United States District Court, W.D. Kentucky, at Paducah
April 29, 2014
ANTOINE ROACH Plaintiff,
STEVE HILAND et al., Defendants.
MEMORANDUM AND ORDER
THOMAS B. RUSSELL, Senior Judge.
This matter is before the Court on two pending motions by pro se Plaintiff Antoine Roach, an inmate at the Kentucky State Penitentiary (KSP).
Motion to compel (DN 32)
Plaintiff filed a motion to compel discovery. He seeks an order compelling Defendant Steve Hiland "to produce all requested discovery and answer all questions asked under rule 30 and 31." He states that he requested Defendants to produce medical records for specific, identified dates but that Defendants never produced the requested records.
Defendants Steve Hiland and Chanin Hiland did not file a response to the motion but did file a notice stating that they served answers to Plaintiff's interrogatories. The notice, however, gives no indication that Defendants have provided any documents to Plaintiff. Nor have Defendants filed a certification that they have produced to Plaintiff all records or documentation which are relevant to the claims that survived initial review, which was required by the Court's Revised Scheduling Order (DN 31) to be completed by April 2, 2014. Therefore,
IT IS ORDERED that Defendants shall, within 21 days of the entry date of this Memorandum and Order, file a response to Plaintiff's motion to compel (DN 32) and state whether they have provided the documents requested by Plaintiff, as well as all records or documentation which are relevant to the claims that survived initial review in compliance with the Revised Scheduling Order. Plaintiff may file a reply within 14 days from service of Defendants' response.
Motion to receive medical care (DN 33)
Plaintiff also filed a motion seeking "to Receive proper Medical Treatment." He states that he was having flu-like symptoms and was suffering from coughing, severe migraines, blurred vision, runny nose, blood in his tissue after blowing his nose, and other symptoms. He also believed that his blood pressure was high. He saw non-Defendant "John Wood-NSA" in the medical department. Plaintiff states, "My brain is starting to drain again! From a previous surgery from a car wreck which also fractured my spine." He states that he explained this to Wood but Wood "kept downplaying the situation" and diagnosed him with sinusitis. Plaintiff then saw a nurse who also "downplayed the situation." The nurse gave Plaintiff "a physical and found out my entire face and the left side of my head was swollen" and told him his heart was "pesky' whatever that's suppose to mean." Plaintiff was prescribed "Amoxicillin 875 mg/Clavulcanic Acid 125 mg" but reports that "since taking these pills I've gotten worse." He states that he is in pain and that "they only prescribed me this medicine just to have something to say in this lawsuit. But it's no good because the dates that they said that they treated me, they didn't and they have no proof!" He further states, "I need your help getting to another prison where they will treat me with the care I need."
Plaintiff's motion also describes a dispute with non-Defendant Ms. Malinda, who is an employee of Aramark and Plaintiff's supervisor in his prison job in the KSP kitchen. Plaintiff states that Ms. Malinda required him to work even though he informed her that he was ill. Plaintiff also complains that he was not given gloves, a face mask, or protective eye wear while working in the kitchen. He states that he also was "disrespected and cursed at by Tim White, " Ms. Malinda's manager, also not a Defendant.
First, to the extent Plaintiff seeks to allege facts in this lawsuit that are not contained in his complaint or to add Defendants who are not named, he must file a motion to supplement and/or amend the complaint. Should he wish to do so, IT IS ORDERED that Plaintiff must file such motion and a proposed supplemental/amended complaint on a Court-supplied § 1983 form no later than 30 days from the entry date of this Order. The Clerk of Court is DIRECTED to write the instant case number on a § 1983 form and send it to Plaintiff along with a motion form.
Next, to the extent Plaintiff may be seeking immediate relief in the form of a temporary restraining order (TRO) requiring him to be transferred or to receive certain medical treatment, a court may issue a TRO without written or oral notice to the adverse party or its attorney only if:
specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1)(A), (B). Plaintiff states in the motion that he was seen by at least two medical personnel, was given a physical, and was prescribed medication. While he disagrees that this is the proper course of action, "[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Mere disagreement over medical treatment cannot give rise to a constitutional claim of deliberate indifference. Durham v. Nu'Man, 97 F.3d 862, 869 (6th Cir. 1996). For these reasons, IT IS ORDERED that a request for a TRO (DN 33) is DENIED.
To the extent that Plaintiff seeks preliminary injunctive relief, Plaintiff must first file a motion for a preliminary injunction providing more facts detailing how he believes he is entitled to relief. The Clerk of Court is DIRECTED to send Plaintiff a motion form for his use should he desire to file such a motion.