Rush v. Fisher et al
Filing
75
MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above, the plaintiff's motion for a preliminary injunction is denied without prejudice. (Signed by Judge John G. Koeltl on 12/22/2011) (cd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
BASHEEN RUSH,
Plaintiff,
09 Civ. 9918 (JGK)
- against -
MEMORANDUM OPINION AND
ORDER
BRIAN FISCHER, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Basheen Rush, who is currently incarcerated
at Sing Sing Correctional Facility (“Sing Sing”), brings this
motion for a preliminary injunction pursuant to Federal Rule of
Civil Procedure 65(a).
The plaintiff seeks an injunction
enjoining the defendants from denying him an effective course of
medical treatment for the chronic wrist and back pain he suffers
and ordering the defendants to reinstate his prior medication
regimen, which included the prescription of Percocet.
I.
The plaintiff, Basheen Rush, is currently incarcerated at
Sing Sing.
The plaintiff suffers from extreme and chronic pain
in his back and wrist.
(Aff. of Basheen Rush in Supp. of Pl.’s
Mot. for Prelim. Inj. (“Rush Aff.”) ¶¶ 2-3.)
The plaintiff arrived at Sing Sing on October 6, 2011,
after being transferred from Coxsackie Correctional Facility
(“Coxsackie”).
(Rush Aff. ¶ 1; Decl. of Razia Ferdous, M.D. in
Opp. to Pl.’s Mot. for Prelim. Inj. (“Ferdous Decl.”) ¶ 7.)
At
Coxsackie, the plaintiff had been prescribed Percocet to manage
his pain and was taking 5/325 mg twice a day, with instructions
that the medication be administered in liquefied form and
consumed by the plaintiff in front of medical staff.
Decl. ¶ 6.)
(Ferdous
Upon his transfer to Sing Sing, the plaintiff was
initially continued on Percocet.
(Ferdous Decl. ¶ 7.)
However, on October 11, 2011, the plaintiff had a follow-up
appointment with a medical provider, who explained that the
plaintiff would be weaned off Percocet over a two-week period.
(Ferdous Decl. ¶ 8.)
On October 27, 2011, the plaintiff was
discontinued from Percocet.
(Ferdous Decl. ¶ 9.)
The defendants submit a declaration from Dr. Razia Ferdous
who states that, to replace Percocet, the plaintiff was given
Baclofen twice a day in combination with Ibuprofen.
Decl. ¶ 8.)
(Ferdous
Dr. Ferdous states that Baclofen is a non-narcotic
pain medication used to treat back pain and muscle strain which
is effective in managing pain when used in combination with
Ibuprofen.
(Ferdous Decl. ¶ 8.)
The plaintiff contends that he
is no longer receiving the Baclofen and Ibuprofen and that he is
currently not being provided with any pain medication.
of Basheen Rush dated Nov. 23, 2011.)
2
(Letter
The plaintiff brings this motion for a preliminary
injunction enjoining the defendants from denying him an
effective course of medical treatment to manage his pain.
In
particular, the plaintiff seeks to have his prior course of
treatment, in which he was prescribed Percocet, reinstated.
II.
A.
The standards that govern the issuance of a preliminary
injunction are well established.
Ordinarily, a party seeking a
preliminary injunction must show:
“(1) a likelihood of
irreparable harm in the absence of the injunction; and (2)
either a likelihood of success on the merits or sufficiently
serious questions going to the merits to make them a fair ground
for litigation, with a balance of hardships tipping decidedly in
the movant’s favor.”
Cir. 2008).
Doninger v. Niehoff, 527 F.3d 41, 47 (2d
However, “[w]here a moving party challenges
governmental action taken in the public interest pursuant to a
statutory or regulatory scheme,” as does the plaintiff here,
“the moving party cannot resort to the ‘fair ground for
litigation’ standard, but is required to demonstrate irreparable
harm and a likelihood of success on the merits.”
Jolly v.
Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (internal quotation
marks and citations omitted).
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Moreover, where the plaintiff seeks a mandatory injunction
– one that “alter[s] the status quo by commanding some positive
act” – an even higher standard applies.
Tom Doherty Assocs.,
Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Namely, the plaintiff must make a “clear” or “substantial”
showing of likelihood of success on the merits or show that
“extreme or very serious damage” would result in the absence of
preliminary relief.
Jolly, 76 F.3d at 473; Tom Doherty, 60 F.3d
at 33-34; Cherry River Music Co. v. Simitar Entm’t Inc., 38 F.
Supp. 2d 310, 316 (S.D.N.Y. 1999).
In this case, the relief
sought by the plaintiff is properly characterized as a mandatory
rather than a prohibitory injunction.
The plaintiff seeks an
injunction that would alter the status quo by departing from his
current course of treatment and ordering the reinstatement of
his prior medication regimen which included the prescription of
Percocet.
See Jolly, 76 F.3d at 474 (injunction sought by
prisoner was properly characterized as mandatory injunction
where relief requested would have required shift in established
Department of Correctional Services policy).
Accordingly, the
plaintiff must meet this more stringent standard.
Because the plaintiff is proceeding pro se, his submissions
must be “read liberally and should be interpreted ‘to raise the
strongest arguments that they suggest.’”
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Graham v. Henderson,
89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994)).
B.
The plaintiff claims that the defendants violated the
Eighth Amendment by providing him with inadequate medical
treatment.
“The Cruel and Unusual Punishments Clause of the
Eighth Amendment imposes a duty upon prison officials to ensure
that inmates receive adequate medical care.”
Goord, 467 F.3d 263, 279 (2d Cir. 2006).
Salahuddin v.
“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.’”
Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)).
In order to prevail on a deliberate indifference
claim, a prisoner must satisfy a two-part test:
first, the
“objective” prong requires that the deprivation be “sufficiently
serious”; and second, the “subjective” prong requires that the
charged official act with a “sufficiently culpable state of
mind.”
See, e.g., Salahuddin, 467 F.3d at 279-80; Johnson v.
Wright, 412 F.3d 398, 403 (2d Cir. 2005); Chance, 143 F.3d at
702.
With respect to this second prong, the prisoner must show
more than mere negligence in diagnosis or treatment.
See
Estelle, 429 U.S. at 105-06; Smith v. Carpenter, 316 F.3d 178,
5
184 (2d Cir. 2003).
Instead, the prisoner must show that the
official “[knew] of and disregard[ed] an excessive risk to
inmate health or safety . . . . ”
Farmer v. Brennan, 511 U.S.
825, 837 (1994); Chance, 143 F.3d at 702; Smith, 316 F.3d at
184.
In this case, the plaintiff asserts that the defendants
acted with deliberate indifference to his serious medical needs
when they discontinued his course of treatment which had
included the prescription of Percocet.
However, although the
plaintiff was taken off Percocet, he was provided with another
medication regimen consisting of Baclofen and Ibuprofen to
manage his pain. 1
(Ferdous Decl. ¶ 8.)
The decision to
prescribe one form of pain medication in place of another does
not constitute deliberate indifference to a prisoner’s serious
medical needs.
See, e.g., Hill v. Curcione, 657 F.3d 116, 123
(2d Cir. 2011) (prisoner’s claim that Motrin medication was
1
In his reply papers in connection with this motion, the
plaintiff asserts that he is no longer receiving the Baclofen
and Ibuprofen to treat his pain and that he has been provided
with no pain medication at all. (Letter of Basheen Rush dated
Nov. 23, 2011.) However, the plaintiff submits no affidavit or
medical records to support this assertion, other than two labels
from his prescriptions indicating that there were to be “(0)
Refills.” (Letter of Basheen Rush dated Nov. 23, Ex. 1.) In
contrast, the declaration of Dr. Ferdous indicates that the
plaintiff has been and continues to be provided with a nonnarcotic alternative to manage his pain. (Ferdous Decl. ¶¶ 4,
8, 11.) If in fact the plaintiff is denied all pain medication
in the future, he can renew his motion for a preliminary
injunction at that time.
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insufficient and that stronger pain medication was required for
his wrist injuries did not state a deliberate indifference
claim); Reyes v. Gardener, 93 F. App’x 283, 285 (2d Cir. 2004)
(summary order) (defendants’ decision to prescribe Tylenol or
Motrin to manage prisoner’s pain and to administer Demerol or
Morphine only when necessary did not constitute deliberate
indifference); Harris v. Westchester Cnty. Med. Ctr., No. 08
Civ. 1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) (“The
failure to provide stronger pain medication does not constitute
deliberate indifference.”); Wright v. Genovese, 694 F. Supp. 2d
137, 160 (N.D.N.Y. 2010) (“Differences in opinions between a
doctor and an inmate patient as to the appropriate pain
medication clearly do not support a claim that the doctor was
deliberately indifferent to the inmate’s ‘serious’ medical
needs.”); Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y.
2004) (medical providers’ decision not to prescribe stronger
pain medication than Tylenol to address prisoner’s back
condition did not state a claim for deliberate indifference);
Ortiz v. Makram, No. 96 Civ. 3285, 2000 WL 1876667, at *9-10
(S.D.N.Y. Dec. 21, 2000) (doctor’s decision to prescribe Motrin
in lieu of Percocet for prisoner’s medical condition did not
amount to deliberate indifference, even when that decision
contravened recommendation of specialist).
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The plaintiff has made no showing that the decision to
prescribe Baclofen and Ibuprofen in lieu of Percocet deviated
from reasonable medical practice for the treatment of his pain,
much less that the defendants acted with a culpable state of
mind in making this decision.
To the contrary, Dr. Ferdous
asserts that discontinuing the use of Percocet minimizes health
risks such as liver damage that can result from prolonged use of
Percocet and avoids the possibility of abuse of narcotic pain
medication.
(Ferdous Decl. ¶ 5.)
The plaintiff’s allegations
demonstrate a “mere disagreement over the proper treatment” of
his pain, which “does not give rise to an Eighth Amendment
violation.”
Chance, 143 F.3d at 703; see also Veloz, 339 F.
Supp. 2d at 525 (“The Eighth Amendment is not implicated by
prisoners’ complaints over the adequacy of the care they
received when those claims amount to disagreement over the
appropriateness of a particular prescription plan.”).
“Issues
of medical judgment cannot be the basis of a deliberate
indifference claim where evidence of deliberate indifference is
lacking.”
Hill, 667 F.3d at 123.
Thus, the plaintiff has not demonstrated a likelihood of
success on the merits, much less a “clear” or “substantial”
showing to this effect.
Because the plaintiff must demonstrate
a likelihood of success on the merits in order to obtain an
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injunction challenging governmental action, Jolly, 76 F.3d at
473, the plaintiff's motion for a preliminary injunction is
denied. 2
The denial
without prejudice because the plaintiff
may renew the motion if he is denied adequate medical treatment
the future.
CONCLUSION
The Court has considered all of the arguments of the
parties.
To the extent not specifically addressed above, the
remaining arguments are either moot or without merit.
For the
reasons explained above, the plaintiff's motion for a
preliminary injunction is denied without prejudice.
SO ORDERED.
Dated:
New York, New York
Decembe~j~ 2011
ohn G. Koeltl
States District Judge
2 The defendants also contend that the motion for a preliminary
injunction should be denied because the plaintiff has failed to
serve the proper defendants and has failed to allege that the
defendants were personally involved in the purported
constitutional deprivation.
Because the Court denies the motion
for a preliminary injunction on the merits, it is unnecessary to
reach these arguments.
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