Opinion
04 Civ. 8906 (GEL) (HBP), 05 Civ. 2902 (GEL) (HBP).
November 13, 2006
MEMORANDUM OPINION AND ORDER
Plaintiff Ronnie Cole, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), made application to this Court on February 2, 2006 for an Order directing (1) his transfer from Wende Correctional Facility to Green Haven Correctional Facility or Sing Sing Correctional Facility, (2) his placement in the Unit for the Physically Disabled for inmates with multiple disabilities, (3) that urethral reconstruction surgery be performed on him by Doctor Brian Stone at Harlem Hospital, and (4) that he be granted access to his medical records written by Dr. M. Janice and Dr. Stone (Plaintiff's Motion, dated February 2, 2006, at 4). On March 23, 2006, defendants responded and addressed plaintiff's requests for a transfer back to Green Haven Correctional Facility and urethral reconstruction by Dr. Stone (Defendants' Letter in Opposition to plaintiff's February 2, 2006 declaration ("Defendant Letter"), dated March 23, 2006). Plaintiff submitted a letter in reply on March 28th ("Plaintiff's Letter") and a declaration on April 6, 2006 (Plaintiff's Decl."). In his last two submissions, plaintiff reasserted the first, third and fourth requests that he made on February 2 and moved to have the Court issue an Order that "all false charges and allegations" be removed from plaintiff's inmate records.
Plaintiff provides only Dr. Janice's first initial; his first name does not appear elsewhere in the record.
For the reasons set forth below, plaintiff's motions are granted in part and denied in part.
Plaintiff has two actions pending before this Court. In the first action, plaintiff seeks relief under 42 U.S.C. § 1983 for the alleged denial of adequate medical care, denial of medical treatment recommended by specialists and deliberate indifference, in violation of the Eighth and Fourteenth Amendments (see Complaint in Docket No. 04 Civ. 8906, dated October 1, 2004 (Docket Item 2)). The second action seeks relief pursuant to Americans With Disabilities Act on the basis of DOCS' failure to provide reasonable accommodations to plaintiff (see Amended Complaint in Docket No. 05 Civ. 2902, dated August 4, 2005 (Docket Item 17)).
Plaintiff's request to be transferred from Wende Correctional Facility back to Green Haven or Sing Sing is denied. A state prisoner has no liberty interest in being housed in a particular facility. Matiyn v. Henderson, 841 F.2d 31, 34 (2d Cir. 1988); Tinsley v. Goord, 05 Civ. 3921 (NRB), 2006 WL 2707324 at *5 (S.D.N.Y. Sept. 20, 2006); Fermin-Rodriquez v. Westchester County Jail Med. Pers., 191 F. Supp.2d 358, 363 (S.D.N.Y. 2002). In the absence of a violation of a federally protected right, which plaintiff does not allege in connection with his designation to Wende, there is no basis for a federal court to interfere in DOCS' housing decisions.
Plaintiff's motion to be placed in the Unit for the Physically Disabled is unsupported by any evidence that relates to what the Unit is or his need to be placed there. Accordingly, this aspect of plaintiff's motion is also denied.
Plaintiff's motion to have this Court order that Dr. Stone perform urethral reconstruction surgery on him at Harlem Hospital is denied. Despite plaintiff's assertion that Dr. Stone is the only doctor that will take on his surgery (Plaintiff's Decl. at 4), an inmate has no right to a physician of his own choosing.See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986); Millet v. Corr. Med. Serv., 04 Civ. 315 (WKS), 2006 WL 2585099 at *3 (D. Vt. July 19, 2006) ("inmates do not have a constitutional right to treatment of their choice"). Plaintiff has offered no evidence establishing either that Dr. Stone has unique skills or that there are no qualified physicians located in the vicinity of Wende Correctional Facility. Furthermore, defendants indicate in their opposition letter that Dr. Stone contacted Green Haven's medical staff after he last saw plaintiff and advised that "Harlem Hospital will not allow plaintiff in the Hospital due to security concerns regarding him" (Defendant Letter at 2). Thus, plaintiff's request to have Dr. Stone, or any doctor at Harlem Hospital, must, therefore, be denied.
Plaintiff does state in his April 6th declaration that "I have been to the Dapartment [sic] of Urology at the Wende Correctional Facility and has [sic] been inform [sic] that the Doctors will reffer [sic] plaintiff back to Dr. Stone because he Dr. Stone is willing to see and treat plaintiff [sic] condition." Even assuming this were true, however, plaintiff still does not have a right to be treated by a particular physician.
To the extent that plaintiff is asking for this Court to issue an Order directing that he undergo urethral reconstruction surgery (regardless of who performs the operation), plaintiff's request for injunctive relief is denied without prejudice.
The standard for the issuance of a preliminary injunction is well settled in this Circuit:
In general, to secure a preliminary injunction, the moving party must demonstrate: (1) irreparable harm, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the claim as to make it a fair ground for litigation, and a balance of hardships tipping decidedly in its favor.D.D. ex rel. V.D. v. New York City Bd. of Educ., 463 F.3d 503, ___, 2006 WL 2922093 at *4 (2d Cir. 2006), citing MONY Group, Inc. v. Highfields Capital Mgmt., L.P., 368 F.3d 138, 143 (2d Cir. 2004) (internal quotations omitted). See also Phillip v. Fairfield Univer., 118 F.3d 131, 133 (2d Cir. 1997); Statharos v. New York Taxi Limousine Comm'n, 198 F.3d 317, 321 (2d Cir. 1999); Time Warner Cable of New York City v. Bloomberg, L.P., 118 F.3d 917, 923 (2d Cir. 1997); Maltz v. Aetna Health Plans of New York, Inc., 114 F.3d 9, 11 (2d Cir. 1997); Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 376 (2d Cir. 1997); Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996). "[A] preliminary injunction is an extraordinary remedy that should not be granted as a routine matter." JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990). Moreover, "[a] heightened standard must be applied where, as here, the injunction which Plaintiff seeks is mandatory in nature." Woods v. Goord, 01 Civ. 3255 (SAS), 2002 WL 31296325 at *2 (S.D.N.Y. Oct. 10, 2002) (denying prisoner's motion for preliminary injunction mandating specific medical accommodations (inner quotations omitted)).
Here, plaintiff's application for injunctive relief — specifically, that urethral reconstruction surgery be performed on him — clearly requires DOCS to perform an affirmative act.
Since such an injunction would alter the current status quo by commanding a positive act, it is a mandatory injunction and therefore should only issue upon a clear showing that the moving party is entitled to the relief requested or where extreme or very serious damage will result from a denial of preliminary relief.Woods v. Goord, supra, 2006 WL 31296325 at *2, citing McKenna v. Wright, 01 Civ. 6571 (WK), 2002 WL 338375 at *4 (S.D.N.Y. March 4, 2002) (inner quotations omitted). Plaintiff describes his condition and need for the surgery at length in his declarations to the Court, and defendants do not expressly contest that plaintiff requires the procedure. Nevertheless, because plaintiff does not offer any medical evidence to support a showing either that he is entitled to urethral reconstruction or that extreme or very serious damage will result if he is denied the operation, plaintiff fails to meet the standard required to warrant the issuance of a mandatory injunction. Thus, to the extent that plaintiff seeks to have the surgery performed by another doctor, I will deny this aspect of plaintiff's motion without prejudice to renewal.
Defendants do, however, claim that plaintiff has refused to attend medical appointments — including appointments with urologists — that DOCS has arranged for him since his transfer to Wende Correctional (Defendant Letter at 2-3). Plaintiff disputes this assertion and contends that he has been seen by at least two urologists at Erie County Medical since his transfer to Wende Correctional (Plaintiff's Letter at 7).
Plaintiff's motion for an Order granting him access to his medical records is granted. Although defendants have offered to make plaintiff's medical and other records available to the Court for in camera review, they do not explain why plaintiff should not be granted access to his own records. Because plaintiff should have access to his own medical records, defendants are ordered to produce plaintiff's inmate medical records relevant to the pending actions. See Nolen v. Goord, 02 Civ. 499 (HBS), 2005 WL 3059396 at *2 (W.D.N.Y. Nov. 15, 2005) (directing DOCS to produce, inter alia, plaintiff's inmate medical records, disciplinary records and administrative records was necessary because plaintiff did not serve any discovery demands for them).
Plaintiff's motion to have all false allegations and charges removed from his file is denied. An inmate has no substantive due process right to be free from false charges of misconduct, Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), unless the false charges are asserted in retaliation for the inmates' engaging in constitutionally protected activity. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). Although plaintiff alleges in his motion that prison officials are retaliating against him for filing inmate grievance complaints and accessing the courts, there is no procedural vehicle that would permit a court to order the striking of allegedly false retaliatory misconduct reports which have bot been raised in the complaint. If plaintiff wishes to pursue any issue concerning alleged false and retaliatory charges against him, he should do so by way of amendment to one of his complaints.
In conclusion, (1) plaintiff's motion for a Court Order directing his transfer from Wende Correctional Facility is denied with prejudice, (2) plaintiff's motion to be placed in the Unit for the Physically Disabled is denied with prejudice, (3) plaintiff's motion for a Court Order directing plaintiff to undergo urethral reconstruction surgery is denied without prejudice, except to the extent that plaintiff requests it be performed by Dr. Stone at Harlem Hospital, and to that extent, it is denied with prejudice, (4) plaintiff's motion to compel defendants to produce his medical records from Dr. Stone and Dr. Janice, as well as his other inmate medical records relevant to the pending actions, is granted, and (5) plaintiff's motion for an Order that "all false charges and allegations" be removed from plaintiff's inmate records is denied without prejudice to renewal after the claim is raised in a properly drafted pleading.
SO ORDERED