Clemens v. Peters, 94-2433

• Citation: 69 F.3d 539
• Decision Date: 25 October 1995
• Docket Number: No. 94-2433,94-2433
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Roy CLEMENS, Plaintiff-Appellant, v. Howard PETERS III, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 539

69 F.3d 539

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Roy CLEMENS, Plaintiff-Appellant, v. Howard PETERS III, et al., Defendants-Appellees.

No. 94-2433.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 20, 1995. ¹

Decided Oct. 25, 1995.

Before FLAUM, MANION and DIANE P. WOOD, Circuit Judges.

ORDER

Plaintiff Roy Clemens filed this interlocutory appeal from a district court order denying his motion for a preliminary injunction requesting an order that the defendant prison officials provide certain medications to Clemens. ² We have jurisdiction under 28 U.S.C. Sec. 1292(a)(1). ³

In reviewing the denial of a motion for a preliminary injunction, this court will disturb the district court's ruling only if there is an abuse of discretion. Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir.1994). In order to obtain a preliminary injunction, the movant must make a threshold showing that: (1) the case has some likelihood of success on the merits; (2) no adequate remedy at law exists; and (3) the movant will suffer irreparable harm if the injunction is not granted. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.1992). The denial of a motion for a preliminary injunction may be based solely on plaintiff's failure to establish a negligible chance of success on the merits. Curtis v. Thompson, 840 F.2d 1291, 1297 (7th Cir.1988).

Under Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994), Clemens must show that the defendants were deliberately indifferent to his medical needs. Deliberate indifference exists when an official knows of and disregards a serious medical condition and the official is "aware of facts from which an inference could be drawn that a substantial risk of harm exists, and he must also draw that inference." Farmer, 114 S.Ct. at 1979, 1984.

Clemens admits being examined by the medical staff at both Pontiac and Menard Correctional Centers for various ailments, including neurological nerve disorders, deterioration of the spine, and colon and lung cancer. He simply disagrees with their treatment plan, complaining that they "refuse to listen to [plaintiff's] advice." Clemens wants the medication he was taking prior to his incarceration, including three pain killers, two muscle relaxers, three antibiotics, and two anti-seizure drugs. Clemens asks the court to compel the prison staff to "prescribe, purchase and deliver proper medications that deal effectively with the plaintiff's medical needs without concern for costs." But the only medical record supplied to the district court was a 1991 letter from Dr. Paul Garret, diagnosing Clemens with lung cancer, and an undated discharge summary listing several medications for acute bronchitis.

The question of whether a certain diagnostic technique or form of treatment should be prescribed "is a classic example of a matter for medical judgment." Estelle v. Gamble, 429 U.S. 97, 107 (1976). A prisoner does not have a right to a particular type of medical treatment. Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.1987) (transsexual prisoner was entitled to medical treatment, but not necessarily the estrogen treatment he reques...