The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is Magistrate Judge J. Andrew Smyser's Report and Recommendation (Doc. 32), and Plaintiff's Objection to the Magistrate's Report and Recommendation (Doc. 37). Magistrate Judge Smyser recommends that the Court deny Plaintiff's request for a temporary restraining order ("TRO"). For the reasons set forth below, the Court will adopt the Report and Recommendation, and the case will be recommitted to Magistrate Judge Smyser for further pre-trial proceedings.
Magistrate Judge Smyser's Report and Recommendation contains a full and complete recitation of the facts concerning the instant matter. (Doc. 32) Consequently, the Court will briefly set forth those facts salient to the resolution of Plaintiff's objection to the Report and Recommendation. On April 18, 2005, Plaintiff filed a TRO requesting that Defendants refer him to an ear, nose and throat ("ENT") specialist and that Defendant Newfield be restrained from processing any of Plaintiff's sick call slips. (Doc. 10.) On June 2, 2005, Plaintiff added that Defendant Young also be restrained from processing his sick call slips. (Doc. 21.) In his Amended Complaint, among others, Plaintiff claims that Defendants have violated his Eighth Amendment right. (Doc. 13 at ¶ 30.)
Magistrate Judge Smyser recommends that Plaintiff's request for a TRO be denied. According to the Magistrate Judge, Plaintiff has failed to submit evidence sufficient enough for the court to reasonably conclude that Defendants are deliberately indifferent to the Plaintiff's medical needs or that they are motivated by non-medical factors. (Doc.32-1 at 20.) Thus, Magistrate Judge opines that Plaintiff does not have a reasonable probability of success on the merits of his claim. (Id.)
Plaintiff filed a timely objection. In his objection, Plaintiff asks the Court to reconsider Magistrate Judge Smyser's recommendation because he argues that he has alleged allegations that he has a reasonable chance of success. (Doc.38.) He submitted three additional declarations stating that he could not find blood results in his medical records (Doc.42) and that his requests to see a doctor other than Defendant Young were denied (Docs.43, 47). The matter is fully briefed and now ripe for disposition.
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
Plaintiff states that, among a number of other illnesses, he suffers from symptoms indicative of aneurysm. (Doc. 11 at 1.) Plaintiff alleges that from March 11, 2005 to the date he filed his motion for a TRO, he has been denied a doctor. (Id.) Plaintiff has since submitted additional declarations stating that he is still sick. (Docs. 21, 22, 42, 43, 47.) In his request for a TRO, Plaintiff asks the Court to order the Defendants to refer him to an ENT specialist and that Defendants Newfield and Young both be restrained from processing any of Plaintiff's sick call slips.
Magistrate Judge Smyser recommends that the TRO not be granted as Plaintiff has failed to demonstrate that the Defendants acted with deliberate indifference to his medical needs. The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. Crissman v. Dover Downs Entm't Inc., 239 F.3d 357, 364 (3d Cir. 2001).
The standard for a temporary restraining order is essentially the same. Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994). Magistrate Judge Smyser determined that Plaintiff did not show a probability of success on the merits necessary to grant a TRO. Plaintiff objects to that portion of the Magistrate Judge's Report. I agree with Magistrate Judge Smyser's reasoning, and will adopt it now.
In order for Plaintiff to establish an Eighth Amendment medical claim, he must establish that the Defendants acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). Medical malpractice does not rise to the level of constitutional violation under the Eighth Amendment. White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1980). Only "unnecessary and wanton infliction of pain" or a "deliberate indifference to the serious medical needs" of prisoners are "sufficiently egregious to rise to the level of a constitutional violation." Id. (quoting Estelle,429 U.S. at 103.)
The Third Circuit Court of Appeals has found "deliberate indifference" in instances where the prison official "(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse v. ...