United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
HOLLY PIERCE, NP, et al., Defendants
L. Hollander United States District Judge.
Pevia, who is a self-represented prisoner, has filed a Motion
for Temporary Restraining Order, requesting that defendants
be directed to provide him with a knee brace; assign him
bottom bunk status; and provide analgesic medication. ECF 6.
The Office of the Attorney General filed a court-directed
response (ECF 9) and plaintiff has replied. ECF 12. No.
hearing is necessary to resolve the motion. Local Rule 105.6.
September 20, 2018, plaintiff was seen by medical staff
regarding his inquiry about a knee brace. ECF 9-1 at 7. No.
concerns were noted at that time. He was again seen by
medical staff regarding the knee brace on December 19, 2018.
Id. at 11. At that time, it was noted that the knee
brace issue had been resolved. Id.
February 26, 2018, Case Manager John White contacted
plaintiff's housing unit and spoke with Officer Conner,
who went to plaintiff's cell to ask if plaintiff had a
knee brace. ECF 9-1, ¶ 6. Plaintiff advised Conner that
he purchased a knee brace from another inmate but did not
have the proper paperwork showing it belonged to him.
Id. Conner inspected the brace and returned it to
plaintiff. Id. Inmates are permitted to place a
catalog order for knee braces if the Medical Department
approves. ECF 9-1, ¶ 8.
indicates that he did not purchase a knee brace from another
inmate, which he describes as having “hinged bracket[s]
on the sides, ” but rather a knee sleeve, which he
describes as “tough material which can slide on and off
limbs like a sock.” ECF 12 at 2. Additionally, he
indicates that he was not able to purchase a knee brace from
commissary due to his indigency. Id.
had a medical order for a lower bunk from June 14 to December
14, 2018. ECF 9-1 at 3. On August 10, 2018, plaintiff
requested that his bottom bunk paperwork be renewed.
Id. at 5. In October he again requested that his
bottom bunk status be renewed and also indicated he wanted a
chair in his cell. Id. at 9. At that time medical
staff noted that there were no orders for bottom bunking.
Kepitch, R.N. further indicated there was no supporting
evidence for bottom bunk status and that plaintiff appeared
fit and muscular, ambulated well, and was able to get on and
off the examination table without issue. Keptich discussed
plaintiff's bottom bunk status with the nurse
practitioner and it was determined that there was no medical
indication for an order for a lower bunk. Id.
Additionally, security staff advised that chairs were not
permitted in cells while inmates were on segregation status.
Id. Despite not having an order for bottom bunking,
plaintiff has not been assigned to a top bunk since November
18, 2014; he has always been assigned a bottom bunk. ECF 9-1,
confirms that he has not been assigned to a top bunk. ECF 12
at 3. He attributes this to the conduct of tier officers who
are aware of his medical conditions and do not want to be
held liable if he falls. Id.
was prescribed aspirin and Mobic from June 26 to October 26,
2018. ECF 9-1 at 5. He was also prescribed Tylenol Extra
Strength from June 26 to September 26, 2018. Id.
Plaintiff's prescribed medications were stopped by
medical personnel on October 26, 2018. ECF 9-1, ¶ 9.
Inmates are permitted to place commissary orders for
over-the-counter pain medications. Id. Plaintiff
confirms that he is able to order pain medication from the
commissary but expresses concern that the over-the-counter
medications he takes are harmful to him due to his other
medical issues. ECF 12 at 4.
February 8, 2019, plaintiff refused to attend sick call
regarding his complaint that his knee buckled when he moved.
ECF 9-1 at 4. However, plaintiff was observed in the
“yard, ” walking without difficulty. Id.
preliminary injunction affords an extraordinary remedy prior
to trial. Therefore, the party seeking the preliminary
injunction must demonstrate: (1) by a “clear
showing” that he is likely to succeed on the merits at
trial; (2) he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities
tips in his favor; and (4) an injunction is in the public
interest. See Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20-23 (2008); Dewhurst v.
Century Aluminum Co., 649 F.3d 287, 292-93 (4th Cir.
2011). “All four requirements must be satisfied.”
Cantley v. W. Virginia Reg'l Jail & Corr.
Facility Auth., 771 F.3d 201, 207 (4th Cir. 2014)
(brackets omitted); see also Pashby v. Delia, 709
F.3d 307, 320 (4th Cir. 2013) (noting that Fourth
Circuit's prior test of balancing the factors is no
longer good law in light of Winter). Plaintiff's
request for injunctive relief shall be denied, as he does not
clearly satisfy all four factors.
has failed to demonstrate a likelihood of suffering
irreparable harm if the relief is not granted. As to
irreparable harm, the movant must show the harm to be
“neither remote nor speculative, but actual and
imminent.” Direx Israel, Ltd. v. Breakthrough Med.
Grp.,952 F.2d 802, 812 (4th Cir. 1991) (citation
omitted). Here, plaintiff has access to the items he seeks.
He possesses knee support, may purchase analgesic pain
medication, and is assigned to a lower bunk. Plaintiff may
seek any additional medical care through the inmate sick call