Watson v. Moscicki et al

Filing 222

DECISION AND ORDER denying 183 Motion for Hearing; denying 183 Motion for Preliminary Injunction. Case is referred back to Magistrate Judge McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 9/29/2011. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

CHARLES W ATSON,
Plaintiff,
DECISION AND ORDER
08-CV-0960A
v.
M.D. LESTER N. W RIGHT et al.,
Defendants.

I.

INTRODUCTION
Plaintiff, an inmate at Clinton Correctional Facility (“Clinton”), commenced this

action pro se pursuant to 42 U.S.C. §1983. He has been granted leave to file a
Fourth Amended Complaint (Docket Nos. 177, 186).
Plaintiff is diagnosed with Hepatitis C and suffers from liver disease. His
current Fourth Amended Complaint alleges, inter alia, that defendants have been
deliberately indifferent to his medical needs while incarcerated at the Lakeview,
Attica and Clinton Correctional Facilities since July 26, 2007. (Docket No. 212).
Plaintiff has filed his fourth motion for a preliminary injunction and expedited
hearing (Docket No. 183). His prior three motions, which sought a variety of relief,
including to be seen by specialists (hepatologist, gastroenterologist, neurologist), to
receive anendoscopy and liver biopsy, and to cease the interruption of his medical

treatment and prescriptions during facility transfers, have all been denied (Docket
Nos. 74, 110, 169).
Plaintiff’s present motion seeks:
1) “a shower pass at Clinton . . . to bathe three times a
week as opposed to the scheduled one shower a week .
. . due to Plaintiff’s condition of pruritus which result in dry,
itchy, broken scarred skin . . . [and] Plaintiff must stand in
. . . puddles which aggravate the Plaintiff’s onychomycosis
. . . which destroys his toenails”;
2) to be “seen by a dermatologist to offer treatment for a
worsening itching condition; and issued skin lotion to
ameliorate the . . . skin condition”;
3) to be “issued the Ensure nutritional supplement
pursuant to the specialist’s direction due to the Plaintiff’s
chronic gastritis and the ensuing recurrent nausea and
inability to eat at times”; and
4) to be “assigned another primary care provider who will
adhere to the DOCS Patient Bill of Rights.”
Pl. Notice of Motion (Docket No. 183) at 1-2.1
II.

DISCUSSION
A.

General Legal Principles–Preliminary Injunction

A preliminary injunction “is an extraordinary remedy and should not be
routinely granted.” Patton v. Dole, 806 F.2d 24, 28 (2d Cir.1986). “In the prison
context, a request for injunctive relief must always be viewed with great caution so

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In July, 2011, the New York State Departm ent of Correctional Services m erged with the Division
of Parole and is now referred to as the New York State Departm ent of Corrections Services and
Com m unity Supervision ("DOCCS"). See
http://www.docs.state.ny.us/FactSheets/DOCS-Parole-Merger.htm l

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as not to immerse the federal judiciary in the management of state prisons.” Fisher
v. Goord, 981 F. Supp. 140, 167 (W .D.N.Y. 1997).
“When seeking a preliminary injunction that will affect government action taken
in the public interest pursuant to a statutory or regulatory scheme the moving party
must show: (1) it will suffer irreparable harm absent the injunction and (2) a
likelihood of success on the merits . . . . However, where, as here, the injunction
sought will alter rather than maintain the status quo, the movant must show clear or
substantial likelihood of success . . . . As a final consideration, whenever a request
for a preliminary injunction implicates public interests, a court should give some
consideration to the balance of such interests in deciding whether a plaintiff's
threatened irreparable injury and probability of success on the merits warrants
injunctive relief.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d
Cir.1999).
The Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(a) (2), requires
that “preliminary injunctive relief must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires preliminary relief, and be the
least intrusive means necessary to correct the harm.”
Irreparable Harm
“To establish irreparable harm in the context of a medical claim, plaintiff must
show that he has a medical condition which is likely to become significantly worse
without some definite course of treatment.” Burgess v. Goord, 2005 W L 1458236,
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*2 (N.D.N.Y. 2005). “Generally, an alleged violation of constitutional rights, such as
those encompassed by the Eighth Amendment, creates a presumption of irreparable
harm.” McKenna v. Wright, 2002 WL 338375, *4 (S.D.N.Y. 2002). “However, since
the movant must show that the alleged irreparable harm is imminent, and not remote
or speculative, we cannot rest a finding of irreparable harm solely on past conduct,
even where a plaintiff has alleged that such conduct violated the Eighth
Amendment.” Id.
Plaintiff complains that he suffers from dry, itchy skin (pruritus) as a result of
chronic Hepatitis C infection and states that the environmental conditions at Clinton
Correctional Facility aggravate his skin condition. Affidavit of Charles W atson
(“W atson Aff.”) ¶ 5 (Docket No. 183). Plaintiff seeks to treat his skin condition with
lotion and frequent showers. Id., ¶ 7. By his own admission, plaintiff is prescribed
antihistamines to treat his pruritus symptoms. Id., ¶ 5; see also Declaration of Dr.
Vonda Johnson (“Johnson Decl.”) ¶ 10 (Docket No. 192-1). Moreover, increased
showers would not alleviate Plaintiff’s skin condition, but would actually exacerbate
it, and is not medically indicated for dry skin. Id., ¶ 11. Plaintiff does have access to
showers, and does not have any medical condition which prevents him from using
the communal showers at Clinton. He has been advised of this by medical staff. Id.,
¶ 12-13.
W hile he requests lotion to treat his itching skin, Plaintiff has been advised that
he is able to purchase lotion from the commissary. W atson Decl. ¶ 11. In the
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absence of a diagnosed skin condition, as in Plaintiff’s case, medical providers at
Clinton do not prescribe medicated lotion. Johnson Decl. ¶ 16. Further, because
Plaintiff has been repeatedly examined at Clinton and does not have any diagnosed
skin condition, there is no reason for him to receive a referral to a specialist. Id., ¶
30. Even if Plaintiff were to be diagnosed with dry skin, which he has not been, dry
skin is not outside the area of a general practitioner and a referral would not be
warranted. Id. Accordingly, Plaintiff has failed to establish that he is likely to suffer
irreparable harm if he is not assigned a shower pass for medical purposes 2 , referred
to a dermatologist, or prescribed lotion for his pruritus.
Likewise, Plaintiff is also being treated for his gastritis. W atson Decl. ¶ 15.
Such treatment includes being on a therapeutic, high fiber, low-fat diet, and being
provided a proton pump inhibitor to control stomach acids. Id., ¶ 17; Johnson Decl.,
¶ 29. W hile Plaintiff asserts that he requires Ensure, a liquid nutritional supplement,
to aid in the “absorption of nutrients and alleviate his chronic fatigue,” W atson Decl.
¶ 17, it is policy at Clinton that medical providers must assess whether an inmate
has a poor or declining nutritional status prior to ordering Ensure. Pl. Ex. A7 (Docket
No. 183-1). Plaintiff does not meet the criteria for medically prescribed nutritional
supplementation. Pl. Ex. A8. W hile it is true that Plaintiff previously received Ensure,
he was taken off of it because his body mass index revealed that it was no longer

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Plaintiff also contends that the pooling water in the com m unal showers at Clinton aggravate his
onychom ycosis, or toneail fungus. W atson Decl. ¶ 9. He does not elaborate on this point, however, and
contrary to his assertion, pooling water does not aggravate toenail fungus. Johnson Decl. ¶ 14.

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medically necessary in that Plaintiff showed significant weight gain between October
13, 2010 and March 31, 2011, and is in fact considered obese. Johnson Decl. ¶¶ 2526. Plaintiff’s blood tests show no signs of nutritional deficit, Id., ¶ 27, and he
therefore does not establish that he is likely to suffer irreparable harm without the
Court’s intervention with respect to his desired nutritional regimen.
Finally, Plaintiff takes issue with the treatment he is being provided by Dr. Lee,
whom Plaintiff alleges “does not examine and touch black prisoners or communicate
with prisoners [and] therefore does not correctly diagnose, does not provide the
proper treatment, and certainly does not provide any prognosis.” W atson Aff. ¶ 18.
However, Plaintiff does not point to any objective deficiencies in Mr. Lee’s treatment,
and does not state that Dr. Lee has failed to diagnose any specific conditions. There
is therefore no reason for the Court to find that he is likely to suffer irreparable harm
from Lee’s medical care.
Likelihood of Success on the Merits
Plaintiff also fails to demonstrate a likelihood of success on the merits. The
standard for an Eighth Amendment claim of deliberate indifference consists of both
objective and subjective components. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir.1994), cert. denied, 513 U.S. 1154 (1995). Under the objective component, the
alleged medical need must be “sufficiently serious.” Id. A “sufficiently serious”
medical need is “a condition of urgency, one that may produce death, degeneration,
or extreme pain.” Id. “Factors that have been considered include the existence of an
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injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that significantly affects
an individual's daily activities; or the existence of chronic and substantial pain.”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). “The medical condition does
not have to occur immediately; it suffices if the condition presents itself ‘in the next
week or month or year.’” Moore v. McGinnis, 2004 W L 2958471, *6 (W .D.N.Y.2004).
To satisfy the subjective component, plaintiff must show that the defendant
officials acted with a “sufficiently culpable state of mind” in depriving him of adequate
medical treatment. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). “The
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.” Id.; see also Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir.2003), cert. denied, 543 U.S. 1093 (2005)
(likening the necessary state of mind to “the equivalent of criminal recklessness”).
In order to be found “sufficiently culpable”, the official must “know[ ] of and
disregard[] an excessive risk to inmate health or safety; [he] 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.” Farmer v. Brennan, 511 U.S. 825, 837
(1994).
Here, Plaintiff has failed to establish that his pruritus and gastritis are serious
medical conditions capable of producing death, degeneration, or extreme pain.
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“Complaints of abdominal pain, vomiting, heartburn, constipation, body odor and
extreme body heat did not constitute a serious medical need.” Ross v. McGinnis,
2004 W L 1125177, *10 (W .D.N.Y. 2004); Benitez v. Ham, 2009 W L 3486379, *11
(N.D.N.Y. 2009) (“plaintiff suffered from a severe body itch. W hile this condition was
undoubtedly unpleasant, it simply does not rise to the level of an Eighth Amendment
violation”). Even the Court were to assume that plaintiff's ailments constitute serious
medical conditions, he must still establish that defendants “acted with a sufficiently
culpable state of mind, i.e., deliberate indifference. He must therefore show that
prison officials intentionally denied, delayed access to, or intentionally interfered with
prescribed treatment.” Tafari v. Stein, 2009 W L 331378, *6 (W .D.N.Y. 2009).
Plaintiff’s own submissions indicate that he is in fact being treated for the
complained-of conditions. Though he may disagree with the specific course of
treatment that he has been receiving by medical staff at Clinton, this alone
insufficient to establish an Eighth Amendment violation, as it is well-settled that a
prisoner’s disagreement over treatment does not rise to the level of a Constitutional
violation. Graham v. Gibson, 2007 W L 3541613, *5 (W .D.N.Y. 2007). “The
Constitution does not require that an inmate receive a particular course of treatment,
or that an inmate see a requested specialist.” Tafari, 2009 W L 331378 at *7. Rather,
“[d]eterminations made by medical providers within their discretion are given a
presumption of correctness when it concerns the care and safety of patients.”
Mendoza v. McGinnis, 2008 W L 4239760, *11 (N.D.N.Y. 2008).
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Plaintiff’s complaints of itching skin and gastritis have been addressed by the
medical staff at Clinton. An issue of medical judgment, as is the case here, “is
precisely the sort of issue that cannot form the basis of a deliberate indifference
claim.” Hernandez, 341 F.3d 137 at 147. W hile Plaintiff may object to the type of
treatment ordered, that is an issue of medical judgment which cannot be challenged
under the Eighth Amendment. Id.
Finally, to the extent that Plaintiff alleges that Dr. Lee does not following
DOCCS policy regarding its “Patients’ Bill of Rights,” such a claim fails to state a
cause of action under 42 U.S.C. § 1983. A violation of a state law or regulation, in
and of itself, does not give rise to liability under § 1983. Doe v. Conn. Dep’t of Child
& Youth Svcs., 911 F.2d 868, 869 (2d Cir. 1990).
Under these circumstances, Plaintiff has not established that defendants were
deliberately indifferent to his medical condition and therefore cannot demonstrate a
likelihood of success on the merits so as to warrant a preliminary injunction.
Plaintiff’s motion is denied.

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IV.

CONCLUSION
For all of the foregoing reasons, the Court denies Plaintiff’s Motion for a

Preliminary Injunction and Expedited Hearing (Docket No. 183).
This case is referred back to Magistrate Judge McCarthy for further
proceedings.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:September 29, 2011

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