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David Michael Glatts v. Superintendent Lockett; Mr. Matthews (Aod Director

January 10, 2011

DAVID MICHAEL GLATTS, PLAINTIFF
v.
SUPERINTENDENT LOCKETT; MR. MATTHEWS (AOD DIRECTOR);
DR. CAIRINS, DIRECTOR OF PSYCHOLOGY DEPARTMENT;
MS. KWISNEK (ADAFACILITATOR DIRECTOR);
DEPUTY SUPERINTENDENT TREVOR WINGARD;
DR. MCGRAFF (MEDICAL DIRECTOR);
PRISON HEALTH SYSTEMS ) (PHS),
MS. PRICE, TC PROGRAM DIRECTOR; MR. SECKERS, DEPUTY SCI-GREENSBURG; JEFFREY BEARD, PH.D., SECRETARY OF DOC;
MR. ALAN FOGEL, DIRECTOR, BUREAU OF HEALTH CARE, PA. DOC; INMATE DIS-ABILITY COMMITTEE, PA. DOC; BUREAU OF TREATMENT SERVICE, PA. DOC; AND
MR. RAYMOND SOBINA, DEFENDANTS



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

Re ECF No. 78

MEMORANDUM OPINION AND ORDER

Because State prisoner, David Michael Glatts ("Plaintiff") has failed to carry his burden concerning any of the four prongs of the test for meriting a preliminary injunction, the Court will deny his motion for a preliminary injunction.

Relevant Procedural History

Plaintiff initiated this civil rights suit pursuant to 42 U.S.C. § 1983 on January 12, 2009, complaining of conditions at SCI-Greensburg, where Plaintiff is housed. The original complaint named seven defendants. Five of the defendants appear to be employees of the Pennsylvania Department of Corrections ("DOC"), collectively, the "DOC defendants". The other two defendants, named in the original complaint, are Dr. McGraff, an independent contractor-physician at SCI-Greensburg, who treated Plaintiff, and Prison Health Services, Inc. ("PHS"), collectively, "the Medical Defendants". PHS is the independent contractor that DOC contracted with to provide medical services at SCI-Greensburg. The original complaint essentially alleged a statutory cause of action, complaining that Plaintiff has two disabilities, i.e., major depression and neuropathy in both lower legs and that the Defendants' allegedly failed to accommodate and/or treat Plaintiff's disabilities which, he contends, violated his ADA rights. Plaintiff contended in his complaint that he was terminated from a program known as AOD, ("Alcohol and Other Drug" treatment program). Plaintiff contended that he believes he was entitled to changes in the AOD program that better suited his disabilities. ECF No. 4 at 2, ¶ IV. In response to the question asked, what federal law do you claim was violated, Plaintiff asserted Title II of the Americans With Disabilities Act ("ADA"). Id., at 2, ¶ III.

More recently, he filed an amended complaint, ECF No. 59, that added seven new defendants, namely, 1) Ms. Prices, the Therapeutic Community Director; 2) Mr. Seckers, Deputy Superintendent; 3) Jeffrey Beard, former DOC Secretary; 4) Alan Fogel, Director of the Bureau of Health Care Services; 5) the Inmate Disability Committee; 6) the Bureau of Treatment Service; and 7) Raymond Sobina, Deputy DOC Secretary for the Western Division. Plaintiff added Eighth Amendment claims of deliberate indifference for allegedly failing to adequately treat his back post surgery and to adequately treat his neurological problems with his legs and his walking.

Plaintiff has also now filed another motion for preliminary injunction. ECF No. 78.*fn1 By this motion for preliminary injunction, Plaintiff indicates that he seeks 1) an immediate consultation with a neurologist for compression of the nerves in his lumbar spine; 2) immediate entrance into the AOD and/or TC programming, and 3) immediate epidural steroid injections into his lumbar spine in order to address his pain. ECF No. 85 at 1 to 2.

The Medical Defendants filed their response, ECF No. 81 and a brief in opposition. ECF No. 82. The DOC Defendants filed their response, ECF No. 83, and more recently a supplemental response which included, inter alia, Plaintiff's medical records and medical documentation up to November 30, 2010. ECF No. 84-1 at 1 to 62. Plaintiff filed a reply to the DOC's response, ECF No. 84, and also a supplemental reply. ECF No. 87.

Applicable Legal Standards

In determining whether a preliminary injunction ("PI") is warranted, a court must consider: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed 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. Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). More specifically, with regards to the fourth prong, one seeking a PI must show that the issuance of the injunctive relief will not be adverse to the public interest. Dominion Video Satellite, Inc. v. Echostar Corp., 269 F.3d 1149, 1154 (10th Cir. 2001). It "frequently is observed that 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)(emphasis deleted). Further, the Court is to bear constantly in mind that an "[i]njunction is an equitable remedy which should not be lightly indulged in, but used sparingly and only in a clear and plain case." Plain Dealer Publishing Co. v. Cleveland Type. Union # 53, 520 F.2d 1220, 1230 (6th Cir. 1975). As a corollary of this principle that preliminary injunctions should issue only in a clear and plain case, our Third Circuit Court of Appeals has observed that "upon an application for a preliminary injunction to doubt is to deny." Madison Square Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937). See also McCullough v. Miller, NO. CIV. A. 06-514, 2007 WL 4191974, at *1 (W.D.Pa. Nov. 21, 2007) (same); Spirol Int'l Corp. v. Vogelsang Corp., 652 F.Supp. 160, 161 (D.N.J. 1986)(same). Moreover, it is plaintiff's burden to show that the "preliminary injunction must be the only way of protecting the plaintiff from harm." See Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992). With respect to the "irreparable harm" prong of proving entitlement to a PI, the Court of Appeals for the Third Circuit has emphasized that the "key aspect of this prerequisite is proof that the feared injury is irreparable; mere injury, even if serious or substantial, is not sufficient." United States v. Commonwealth of Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976). Additionally, in carrying his burden to show irreparable harm, a "plaintiff must make a clear showing that irreparable harm will occur immediately. See ECRI v. McGraw- Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). For "a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm." Campbell Soup, 977 F.2d at 91 (internal quotations omitted). Indeed, the Court of Appeals for the Third Circuit "insisted that the risk of irreparable harm must not be speculative." Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000).

Discussion

A. Likely Success on the Merits

The court has carefully reviewed the amended complaint and applicable law and finds that Plaintiff has failed to establish a reasonable probability of success on the merits as to his claims. The medical records reveal Plaintiff's extensive treatment at the hands of the Defendants. With respect to the Eighth Amendment claim as to the DOC Defendants, in light of the extensiveness of the treatment provided, there is no reason for these DOC defendants, none of whom are medical doctors to know that Plaintiff was being denied treatment. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) ("The only allegation against either of these two [prison official] defendants was that they failed to respond to letters Durmer sent to them explaining his predicament. Neither of these defendants, however, is a physician, and neither can be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.") (footnoted omitted); Thomas v. Zinkel, 155 F.Supp.2d 408, 413 (E.D. Pa. 2001) ("Prison authorities who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor. Similarly, health care administrators cannot be found deliberately indifferent when an inmate is receiving care from a doctor.")(internal citations and quotations omitted).

The Court of Appeals did explain the above general Durmer rule is not an absolute rule. In Spruill, the Court held that absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official like Gooler will not be ...


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