Opinion
No. 03-CV-6485 CJS.
July 12, 2004
Anthony Morene, Pro se, 93-A-2151, Southport Correctional Facility, Pine City, New York, for plaintiff.
Kelly Ann McCarthy, Esq., Office of the New York State, Attorney General, Rochester, NY, for defendant.
DECISION AND ORDER
INTRODUCTION
This is an action in which the plaintiff, Anthony Morene ("plaintiff"), a prison inmate at Southport Correctional Staff, is suing for denial of medical treatment pursuant to 42 U.S.C. § 1983. Now before the Court are the following motions: 1) plaintiff's `motion [#2] for a preliminary injunction; 2) plaintiff's motion [#9] for a default judgment; 3) plaintiff's supplemental motion [#15] for a preliminary injunction; 4) defendants' motion [#16] to compel production of an executed medical release; and 5) plaintiff's motion [#23] to include an additional defendant in his motion for a preliminary injunction. For the reasons that follow, the applications are denied.
BACKGROUND
The facts underlying plaintiff's medical condition are well known to the Court and the parties, and were set forth in a prior Decision and Order of the Court, Morene v. Magee, No. 01-CV-6455 CJS, 2004 WL 951343 (W.D.N.Y. Apr. 5, 2004). It is sufficient here to note that in 1987, plaintiff sustained a gunshot wound to the head, which apparently left metal bullet fragments lodged in his head near his right ear. Specifically, the tiny fragments are lodged in the right temporal bone of plaintiff's skull, and in the "external auditory meatus," which is "the passage leading from the opening of the external ear to the eardrum." MERRIAM WEBSTER'S MEDICAL DESK DICTIONARY, p. 230 (1993). Plaintiff is suing the defendant medical providers, claiming that they have been deliberately indifferent to his serious medical needs, because they have refused his request for surgery to remove the fragments, despite the fact that he believes the fragments are causing him pain and sleeplessness.
Plaintiff commenced this action on October 3, 2003, and at the same time, filed the subject motion for a preliminary injunction [#2]. In support of that application, plaintiff recites that in January 2003, approximately fifteen years after his gunshot injury, a CAT scan revealed "a few small metal fragments" in his auditory meatus and temporal bone, and that he subsequently advised the defendants that he was experiencing pain and sleeplessness, which he attributed to the metal fragments. Plaintiff alleges that the pain medications he was given were ineffective, and that he has requested surgery or "any kind of further treatment" to relieve his pain. The injunctive relief requested is as follows: "Plaintiff respectfully requests that a preliminary injunction enjoining and restraining defendants from causing further damages pending a determination by the court of the validity of the plaintiff's claims to be [sic] granted by the court." Pl. Aff. in Support of Motion for Prelim. Injunction. However, casting aside this vague language, it is clear from plaintiff's papers that what he actually wants this Court to do is to direct defendants to arrange surgery to remove the fragments. Plaintiff contends that he will suffer irreparable harm if an injunction is not granted, because his medical condition causes him pain and sleeplessness, and because the deprivation of a constitutional right is an irreparable harm.
On December 4, 2003, the Court issued a Decision and Order [#5], noting, with respect to the preliminary injunction request, that the Court would afford plaintiff an opportunity to be heard via a video conference, but that plaintiff had not served the application on the defendants. By a Decision and Order, the Court directed defendants to respond to the preliminary injunction application "within fourteen days after service of plaintiff's papers," and further directed the Clerk of the Court to arrange with the U.S. Marshal to effect service of the summons, complaint, preliminary injunction motion, and Decision and Order on defendants. The docket indicates that defendants John Alves ("Alves") and Nurse Practitioner Northrop ("Northrop") were served with "summonses" on February 2, 2004, and that defendant Lester Wright ("Wright") was served with a "summons" on March 4, 2004.
On March 3, 2004, one day before Wright was even served with a summons, plaintiff filed an application [#9] captioned as a motion for default judgment against all three defendants, on the grounds that plaintiffs had not responded to his preliminary injunction application within fourteen days. Subsequently defendants filed and served answers to the complaint, but did not respond to the preliminary injunctive motion. On or about April 9, 2004, in response to a telephone inquiry from a member of the Court's staff, defendants' counsel indicated that defendants had never been served with either the application for injunctive relief or the Court's Decision and Order. Accordingly, on April 19, 2004, the Court issued an order directing the Clerk of the Court to serve the preliminary injunction motion on defendants, and directing defendants to respond to both the preliminary injunction motion and the motion for default judgment. On April 28, 2004, plaintiff filed an additional "motion" for injunctive relief [#15], which is actually just more argument in support of his original application. On May 3, 2004, defendants filed a response to the motions for a preliminary injunction and default judgment, as well as an application [#16] for an order directing plaintiff to provide a release of his medical records. In opposition to the motion for default judgment, defendants assert that when they were initially served with the summons and complaint in this action, they were not served with either the preliminary injunction application or the Court's Decision and Order, which directed defendants to answer the motion within fourteen days. On or about May 6, 2004, the Court received from plaintiff a copy of a letter in which he apparently provided defendants with the medical records release which they were seeking.
On May 11, 2004, plaintiff filed an application [#23] seeking to add his "ENT" (ear, nose, and throat) doctor to the preliminary injunction application, even though that doctor is not a defendant in this action. On May 21, 2004, plaintiff filed a motion [#29] to amend his complaint, seeking to add the unnamed ENT doctor as a defendant in this action, and the application was scheduled to be heard before the Honorable Jonathan W. Feldman, United States Magistrate Judge, on July 8, 2004.
On May 27, 2004, having obtained plaintiff's medical records, defendants filed a further response to the preliminary injunction motion, in which they deny that they have ever refused plaintiff medical treatment. For example, Alves insists that defendants have been attempting to treat plaintiff for his complaints of pain, and that in that regard, they have provided him with various pain medications, and have twice sent him for CAT scans and examinations by an Otolaryngologist. However, the Otolaryngologist, Dr. Pathak, does not believe that surgery is warranted, and in fact he has opined that because the metal fragments are so minuscule, he doubts that they could be located and removed surgically. As to that, Alves indicates that in March 2003, he actually scheduled plaintiff to have surgery to remove the fragments, but cancelled the surgery after Pathak informed him that the fragments did not need to be removed. Alves further indicates that plaintiff only sporadically complains of pain or difficulty sleeping, does not appear to be in pain or to be suffering the effects of loss of sleep, and seems fixated on having the tiny metal fragments removed, even though there is no medical basis for doing so. Alves suggests that plaintiff's concerns may be the result of mental health issues, and in that regard he has submitted copies of letters that plaintiff wrote in 2003 to both New York State Governor George Pataki, and to the Department of Correctional Services Inspector General, complaining that Southport's superintendent, Michael McGinnis ("McGinnis"), had implanted a "painful metal tracking device" in his ear, and that McGinnis was preventing Southport's medical staff from removing the device.
ANALYSIS
At the outset, the Court notes that all but one of the motions referenced above may be denied summarily. First, plaintiff's motion for default judgment [#9] on his request for injunctive relief must be denied, since it is undisputed that, when plaintiff filed the application for default judgment, defendants had not been served with either the application for injunctive relief or this Court's Order directing them to respond to the motion, and thus they were not in default. Plaintiff's second "motion" [#15] for injunctive relief must also be denied, since it is not a separate motion at all, but is merely additional legal argument in support of his main application. Defendant's application seeking plaintiff's medical release [#16] must be denied as moot, since plaintiff voluntarily provided the medical release. And finally, plaintiff's motion to add the "ENT doctor" to his preliminary injunction motion [#23] must be denied, since the ENT doctor is not presently a party to the action.
As noted above, plaintiff's application to amend the complaint [#29] is not presently before the Court, and will be addressed by Magistrate Judge Feldman.
The Court will now consider plaintiff's application for a preliminary injunction [#2]. The law to be applied here is well settled:
In most cases, a party seeking to obtain a preliminary injunction must establish that it will suffer irreparable harm in the absence of an injunction and demonstrate either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly in the movant's favor.
* * *
In some circumstances, an even higher standard applies. The moving party must make a "clear" or "substantial" showing of a likelihood of success where (1) the injunction sought will alter, rather than maintain, the status quo — i.e., is properly characterized as a "mandatory" rather than "prohibitory" injunction; or (2) the injunction sought will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits.Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citations and internal quotation marks omitted). Here, the higher standard applies, since plaintiff is seeking a mandatory injunction, which, by requiring defendants to provide him with surgery, would both alter the status quo and provide him with the relief he is seeking.
The standard to be applied in a case involving an alleged Eighth Amendment violation arising from denial of medical care is well settled:
In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to his serious medical needs. This standard incorporates both objective and subjective elements. The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind.
Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation. [T]he Supreme Court [has] explained that the Eighth Amendment's prohibition on cruel and unusual punishments encompasses the deliberate failure to treat a prisoner's serious illness or injury resulting in the infliction of unnecessary pain and suffering. Because society does not expect that prisoners will have unqualified access to health care, a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care. Similarly, a prisoner must demonstrate more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Amendment liability. An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or safety, a state of mind equivalent to the familiar standard of `recklessness' as used in criminal law.Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations and internal quotations omitted). Courts have repeatedly held that disagreements over treatment do not rise to the level of a Constitutional violation. See, Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("It is well-established that mere disagreement over the proper treatment does not create a constitutional claim."). Similarly, negligence constituting medical malpractice, without more, will not establish a constitutional claim. Id. (citation omitted).
Applying these legal principles to the facts of this case, the Court finds that plaintiff has not demonstrated his entitlement to an injunction. Most significantly, the Court finds that he has not made a clear or substantial showing that he is likely to prevail on the merits of his claim. Rather, he merely insists that the metal fragments, which apparently caused him no problems whatsoever for approximately thirteen years, are now causing him pain and sleeplessness, and that surgery is required. As discussed above, the medical evidence is to the contrary, and it is undisputed that defendants have been attempting to address plaintiff's complaints with a variety of medications. Accordingly, because mere disagreements about a particular medical treatment do not rise to the level of a constitutional violation, it appears unlikely that plaintiff will prevail on the merits of his claim, unless he can obtain competent medical proof to refute defendants' position.
CONCLUSION
For all of the foregoing reasons, motions [#2], [#9], [#15], [#16], and [#23] are denied.
So Ordered.