United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
Bigby, proceeding pro se and in forma
pauperis, has filed this 42 U.S.C. § 1983 case
alleging that he has not been provided with adequate medical
care during his incarceration at Coastal State Prison.
See doc. 11 at 2-3. In addition to monetary relief,
he seeks an “emergency preliminary injunction.”
Id. at 3. The Court screened his Complaint pursuant
to 28 U.S.C. § 1915A, and approved service on two
defendants. Id. at 6. The defendants waived personal
service, docs. 16 & 18, and jointly answered the
Complaint, doc. 22. Responding specifically to
plaintiff's request for a preliminary injunction,
defendants assert that “[t]he requested injunctive
relief is not authorized under 18 U.S.C. § 3626, the
Prison Litigation Reform Act.” Doc. 22 at 2.
statute defendants cite, authorizes preliminary injunctive
relief in the prison context, “to the extent otherwise
authorized by law, ” but requires that it 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.” 18 U.S.C. § 3626(a)(2). Generally, “a
preliminary injunction is appropriate where the movant
demonstrates that: (a) there is a substantial likelihood of
success on the merits; (b) the [temporary restraining order
(TRO)] or preliminary injunction is necessary to prevent
irreparable injury; (c) the threatened injury outweighs the
harm that a TRO or preliminary injunction would cause to the
non-movant; and (d) the TRO or preliminary injunction would
not be averse to the public interest.” Parker v.
State Bd. of Pardons & Paroles, 275 F.3d 1032,
1034-35 (11th Cir. 2001) (citing Zardui-Quintana v.
Richard, 768 F.2d 1213, 1216 (11th Cir. 1985)).
“The preliminary injunction is an extraordinary and
drastic remedy not to be granted unless the movant clearly
carries the burden of persuasion as to the four
prerequisites.” Zardui-Quintana, 768 F.2d at
1216 (quotes and cites omitted); see also University of
Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The
purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits
can be held.”).
does not identify an irreparable harm he will suffer without
such relief and, as such, is not entitled to a preliminary
injunction. To be clear, the Court does not suggest that
plaintiff will not suffer harm. However, entitlement to a
preliminary injunction requires more than identification of
an injury. It requires an injury that is not compensable by
any remedy at law, including monetary relief. See Cate v.
Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) “An
injury is ‘irreparable' only if it cannot be undone
through monetary remedies.” (cite omitted)).
plaintiff's Complaint, doc. 1, nor his motion for a
preliminary injunction, doc. 3, identify any
“irreparable” harm. His Complaint states that
nerve damage from a pre-incarceration gunshot wound causes
“serious nerve damage pain” during the ordinary
activities of life. Doc. 1 at 6. His motion for a preliminary
injunction identifies his injury as “the unnecessary,
wanton infliction of pain, and extreme emotional and mental
distress and anguish.” Doc. 3 at 2. It also explains
that he “is unable to sleep, move around, shower and
use[ ] the toilet without being in serious pain, and only
[able] to sleep a few hours before being awaken[ed] by the
pain.” Id. at 4. To be sure, as plaintiff
states, he has alleged “serious” harm.
Id. at 5. “Serious, ” however, is not
the same as “irreparable.”
there is some disagreement among the Courts of Appeals
outside of this Circuit,  this Court has held that claims of
ongoing pain, without more, do not constitute sufficient
allegation of irreparable injury to obtain a preliminary
injunction. See Paz v. Stone, 2014 WL 4776136 at * 2
(S.D. Ga. Sept. 15, 2014) (“Here, Plaintiff asserts he
is in pain but does not allege he will suffer irreparable
injury if the injunction is not granted.”);
Espinoza v. Stone, 2014 WL 69510 at * 2 (S.D. Ga.
Jan. 8, 2014) (“Here, Plaintiff claims only that he
should receive stronger pain medication and that ‘more
harm will be done to [him]' if the injunction is not
granted ([cit.]). However, he does not identify any
irreparable injury . . . that he is likely to sustain if the
injunction is not granted.” (citations omitted)).
that a preliminary injunction is a drastic remedy,
plaintiff's heightened burden, and the ambiguous
allegation of irreparable injury, plaintiff's motion for
a preliminary injunction should be DENIED.
Doc. 3. This Report and Recommendation (R&R) is submitted
to the district judge assigned to this action, pursuant to 28
U.S.C. § 636(b)(1)(B) and this Court's Local Rule
72.3. Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendation.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonette v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 The case that plaintiff cites in his
discussion of the “irreparable injury
requirement” for a preliminary injunction does not
apply to the alleged facts of this case. He cites
Cunningham v. Adams, 808 F.2d 815 (11th Cir. 1987).
Doc. 3 at 5-6. The alleged injury in Cunningham was
the loss of a government contract, and its anticipated
profits. Cunningham, 808 F.2d at 822. The completely
different factual context of Cunningham makes its
value here limited, to say the least.
Compare Wheeler v. Wexford Health
Sources, Inc., 689 F.3d 680, 682 (7th Cir. 2012)
(Easterbrook, J.) (“To the extent the [district] judge
may have believed that pain never constitutes
irreparable injury, however, he was mistaken.”
(emphasis in original)); with Tuttamore v. Lappin,
429 Fed.Appx. 687, 692 (10th Cir. 2011) (allegations of pain,
in the context of showing that denial of further treatment
was based on physician's professional judgment, were not
sufficient, given “heightened burden, ” to
establish irreparable injury justifying preliminary relief).
Even Wheeler, however, only recognized the
sufficiency of pain allegations hypothetically. See
Wheeler, 689 F.3d at 682-83 (remanding prisoner's
injunction request predicated on an allegation of irreparable
injury from ongoing pain to allow response and consideration
of the merits). Other district courts in this Circuit have
been unanimous in their rejection of prisoner's requests
for injunctive relief mandating treatment for pain. See
Shaw v. Hood, 2014 WL 5148493, at * 4 (W.D. Ala. Oct.
14, 2014) (“Certainly, plaintiff has alleged that the
status of the flourishing cataracts in his right eye and the
condition of his prostate are causing him pain. But he has
not alleged that he will suffer irreparable harm from the
absence of treatment for or evaluation of his eyes and
prostate if he is not afforded immediate relief.”);
Keller v. Pichardo, 2009 WL 1324207, at * 1-2 (S.D.
Fla. May 11, 2009) (finding that allegations that prisoner
“has not received proper medical care for back injuries
suffered in a pre-incarceration automobile accident, ”
. . . ...