended that this court deny
the motion. Dkt. No. 38. Neither party objected to the report
28 U.S.C. §636(b)(1)(A), magistrate judges may not issue
final decisions on motions for preliminary injunctions.
Instead, they must issue their findings as recommendations to
the district court. 28 U.S.C. §636(b)(1)(C). The
district court must conduct a de novo review of any
part of the recommendation to which a party objects.
Fed.R.Civ.P. 72(b)93). If no party objects, the court reviews
the magistrate judge's recommendation for clear error.
Fed.R.Civ.P. 72(a); Johnson v. Zema Systems Corp.,
170 F.3d 734, 739 (7th Cir. 1999). The court reviews Judge
Duffin's report for clear error.
motion, the plaintiff claimed that the defendants had
continued to delay in providing him medical treatment,
refused to provide him with proper and adequate pain
medication and had taken away his wheelchair; he alleged an
“all around lack of proper medical care” for pain
that had lasted almost ten months and was on-going. Dkt. No.
21. He alleged that the defendants had not gotten him to see
a specialist. Id. He asserted that by the time the
court received the motion, “it will still be going on,
” and asked the court to stop the defendants from
denying him proper care and delaying his treatment.
Id. The plaintiff provided more details of what had
gone on with his treatment between December 2018 and January
2, 2019. Dkt. No. 22. He also provided an affidavit from
another inmate, describing the events surrounding the
plaintiff's knee injury. Dkt. No. 24.
defendants provided evidence (a sworn declaration from
defendant Dr. Jeffrey Manlove) that as of February 4, 2019,
the plaintiff received medical care from prison staff and
outside health care providers on more than fifty occasions
since March 2018. Dkt. No. 32 at ¶13. The plaintiff
filed a responsive declaration, confirming much of what Dr.
Manlove had said, but disputing the kind of treatment Manlove
is giving him and the speed with which he receives it. Dkt.
obtain preliminary injunctive relief, whether through an
injunction or a temporary restraining order, a plaintiff must
show that (1) his underlying case has a reasonable likelihood
of success on the merits, (2) he has no adequate remedy at
law and (3) he will suffer irreparable harm without the
injunction. Wood v. Buss, 496 F.3d 620, 622 (7th
Cir. 2007). As Judge Duffin noted in his report, a
preliminary injunction is an “extraordinary” form
of relief “that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”
Dkt. No. 38 (quoting Winter v. Natural Res. Def.
Council, 555 U.S. 7, 22 (2008)). Under the Prison
Litigation Reform Act, if a court grants injunctive relief,
that 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 the harm.” Id. (quoting
28 U.S.C. §3626(a)(1)(A)).
Duffin found that the plaintiff had not shown that he has a
reasonable likelihood of success on the merits of his Eighth
Amendment claim. Id. at 3-4. Judge Duffin noted that
it takes more than a plaintiff's disagreement with a
doctor's judgment to prove that a doctor is deliberately
indifferent to a plaintiff's serious medical need.
Id. at 3. The court agrees with Judge Duffin that in
order to succeed on his deliberate indifference claim, the
plaintiff will need to show more than the fact that he
disagrees with the medical judgments Manlove and other
defendants have made. But more to the point, this court finds
that the plaintiff has not demonstrated that he will suffer
irreparable harm if the court does not grant his request for
injunctive relief. The plaintiff agrees that he has been
receiving treatment. The defendants have not been ignoring
him. Dr. Manlove attested that he has offered the plaintiff
pain medications other than the Tylenol he receives; he
opines that non-steroidal anti-inflammatories would give the
plaintiff better relief, but that the plaintiff refuses to
take them because he is worried that they will cause GI
bleeding. Dkt. No. 32 at ¶¶9-12. Manlove indicates
that the plaintiff is at increased risk for such bleeding,
but not because of the medication; his increased risk is due
to his “propensity for swallowing foreign objects (pen
ink cartridges, razors, etc.).” Id. at
¶12. Manlove also reports that the plaintiff is housed
in the Restrictive Housing Unit-he gets his meals in his
cell, and has a wheelchair restriction if he needs to go
further than 100 feet, and he has a knee brace for minimal
walking (although Manlove points out that he has witnessed
the plaintiff “foregoing” the use of the knee
brace). Id. at ¶15-16. While the plaintiff
asserts that his leg is going to be “permanently messed
up forever and if it gets any worse the possibility that it
may be so messed up as to be irreparable is better and better
with time, ” dkt. no. 22 at 2, Manlove says that the
plaintiff had an orthopedics consult as recently as January
10, 2019, dkt. no. 32 at ¶17. That appointment resulted
in a recommendation that the plaintiff have an updated MRI,
wear his knee brace and engage in no high-impact activity.
Duffin did not commit clear error in concluding that the
plaintiff had not met the requirements for issuance of a
preliminary injunction, and the court will adopt his
recommendation and deny the motion.
March 21, 2019, Judge Duffin issued a scheduling order. Dkt.
No. 39. The order required the parties to complete discovery
by July 30, 2019. Id. at 1. On April 29, 2019, the
plaintiff filed a “Motion to Produce Documents.”
Dkt. No. 40. It contains a list of items the plaintiff says
that he needs to start his discovery: written health service
requests, doctors' or nurses' notes, medical records,
hospital records and other information. The defendants
respond that the plaintiff hasn't served these requests
on the defendants, as required by Judge Duffin's
scheduling order and the Federal Rules of Civil Procedure.
Dkt. No. 42.
court will deny the motion to produce documents. Judge
Duffin's April 2, 2019 scheduling order stated that
“parties must serve discovery requests and
responses-depositions, interrogatories, requests for
documents or tangible things, and requests for
admission-on the opposing party, and must not file them
with the court unless and until a party wishes to use
them to support a motion or other pleading . . . .”
Dkt. No. 39 at 2. (Emphasis added.) The order went on to say,
“The plaintiff must mail these discovery requests and
responses directly to counsel for the defendant(s).”
Id. at 3. The plaintiff appears to have ignored this
part of Judge Duffin's order and filed his discovery
request with the court.
court will extend the discovery deadline, so that the
plaintiff can do what the court told him to do in the first
place-send his discovery requests to the lawyer for the
defendants. He should send his requests to Assistant Attorney
General Katherine D. Spitz, Wisconsin Department of Justice,
P.O. Box 7857, Madison, WI 53707-7857. The court also
encourages the plaintiff to provide the defendant's
attorney with a timeframe for the records he is requesting;
from his complaint, it would appear that he likely is looking
for his medical records for the period November 10, 2015
through the date he filed his complaint, July 29, 2016.
court ADOPTS Judge Duffin's
recommendation that the court deny the plaintiffs motion for
a preliminary injunction. Dkt. No. 38.
court DENIES the plaintiffs motion for a
preliminary injunction. Dkt. No. 21.
court DENIES the plaintiffs motion to