2:08-cv-02232-HAB-DGB # 99 Page 1 of 5
`E-FILED
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` Monday, 16 November, 2009 02:42:06 PM
` Clerk, U.S. District Court, ILCD
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`URBANA DIVISION
`______________________________________________________________________________
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`Case No. 08-CV-2232
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`JEFFREY ORR, et al.,
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`Plaintiffs,
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`v.
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`WILLARD O. ELYEA, MICHAEL
`PUISIS, and WEXFORD CORP.,
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`Defendants.
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`OPINION
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`On April 5, 2009, Plaintiffs filed an Amended Motion for Permanent Injunction (#49).
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`Defendant Wexford Corporation filed its Response (#60) on May 1, 2009. Defendants Willard O.
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`Elyea and Michael Puisis filed their Response (#74) on June 22, 2009. For the following reasons,
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`Plaintiffs’ Amended Motion for Permanent Injunction (#49) is DENIED.
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`BACKGROUND
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`Plaintiffs’ Amended Motion for Injunctive Relief (#49) asks for the following:
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`(1) That the court should order the Illinois Department of Corrections (IDOC) to substitute
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`the National Digestive Diseases Information Clearinghouse (NDDIC) Hepatitis C treatment
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`guidelines for the current guidelines used by the IDOC, which are the Federal Bureau of Prisons
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`(BOP) Hepatitis C treatment guidelines. Plaintiffs want the court to order strict compliance with the
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`NDDIC treatment guidelines.
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`(2) Upon the start of any therapy, the court must order that Defendant Puisis have the IDOC
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`determine whether or not the course of treatment is likely to be completed prior to the inmate’s
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`discharge. In the event that the treatment will not be finished, the IDOC should be required to make
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`a determination as to whether or not it is likely that the individual will be on Public Aid after
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`discharge. If they are, prior to discharge, the Defendant Puisis and IDOC should coordinate and
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`make application for medical cards so that the Department of Public Aid could continue treatment.
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`Upon the failure of such arrangements to be made, the IDOC should make sufficient quantities of
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`medication available to allow the inmate to complete treatment.
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`(3) The court must appoint an independent physician, with specialty in the care and treatment
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`of patients with Hepatitis C to serve as a “prisoner’s advocate.” That any grievance which denies
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`medical care to an inmate related to Hepatitis C, could be, at the election of the prisoner, referred
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`to said individual. That the independent physician would be allowed to serve as a second opinion
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`and make referrals for necessary medical care in the event he disagreed with the grievance position.
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`Additionally, as protocol changed based upon advances in the science, the prisoner’s advocate could
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`request the court to modify the Order of Injunctive Relief to conform to current medical standards
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`in the treatment of Hepatitis C.
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`Defendants’ argue: (1) Plaintiffs have failed to meet their burden to show that the
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`substantive requirements of injunctive relief have been met; (2) the injunctive relief requested is not
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`narrowly tailored and would violate the Prison Litigation Reform Act; and (3) Plaintiffs’ motion as
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`it pertains to Defendants’ Puisis and Elyea is moot.
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`ANALYSIS
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`As pointed out by Defendants, although Plaintiffs have titled their motion “Amended Motion
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`for Permanent Injunction,” Plaintiffs’ motion must be treated at this stage of the litigation as one for
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`a preliminary injunction, not permanent, since Plaintiffs have provided no evidence that they have
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`already succeeded on the merits. See Collins v. Hampton, 349 F.3d 371, 374 (7th Cir. 2003) (Where
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`a permanent injunction has been requested at summary judgment, we must determine whether the
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`plaintiff has shown: (1) success, as opposed to a likelihood of success, on the merits). Therefore,
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`the court will construe Plaintiffs’ request for an injunction as a request for a preliminary injunction.
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`“A party seeking a preliminary injunction must demonstrate that he is reasonably likely to
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`succeed on the merits, that he is experiencing irreparable harm that exceeds any harm his opponent
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`will suffer if the injunction issues, that he lacks an adequate remedy at law, and that the injunction
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`would not harm the public interest.” Coronado v. Valleyview Public School Dist. 365-U, 537 F.3d
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`791, 794-95 (7th Cir. 2008). If the party seeking the injunction meets this threshold burden, then the
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`court must weigh the factors against one another in a sliding scale analysis, which is to say the court
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`must exercise its discretion to determine whether the balance of harms weighs in favor of the moving
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`party or whether the nonmoving party or the public interest will be harmed sufficiently that the
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`injunction should be denied. Coronado, 537 F.3d at 795.
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`First, the court will address Plaintiffs’ request to substitute the NDDIC treatment guidelines
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`for the BOP guidelines currently used by the IDOC. Plaintiffs are asking this court to take the
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`extraordinary step of substituting its own judgment for that of the medical professionals who advise
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`and administer the IDOC’s treatment protocols. Plaintiffs provide no legal or factual support for
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`why this court should impose the NDDIC guidelines on the IDOC. The only argument offered by
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`Plaintiffs in their memorandum in support of their motion is that the NDDIC “provides information
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`relative to treatment and management of Hepatitis C” and that the Defendants “ignore these
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`directives and refuse proper monitoring and treatment of the Plaintiffs and others similarly situated.”
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`Plaintiffs provide no support or evidence for why the BOP guidelines are inferior to the NDDIC
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`guidelines and why this court should resort to the drastic measure of ordering the IDOC to throw
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`out the BOP guidelines. Rather, all that Plaintiffs argue are conclusory statements, such as the
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`NDDIC’s “logarithm for treatment is easier to follow and more specific.” As Plaintiffs have not
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`shown the likelihood for success on the merits, the court will refuse to grant the injunction on this
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`issue. See
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`Coronado, 537 F.3d at 795.
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`Plaintiffs’ request for injunctive relief must also fail on the remaining two issues. Again, the
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`injunctive relief requested by Plaintiffs is drastic and far reaching. Plaintiffs are asking this court
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`to order Defendants and IDOC to drastically alter its treatment policies, as well as hiring an expert
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`doctor in Hepatitis C, without meeting its burden of showing a likelihood of success on the merits.
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`Plaintiffs seem to cite to the success of one of the plaintiffs in Roe v. Sims, 06-CV-3034, the
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`predecessor case tried in front of District Judge Harold A. Baker. However, in that case, after the
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`jury returned a verdict in favor of the four Hepatitis C-infected inmate plaintiffs, Judge Baker, in a
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`post-trial motion, granted judgment as a matter of law in favor of Dr. Elyea and against three of the
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`four plaintiffs. That case remains currently pending on appeal before the Seventh Circuit in
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`Chicago. Plaintiffs have not, however, provided the detailed legal and factual support necessary to
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`show likelihood of success on the merits in this present case. They have offered conclusory
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`statements about the seriousness of their condition and “refusal of Defendants to” treat that
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`condition. They have not provided a detailed legal and factual argument to meet their burden as to
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`why this court should grant the extraordinary injunctive relief they ask for.
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`Nor is their relief narrowly tailored, but rather it is a broad, wide-ranging request. Plaintiffs
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`appear to acknowledge this is in their memorandum of law in support, stating:
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`“While the parties may quibble about the exact details of the injunctive relief,
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`or whether the requested relief is too broad, the plaintiffs need and are entitled to
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`relief. Maybe a Court appointed expert, trained in the treatment of Hepatitis C and
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`without a motive to lean one way or the other could assist the Court in narrowly
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`tailoring relief.” See Federal Rule of Evidence 706.
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`Plaintiffs have not shown the likelihood of success on the merits for their requested
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`injunctive relief, nor have they narrowly tailored such relief. See Coronado, 537 F.3d at 795.
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`Plaintiffs’ request for preliminary injunctive relief must be denied.
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`IT IS THEREFORE ORDERED:
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`Plaintiffs’ Amended Motion for Permanent Injunction (#49) is DENIED.
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`ENTERED this 16th day of November, 2009
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`s/ Michael P. McCuskey
`MICHAEL P. McCUSKEY
`CHIEF U.S. DISTRICT JUDGE
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