HAWKINS v. OLIVER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE

NICHOLE HAWKINS, )

)

Plaintiff ) 1:23-CV-00354-RAL

)

vs. )

) SUSAN PARADISE BAXTER

OLIVER, FORMER SUPERINTENDENT; ) United States District Judge

OVERMYER, FORMER )

SUPERINTENDENT; MS. SENZ, FORMER )

PSYCHOLOGIST; MS. BROWN, MS. ) RICHARD A. LANZILLO

BOYLAN, DESK CLERK ) Chief United States Magistrate Judge

SUPERINTENDENT'S OFFICE; MS.

WAGNER, MS. R. ROCK WOOD, JOHN )

WETZEL, MS. A. MAHALSKI, THE ) REPORT AND RECOMMENDATION

UNITED STATES POSTAL SERVICE, MR. ) DENYING PLAINTIFF’S MOTION FOR

OBENG, MS. WEBSTER, MS. SHAHADA, ) TEMPORARY RESTRAINING ORDER

DEPARTMENT OF CORRECTIONS, )

JOHN DOE, SURGEON; MS. )

WILTANGER, MR. HECKLER, ) ECF NO. 43

SUPERINTENDENT GRAVES, MS. )

SOMMOSKY, PSYCHOLOGIST; MR. )

EDWARDS, MS. ANDERSON, )

CORRECTIONAL INDUSTRIES, )

MEDICAL ETHICS LICENSE BOARD, )

THE PSYCHIATRY ETHIC BOARD,

LICENSE COSMOTOLOGY BOARD, )

FEDERAL BUREAU OF )

INVESTIGATIONS, MR. ACE,

Defendants )

I. Recommendation

It is respectfully recommended that Plaintiff Nichole Hawkins’ motion for a temporary

restraining order (ECF No. 43) be DENIED.

I. Report

Plaintiff Nichole Hawkins (“Hawkins”) is an individual presently incarcerated at the

State Correctional Institution at Cambridge Springs (“SCI-Cambridge Springs”). She initiated

this pro se civil rights action pursuant to 42 U.S.C. § 1983 against thirty-eight defendants, eleven

of whom have since been terminated as parties to the suit. Hawkins has filed several

“amendments” to her Complaint since commencing this action, and the Court has now compiled

these amendments into a single 207-page Second Amended Complaint. ECF No. 61. Beyond its

prolixity, the Amended Complaint is unfocused, rambling, and replete with stream-of-

consciousness diatribes, making it nearly impossible to follow. Construing the Amended

Complaint generously, the Court can discern at best potential Eighth Amendment claims for

deliberate indifference and conditions of confinement.

Hawkins’ motion for a temporary restraining order (“TRO”) remains pending. See ECF

No. 43. Hawkins’ motion avers that in 2018 she underwent a hysterectomy performed by “Dr.

Warner.”! The motion further alleges that in addition to her hysterectomy, one of Hawkins’

ovaries was also removed due to ovarian cysts. ECF No. 43 at p. 1. This procedure caused her

complications requiring blood transfusions. ECF No. 43 at p. 2. On November 12, 2023,

Hawkins was taken to Meadville Hospital due to pain in her stomach and, she alleges, she

learned that both her ovaries were still intact. ECF No. 43 at p. 3. Hawkins further alleges that

Dr. Warner came to the prison and wanted to examine Hawkins with a CT scan “in an attempt to

be in charge of my medical treatment, to cover up malpractice...” Jd. For relief, she seeks “a

restraining order against Dr. Warner, without my medical follow-up and treatment being delayed

with Meadville Hospital and I would like (Dr. Oberg) who is also a named defendant, to approve

and set up my appointment with Meadville Hospital recommendation and (not retaliate against)

the Plaintiff by delaying setting up the appointment.” ECF No. 43 at p. 4. Hawkins also requests

' Hawkins’s Complaint referred to “Dr. Wagner” (see ECF No. 61 at p. 85), a doctor at UPMC. Contextually, it

appears that this is the same physician referred to in her motion for TRO as “Dr. Warner.”

that the Court order the prison to allow her to make phone calls to 1-800 numbers so that she

may find a medical malpractice attorney. Jd.

A. Standard of Review

A temporary restraining order is assessed under the same standards as a preliminary

injunction. See, e.g., Alves v. Main, 747 Fed. Appx. 111, 112 n.3 (3d Cir. 2019) (citing Holland

v. Rosen, 895 F.3d 272, 285 (3d Cir. 2018)). The party seeking preliminary injunctive relief has

the burden of demonstrating: (1) a reasonable probability of success on the merits; (2) irreparable

harm if the injunction is denied; (3) that the issuance of an injunction will not result in greater

harm to the non-moving party; and (4) that the public interest would best be served by granting

the injunction. Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 879 (d Cir.

1997); Opticians Ass’n of America v. Independent Opticians of America, 920 F.2d 187, 191-92

(3d Cir. 1990). As a threshold matter,

[t]he court may issue a temporary restraining order without written

or oral notice to the adverse party or its attorney only if: (A)

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 (B) 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).

As the moving party, Hawkins bears the burden of supporting the first two factors. See

Acierno v. New Castle Cty., 40 F.3d 645, 653 (Gd Cir. 1994). She must allege facts and produce

evidence that clearly supports a finding that immediate and irreparable injury will result to the

movant if preliminary relief is denied. See United States v. Stazola, 893 F.2d 34, 37 n.3 Gd Cir.

1990); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989). Absent support for either of the first two

factors, a court must deny the request for a preliminary injunction. See Acierno, 40 F.3d at 653

(3d Cir. 1994); Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir. 2000).

The purpose of the preliminary injunction is to preserve the status quo until the rights of

the parties can be fairly and fully litigated and determined by strictly legal proofs and according

to the principles of equity. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). The grant of

injunctive relief is an “extraordinary remedy which should be granted only in limited

circumstances.” American Telephone & Telegraph Co. v. Winback and Conserve Program, Inc.,

42 F.3d 1421 (d Cir. 1994) (quoting Frank’s GMC Truck Center, Inc. v. General Motor Corp.,

847 F.2d 100, 102 (3d Cir. 1988)). In the prison context, a request for injunctive relief “must

always be viewed with great caution because ‘judicial restraint is especially called for in dealing

with the complex and intractable problems of prison administration.’” Goff v. Harper, 60 F.3d

518, 520 (8th Cir. 1995) (quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)).

B. Discussion

Hawkins’ motion for emergency injunctive relief satisfies none of the requirements for

issuance of a TRO. Based on Hawkins’ allegations, her claim against Dr. Warner borders on the

fanciful, and her prospects for success on the merits of that claim are far from likely. She

essentially is asking the Court to direct prison officials to assign responsibility for her care to

specific doctors and away from others. But an inmate does not have a right, constitutional or

otherwise, to choose their physician or direct their medical treatment. Lasko v. Watts, 373 Fed.

Appx. 196, 203 (3d Cir. 2010) (observing that “a prisoner has no right to choose a specific form

of medical treatment,” so long as the treatment provided is reasonable) (quoting Harrison v.

Barkley, 219 F.3d 132, 138-140 (2d Cir. 2000)). “[M]ere disagreement as to the proper medical

treatment” is insufficient to state a constitutional violation. See Spruill v. Gillis, 372 F.3d 218,

235 (3d Cir. 2004) (citations omitted). And claims under § 1983 against prison medical

personnel generally fail where it is shown that the inmate has received continuing care but

believes that more should be done by way of diagnosis and treatment. See Estelle v. Gamble, 429

U.S. 97, 107 (1976). And allegations of medical malpractice are not sufficient to establish a

Constitutional violation. See White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990) (citations

omitted); see also Daniels v. Williams, 474 U.S. 327, 332-34 (1986) (negligence is not

compensable as a Constitutional deprivation). Hawkins alleges that Dr. Warner performed a

hysterectomy and removed one of Hawkins’ ovaries due to the presence of a cyst, but she

learned that both her ovaries remained. Although this allegation may indicate malpractice, her

motion and Amended Complaint are too confused to support a likelihood of success on the

merits of that claim.

Her motion also falls short of alleging facts to support an inference that she faces

irreparable harm absent injunctive relief. Hawkins has failed to allege any ongoing medical

malpractice or negligence by Dr. Warner; her TRO is based solely on alleged conduct that

occurred in the past. She has alleged no facts to support an inference that she faces prospective

irreparable harm if she remains under the care of Dr. Warner.

Regarding Hawkins’ second claim for relief, her request that the Court order the prison to

permit her to call medical malpractice lawyers using 1-800 number is not sufficiently tethered to

her Amended Complaint to support injunctive relief. She is essentially asking the Court to order

prison officials to take specific actions to facilitate her lawsuit against Dr. Warner. This relief is

distinct from the claims asserted and relief requested in her Amended Complaint. As such, it

provides no basis for the entry of a TRO or preliminary injunction. See Harrison v. Little, 2022

WL 18359018, at *2 (W.D. Pa. Dec. 2, 2022), report and recommendation adopted Harrision v.

Little, 2023 WL 275985 (W.D. Pa. Jan. 18, 2023); Angle v. Montag, 2022 WL 1156606, at *2

(W.D. Pa. Apr. 19, 2022) (citing Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997)

(rejecting injunctive relief where it “is not of the same character, and deals with a matter lying

wholly outside the issues in the suit’) (citing De Beers Consol. Mines v. United States, 325 U.S.

212, 220 (1945))). In addition, it is unclear against whom Hawkins seeks to impose this

obligation. The Court cannot enter a TRO or preliminary injunction “against a person who has

not been made a party to the case before it.” Additive Controls & Measurement Sys., Inc. □□□

Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996) (citing Scott v. Donald, 165 U.S. 107, 117

(1897) (“The decree is also objectionable because it enjoins persons not parties to the suit.”)); see

also Angle v. Montag, 2022 WL 1156606, at *2 (W.D. Pa. Apr. 19, 2022) (quoting Marshall v.

Sobina, 2014 WL 4437705, at *4 (W.D. Pa. Sept. 9, 2014) (denying prisoner’s motion for

preliminary injunction against non-parties) (citing cases & Fed. R. Civ. P. 65(d)(2))). Hawkins’

motion also does not support an inference that she will sustain irreparable harm absent a

mandatory injunction directing prison officials to assist her. Jt therefore provides no basis upon

which the Court may grant the requested relief. See McLaughlin v. Zavada, 2019 WL 5697347,

at *2 (W.D. Pa. Nov. 4, 2019).

If. Conclusion

For the foregoing reasons, it is respectfully recommended that Hawkins’ motion for a

temporary restraining order (ECF No. 43) be DENIED.

IV. Notice

In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek

review by the district court by filing Objections to the Report and Recommendation within

fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the

objections shall have fourteen (14) days from the date of service of objections to respond thereto.

See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive appellate rights. See

Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 Gd

Cir. 2007).

DATED this 3" day of October 2024.

BY THE COURT:

pare Bier

RICHARD A. LANZILLO

CHIEF UNITED STATES MAGISTRATE JUDGE