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Greywind v. Podrebarac

August 18, 2010

JOHN WILLARD GREYWIND, PLAINTIFF,
v.
JAMES T. PODREBARAC, LEANN BERTSCH, PATRICK BRANSON, AND KATHY BACHMEIER, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Before the Court is the Plaintiff's Motion for Preliminary Injunction filed on March 11, 2010. See Docket No. 10. The Plaintiff filed a supplement to his motion on March 24, 2010. See Docket No. 11. The Defendants filed a response in opposition to the motion on April 7, 2010. See Docket No. 12. For the reasons set forth below, the Plaintiff's motion for a preliminary injunction is denied.

I. BACKGROUND

The plaintiff, John Willard Greywind, is an inmate at the North Dakota State Penitentiary (NDSP). Defendant James T. Podrebarac is a dentist at NDSP, Defendant Leann Bertsch is the Director of the North Dakota Department of Corrections and Rehabilitation, Defendant Patrick Branson is a Deputy Warden at NDSP, and Defendant Kathy Bachmeier is the Medical Director at NDSP. Greywind alleges that on September 15, 2009, he fractured a tooth as a result of biting down on a bone chip in a hamburger provided by NDSP. Dr. Podrebarac determined Greywind had a buccal gingival abscess at teeth numbers 3 and 4, a root fracture to tooth number 4, and endodontic/periodontal disease. See Docket No. 12-1. Greywind made numerous complaints regarding pain in his number 4 tooth. Greywind asked to have a root canal and crown put on his number 4 tooth. However, Dr. Podrebarac advised Greywind that the proper treatment for a root fracture is extraction of the tooth. Greywind did not agree to the extraction and has continued to complain of pain and demand a root canal and crown. Dr. Podrebarac has continued to treat the tooth with antibiotics and pain medication.

On February 8, 2010, Greywind filed a complaint against the Defendants under 42 U.S.C. § 1983 seeking a permanent injunction and compensatory damages in the amount of $25,000.00. See Docket Nos. 2 and 5. In his affidavit filed on March 11, 2010, Greywind states, "That a preliminary injunction must be ordered to force the defendants to take action in this serious medical situation that they vehemently now refuse to do." See Docket No. 9. Greywind included a proposed "Order to Show Cause for Preliminary Injunction and Temporary Restraining Order" with his affidavit. See Docket No. 9-1. Greywind did not file a memorandum in support of his request for a preliminary injunction or temporary restraining order. Greywind filed a supplemental document on March 24, 2010, citing case law in his favor. See Docket No. 11.

II. LEGAL DISCUSSION

Greywind contends the Defendants violated his Eighth Amendment right against cruel and unusual punishment through their deliberate indifference to his serious medical condition and a preliminary injunction is necessary to relieve him of his pain and prevent further infection. The Defendants contend Greywind's motion does not comply with the District of North Dakota's Local Rules. The Defendants further contend Greywind is not entitled to a preliminary injunction because he has not demonstrated a substantial probability of succeeding on the merits or irreparable injury if the preliminary injunction is not granted.

A. FAILURE TO FILE MEMORANDUM

The Government contends Greywind's motion should be dismissed for failure to comply with the District of North Dakota's Local Rules because he failed to file a memorandum in support of his motion. Local Civil Rule 7.1(B) states, "Upon serving and filing a non-dispositive motion, the moving party must contemporaneously serve and file a memorandum in support not to exceed twenty (20) pages." Local Civil Rule 7.1(F) provides:

A party's failure to serve and file a memorandum or a response within the prescribed time may subject a motion to summary ruling. A moving party's failure to serve and file a memorandum in support may be deemed an admission that the motion is without merit. An adverse party's failure to serve and file a response to a motion may be deemed an admission that the motion is well taken.

Courts sometimes give leniency to pro se litigants with regard to procedural rules. See Hughes v. Rowe, 499 U.S. 5, 9 (1980) (holding a prisoner's pro se complaint to "less stringent standards than formal pleadings drafted by lawyers"); but see Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005) ("Even pro se litigants must comply with court rules and directives"). The language of Local Civil Rule 7.1 is permissive, not mandatory. This Court "may" consider Greywind's failure to file a formal memorandum to be "an admission that the motion is without merit." D.N.D. Civ. R. 7.1(F). However, in light of the fact Greywind filed a supplemental document citing relevant case law (Docket No. 11), the Court will consider Greywind's motion on its merits.

B. PRELIMINARY INJUNCTION

Greywind seeks a preliminary injunction forcing the Defendants to provide him with antibiotics and perform a root canal and place a crown on his fractured tooth. Rule 65 of the Federal Rules of Civil Procedure allows the Court to issue preliminary injunctions. "A court issues a preliminary injunction in a lawsuit to preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the lawsuit's merits." Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) (citing Dataphase Sys., Inc., v. C L Sys., Inc., 640 F.2d 109, 113 n.5 (8th Cir. 1981)). In Dataphase, the Eighth Circuit Court of Appeals explained the factors a court should consider when deciding whether to grant preliminary injunctive relief:

Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest. Dataphase, 640 F.2d at 113. The moving party bears the burden of establishing the necessity of a preliminary injunction. Baker Elec. Co-op, Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994). "No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the ...


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