Opinion
01 Civ. 9587 (SAS)
January 21, 2003
Lawrence Johnson, Jamal Stephenson, Tom Lynch, Charles Woods, for Plaintiffs (Pro Se).
Susan M. Barbour, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY, for Defendants.
OPINION AND ORDER
Plaintiffs, proceeding pro se, are four non-ambulatory inmates housed in the Unit for the Physically Disabled at the Green Haven Correctional Facility ("Green Haven"). Plaintiffs are suing the New York State Department of Correctional Services, its Commissioner, and various Green Haven medical personnel under section 1983 of Title 42, United States Code ("section 1983"). Plaintiffs allege, inter alia, that defendants have deprived them of adequate medical care by refusing access to a wheelchair specialist, thereby forcing them to use ill-fitting wheelchairs.
The "Tobacco Defendants" consisting of Newport Lorillard, Philip Morris, Inc, and Republic (Top) Tobacco, L.P., were previously dismissed from this lawsuit for lack of state action. See Johnson v. Newport Lo[r]illard, No. 01 Civ. 9587, 2002 WL 1203842, at *3 (S.D.N.Y. June 3, 2002).
Plaintiffs also allege that they are exposed to excessive secondhand smoke in violation of the Eighth Amendment. Plaintiffs have not, however, sought any injunctive relief with regard to this claim.
On February 10, 2002, plaintiffs filed a Motion for a Temporary Restraining Order ("TRO") restraining defendants from taking further wheelchair measurements. According to plaintiffs, a physical therapist, not a wheelchair specialist, directs other inmates to take their wheelchair measurements. See id. ¶ 6. Then, disregarding the doctor's orders, the physical therapist allegedly orders a standard type wheelchair for all inmates. See id. Use of these ill-fitting wheelchairs results in lower back disorders, swelling of the legs and feet, and severe pain. See id. at ¶¶ 11, 13. In their TRO motion, plaintiffs requested that defendants provide them with properly medically-fitted wheelchairs, equipped with pneumatic (air) tires, after they see a wheelchair specialist. See id. ¶ 14. Plaintiffs also requested class certification. See id. ¶ 1.
Plaintiffs claim they represent a class of present and future inmates who are deprived of a smoke-free environment at Greenhaven and who suffer the effects of exposure to second-hand smoke. See Complaint ¶ 52. While class actions are sometimes appropriate in section 1983 litigation, a class should not be certified where a pro se litigant will act as class representative. "it is plain error for a pro se inmate to represent other inmates in a class action." Fowler v. Lee, No. 01-6712, 2001 WL 1033312, at *1 (4th Cir. Sept. 10, 2001); Devlin v. Transportation Communications Int'l Union, No. 95 Civ. 742, 2002 WL 413919, at *2 (S.D.N.Y. Mar. 14, 2002) ("Because a non-lawyer typically lacks the legal know-how essential to safeguard the interests of a proposed class, courts refuse to certify a class represented by a pro se litigant."). Plaintiffs' request for class certification is therefore summarily denied.
At a conference held on June 11, 2002, I denied plaintiffs' motion for a TRO. See Transcript of 6/11/02 Conference at 10. I then converted the TRO motion to a Motion for Preliminary Injunction and ordered additional written submissions by the parties. See id. at 11. For the reasons set forth below, plaintiffs' motion for a preliminary injunction is denied.
Because this motion can be resolved on the parties' submissions, no evidentiary hearing was held. An evidentiary hearing is not required when the disputed facts are amenable to complete resolution on a paper record. See Drywall Tapers and Pointers of Greater N.Y. v. Local 530 of Operative Plasterers and Cement Masons Int'l Ass'n, 954 F.2d 69, 76 (2d Cir. 1992) (holding that district court was justified in granting injunction without a hearing because affidavits provided basis for court's decision). "There is no doubt that a preliminary injunction may be `denied without a hearing . . . when the written evidence shows the lack of a right so clearly that receiving further evidence would be manifestly pointless.'" McKenna v. Wright, No. 01 Civ. 6571, 2002 WL 338375, at *13 n. 13 (S.D.N.Y. Mar. 4, 2002) (quoting Larouche v. Webster, 566 F. Supp. 415, 419 n. 5 (S.D.N.Y. 1983)).
I. DISCUSSION
A. Standard for Preliminary Injunction
"The purpose of a preliminary injunction is to prevent irreparable injury and preserve a court's ability to render a meaningful decision on the merits." Tactica Int'l, Inc. v. Atlantic Horizon Int'l, Inc., 154 F. Supp.2d 586, 597 (S.D.N.Y. 2001) (citing WarnerVision Entm't v. Empire of Carolina, Inc., 101 F.3d 259, 261-62 (2d Cir. 1996)). In deciding a motion for preliminary injunction, a court may consider the entire record including affidavits and other hearsay evidence. See Fisher v. Goord, 981 F. Supp. 140, 173 n. 38 (W.D.N.Y. 1997) (citing Federal Sav. Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558 (5th Cir. 1987)). Although the decision whether to grant a preliminary injunction lies squarely within the court's discretion, "a preliminary injunction is an extraordinary measure that should not be routinely granted." Tactica, 154 F. Supp.2d at 597 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
In order to obtain a preliminary injunction, plaintiffs must ordinarily demonstrate: (1) the possibility of irreparable harm; and (2) either (a) a likelihood of success on the merits, or (b) a sufficiently serious question going to the merits combined with a balance of hardships tipping decidedly in favor of the moving party. See SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21, 24 (2d Cir. 2000). A heightened standard applies where the injunction which plaintiffs seek is mandatory in nature. McKenna, 2002 WL 338375, at *4. Here, plaintiffs ask this Court to order defendants to grant them access to a wheelchair specialist and provide them with custom fitted wheelchairs. Such mandatory injunctions should only issue if plaintiffs demonstrate that they have a clear or substantial likelihood of success on the merits. See id. (citing Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d Cir. 1996), and S.E.C. v. Unifund SAL, 910 F.2d 1028, 1040 (2d Cir. 1990)).
A mandatory injunction is one which would "`alter the status quo by commanding some positive act.'" McKenna, 2002 WL 338375, at *4 (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995)
B. Subject Matter Jurisdiction
Defendants in this action are state prison officials and medical personnel and a state agency, all of whom are generally immune from suit when sued in their official capacities. See U.S. Const. amend. XI. However, the Eleventh Amendment is not a bar to a suit in equity against state officials who violate federal rights. See Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir. 1990) (holding that the Eleventh Amendment does not preclude a federal court from granting prospective injunctive relief against a state official sued in his or her official capacity). Here, plaintiffs seek injunctive relief for alleged violations of their Eighth Amendment right to be free from cruel and unusual punishment. Thus, there is no Eleventh Amendment bar to plaintiffs' request for injunctive relief.
The Eleventh Amendment provides:
The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
C. Eighth Amendment Right to be Free from Deliberate Indifference to Serious Medical Needs
The Eighth Amendment prohibits the infliction of cruel and unusual punishment on prisoners. In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Supreme Court held that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). See also Farmer v. Brennan, 511 U.S. 825, 834 (1994) ("To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. . . . In prison-conditions cases that state of mind is one of `deliberate indifference' to inmate health or safety. . . .") (internal quotation marks and citations omitted). Because the inadvertent or negligent failure to provide adequate medical care does not rise to the level of deliberate indifference, allegations of medical malpractice or negligent treatment are insufficient to state a claim under section 1983. Estelle, 429 U.S. at 105-06.
To sustain a claim of deliberate indifference to medical needs, plaintiffs must satisfy a two-part test. The objective component requires the alleged deprivation to be sufficiently serious. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are `serious.'"). Accordingly, "only those deprivations denying `the minimal civilized measure of life's necessities,' are sufficiently grave to form the basis of an Eighth Amendment violation. Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quotingRhodes v. Chapman, 452 U.S. 337, 347 (1981)). This standard contemplates a "condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). A serious medical need arises where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citation omitted).
To satisfy the subjective prong of the test, prison officials must have acted with a sufficiently culpable state of mind, i.e., deliberate indifference. See Farmer, 511 U.S. at 834. Plaintiffs must therefore show that prison officials intentionally denied, delayed access to, or intentionally interfered with prescribed treatment. See Estelle, 429 U.S. at 104-05. See also Farmer, 511 U.S. at 837 ("[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."). "[T]he subjective element of deliberate indifference `entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Hathaway v. Coughlin II, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Farmer, 511 U.S. at 835). Accordingly, subjective recklessness can satisfy the deliberate indifference standard where "the official has actual knowledge that the prisoner faced a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. However, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106.
D. Application to Plaintiffs' Claims
"Prison officials have a duty to provide prisoners with the `reasonably necessary medical care which would be available to him or her . . . if not incarcerated.'" Candeleria v. Coughlin, No. 91 Civ. 2978, 1996 WL 88555, at *7 (S.D.N.Y. Mar. 1, 1996) (quoting Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989)). See also Edmonds v. Greiner, No. 99 Civ. 1681, 2002 WL 368446, at *8 (S.D.N.Y. Mar. 7, 2002) ("A person who is incarcerated is entitled to receive adequate medical care."). However, a prison cannot be required to meet the same standard of medical care found in outside hospitals. See Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir. 1984). Moreover, a prisoner has no right to the treatment of his choice. See McKenna, 2002 WL 338375, at *7.
[D]isagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) (citing Estelle, 429 U.S. at 97) (emphasis added). See also Candelaria, 1996 WL 88555, at *7 ("A difference of opinion between an inmate and medical professionals . . . as to the appropriate course of treatment does not in and of itself constitute an Eighth Amendment violation.")
Here, defendants have submitted substantial evidence refuting plaintiffs' claim that inmates take wheelchair measurements which results in ill-fitting wheelchairs. According to MaryKate Maddock-Williams, assistant physical therapist at Green Haven, inmates do not measure, and have never measured, patients for wheelchairs. See Affidavit of MaryKate Maddock-Williams ("Williams Aff.") at ¶ 15. Rather, such measurements are taken by the physical therapist. See id. at ¶ 14 ("At Green Haven, the Physical Therapist, Salem Ece, is qualified to evaluate and measure patients for wheelchairs. The Physical Therapist is also qualified to measure a patient to determine what adjustments to the arm rests, leg rests or other moveable parts of the wheelchair are necessary.").
There is also evidence contradicting plaintiffs' claim that all inmates are issued the same standard wheelchair. The Purchase Request forms used by Green Haven include different specifications for each wheelchair ordered. For example, an "Ultra Light Invocare Action Patriot" wheelchair with an adjustable back and removable legs was ordered for Charles Woods on September 5, 2000). See Purchase Request Form, Ex. B to Williams Aff., at 88. Special plastic-coated handrims were also ordered for Woods' wheelchair. See id. at 91. On October 13, 2000, a "Quickie Titanium" wheelchair was ordered for Tom Lynch. See id. at 100. Black nylon back upholstery and foam cushions were subsequently ordered for Lynch's wheelchair. See id. at 104. Other Purchase Request forms include specifications sufficiently detailed to refute plaintiffs' claim that all inmates are receiving generic, ill-fitting wheelchairs. See id. at 109, 129 and 130.
Woods filed a grievance claiming he never received the ultra light wheelchair ordered on September 5, 2000. See 12/14/00 Grievance, Ex. A to Williams Aff., at 29. According to Woods, if Williams had looked carefully, she would have seen that the wheelchair actually delivered was not ultra light. See id. Woods' grievance states, at most, a claim of negligence which does not rise to the level of a constitutional violation. See Estelle, 429 U.S. at 107.
Plaintiffs have also requested that all wheelchairs be equipped with pneumatic (air) tires. As explained by Williams, pneumatic tires have an inflated inner tube surrounded by a hard rubber coating. See Williams Aff. ¶ 29. Such tires are typically used on surfaces that are uneven, bumpy or grated. See id. There is no need for such tires at Green Haven because the flooring is made of cement. See id. In addition, when pneumatic tires were used at Green Haven, the inner tubes were often removed by inmates and used as weapons. See id. Given the lack of medical necessity and Green Haven's valid penological concerns, the decision to use solid tires does not constitute deliberate indifference.
Finally, there is substantial evidence that new wheelchairs are adjusted to the particular needs of the inmates. See Williams Aff. ¶ 20 ("When a new wheelchair arrives, the patient is placed in the wheelchair and all necessary adjustments are made to ensure that the wheelchair is the proper size, and is comfortable for the patient."). These adjustments are borne out by the numerous Ambulatory Health Record and NYSDOCS Request Report of Consultation forms attached to the Williams Affidavit. See Ex. B at 48-60, 64-87, 89-90, 92-99, 107-08, 110-128, 130-36. Such copious records of adjustments to, and evaluations of, wheelchairs negate a finding of deliberate indifference.
In sum, plaintiffs have not met the standard required for a preliminary injunction as they have not shown a substantial likelihood of success on the merits. Accordingly, their request for injunctive relief is denied.
II. CONCLUSION
For the foregoing reasons, plaintiffs' motion for a preliminary injunction is denied. The Clerk of the Court is directed to close this motion. A conference is scheduled for 3:00 p.m. on February 4, 2003 in Courtroom 12C at 500 Pearl Street.
SO ORDERED