United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith, Chief Judge.
the Court is Magistrate Judge Patricia A. Sullivan's
Report and Recommendation (“R&R”), filed on
February 28, 2017, recommending that Plaintiff Ryan
Callahan's renewed Motion for Preliminary Injunction and
Temporary Restraining Order (“Motion”) be denied.
(ECF No. 86.) Plaintiff is actively prosecuting his
Complaint, filed pursuant to 42 U.S.C. § 1983, which
alleges that Defendants' deliberate indifference to his
medical need for surgery to correct three hammer toes on his
left foot constitutes cruel and unusual punishment under the
Eighth Amendment. (Compl. ¶¶ 1, 42, 48, ECF No. 1.)
Plaintiff's initial Motion for Preliminary Injunction and
Temporary Restraining Order was denied on November 22, 2016.
(Mem. and Order, ECF No. 50.)
then, Defendants arranged for another podiatrist to examine
Plaintiff. On January 30, 2017, Dr. Dehaven examined
Plaintiff, took x-rays, and wrote a detailed report of his
diagnoses and recommendations. (Def.'s Obj. to Mot. Ex.
A, ECF No. 79-1.) Dr. Dehaven stated that “[a]t this
time no surgical management on the left foot varus is
recommended however I do believe a custom accommodative
orthotic to help manage the varus position as well as offload
the lateral aspect of the left foot would be helpful for him
to ambulate with less pain.” (Id. at 2.) With
respect to Plaintiff's hammer toes, Dr. Dehaven stated
“Patient could undergo revision of great toe as well as
second and third toe on the left foot however at this time
that is not recommended. I would recommend at this time
custom accommodative orthotics to help offload the forefoot
and accommodate his forefoot varus position. This can be
performed by any visiting podiatric physician at the
correctional facility. This may also help prevent the need
for further surgical management of the toes. I did discuss
the risk of potentially undergoing further surgical
management of the hammertoes and due to the nonunion and his
[illegible] he does have considerable risk of recurrence and
failure of procedure. He also has considerable risk of
significant shortening of the great toe because of the need
to remove further bone. . . . I also discussed surgery of his
hammertoes would not fix his varus foot type and will not
improve the numbness that he has in his forefoot. However
again I reiterate that at this time surgical management is
not recommended treatment course, custom accommodative
orthotic would be most recommended.”
(Id. at 3.)
renewed Motion seeks an order from the Court for immediate
surgery. (Def.'s Mot. 6, ECF No. 78.) Magistrate Judge
Sullivan held a hearing on February 17, 2017, at which
Plaintiff appeared telephonically. The R&R recommends
denying the renewed Motion because “Plaintiff is
unlikely to succeed on the merits of [his] claim that
[Defendants] exhibited deliberate indifference to his medical
condition by refusing to allow foot surgery.” (R&R
6.) The R&R also notes that, as of the end of February,
Dr. Dehaven's recommendation for an orthotic had not yet
been implemented, but that Plaintiff would be seen by a
podiatrist the next time that a podiatrist visited the ACI.
(Id. at 4 n.4.)
filed an objection to the R&R on March 27, 2017. (ECF No.
89.) The objection was not timely filed because March 27 is
thirteen days past the end of the fourteen-day period in
which a litigant may file an objection to an R&R.
See Fed.R.Civ.P. 72(b)(2). This Court strictly
adheres to this fourteen-day period. See LR Cv
72(c)(1) (“Failure to file specific objections . . .
constitute[s] waiver of the right to review by the district
judge and the right to appeal the Court's
decision.”). However, the Court briefly notes that
Plaintiff's objection focuses on a second report from Dr.
Fish-whose initial report was considered by the Court for
Plaintiff's first Motion for Preliminary Injunction-that
issued three days prior to the hearing on Plaintiff's
renewed Motion. (Obj. to R&R, ECF No. 89.) Dr. Fish's
February 14 report states that “[p]atient is in need of
surgical correction in the future. . . . Also correction of
the nonunions of the hammertoes may not take away all
patients [sic] pain. Patient is getting out in two
months and is considering doing further surgery at that
time.” (Obj. to R&R Ex. A.) Plaintiff argues that
this most recent report “directly contradicts Dr.
Dehaven's report” and should control the
Court's analysis. (Id. at 5.)
Magistrate Judge Sullivan explained in the R&R, the First
Circuit has instructed “that the Eighth Amendment is
not violated when prison officials cho[o]se ‘one of two
alternatives-both of which are reasonably commensurate with
the medical standards of prudent professionals, and both of
which provide [plaintiff] with a significant measure of
relief.'” (R&R 5 (quoting Kosilek v.
Spencer, 774 F.3d 63, 90 (1st Cir. 2014)).) Here, Drs.
Fish and Dehaven are in agreement that immediate surgery is
not required; Dr. Fish recommended surgery “in the
future” with reservation about whether the surgery will
serve to alleviate the pain that Plaintiff is experiencing,
whereas Dr. Dehaven recommended against immediate surgery and
for immediate treatment by an orthotic to relieve
Plaintiff's pain. (See Obj. to R&R Ex. A;
Def.'s Obj. to Mot. Ex. A.) Dr. Dehaven also cautioned
Plaintiff heavily about the risks of surgery, and opined that
it may not fix the problems that Plaintiff has with his left
carefully reviewing Plaintiff's Motion and the R&R,
this Court ACCEPTS the R&R (ECF No. 86) and adopts the
reasoning set forth therein in its entirety. Plaintiff's
Motion for Preliminary Injunction and Temporary Restraining
Order (ECF No. 78) is therefore DENIED.
 The Court notes that it shares the
Magistrate Judge's unease that Dr. Dehaven's
recommendation for an orthotic was not immediately
implemented, and expects that Defendants have arranged for a
podiatrist to visit the ACI by the date of this Order. The
Court also notes, however, that this comment is not to be
construed as an opinion about the medically appropriate-or
constitutionally required-period of time between ...