Parra v. Wright et al

Filing 27

DECISION AND ORDER denying 19 Motion for TRO. Signed by Hon. Charles J. Siragusa on 2/4/13. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
EDWIN PARRA,
Plaintiff
DECISION AND ORDER
-vs11-CV-6270 CJS
DR. LESTER WRIGHT, et al.,
Defendants
__________________________________________
INTRODUCTION
Edw in Parra (“ Plaintiff” ) is an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“ DOCCS” ), and
Defendants are all medical personnel employed by DOCCS. Now before the Court
is Plaintiff’ s application for preliminary injunctive relief. (Docket No. [#19]). The
application is denied.
BACKGROUND
Plaintiff suffers from degenerative disease in his lumbo-sacral spine. On May
26, 2011, Plaintiff commenced this action, proceeding pro se. At that time,
Plaintiff w as housed at Southport Correctional Facility (“ Southport” ). The
Complaint [#1] alleges, pursuant to 42 U.S.C. § 1983, that Defendants denied him
medication and treatment for his spine condition at Southport, in violation of the
Eighth Amendment. More specifically, the Complaint alleges that at a different
correctional facility, prior to Plaintiff being transferred to Southport in April 2011,
he w as receiving Ultram and Neurontin pain medications, physical therapy and a

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back brace, but that upon his arrival at Southport, medical staff discontinued the
medications and therapy and confiscated his brace.
On September 17, 2012, Plaintiff filed the subject application (Docket No.
[#19]) for preliminary injunctive relief, seeking an order directing medical staff at
Southport to provide him w ith the follow ing: “ previously prescribed medications,”
presumably meaning Ultram and Neurontin; a transcutaneous electrical nerve
stimulation (“ TENS” ) unit; “ physical therapy” ; “ double mattress” ; and a “ back
brace.” In support of the application, Plaintiff states, as he does in his Complaint,
that medical staff at Southport are treating him differently than medical staff at
other DOCCS facilities in w hich he has been housed. Plaintiff further states that on
more than one occasion w hen he has been transferred to Southport, Defendant
Wesley Canfield, M.D. (“ Canfield” ) has discontinued all of his pain medications and
treatments.
On September 19, 2012, Canfield responded to Plaintiff’ s application by
pointing out that on April 9, 2012, in connection w ith a motion to dismiss, he had
submitted an affidavit [#14-3] in w hich he agreed that he had discontinued
Plaintiff’ s medications and treatments, because they w ere unnecessary. In that
regard, Canfield stated that he review ed Plaintiff’ s medical file and determined that
Plaintiff’ s prescribed pain medications, Neurontin and Ultram, w ere not needed,
since a 2009 nerve conduction study w as normal, and a 2008 MRI test show ed
only degenerative disc disease w ith “ minimal” nerve root impingement. Canfield
also stated that in making his decision, he had considered Plaintiff’ s history of drug
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abuse and smuggling, and decided that Ultram and Neurontin w ere “ counter
indicated” for Plaintiff. How ever, Plaintiff pointed out that Canfield did not explain
w hy other doctors employed by DOCCS apparently disagreed w ith his assessment.
Consequently, on October 3, 2012, the Court issued a Decision and Order
[#22] directing Canfield to provide additional information. Specifically, the Decision
and Order stated, in pertinent part:
[I]t is hereby
ORDERED, that on or before October 16, 2012, in connection w ith the
subject motion for preliminary injunctive relief, Defendants are to file
and serve an affidavit, from a medical doctor w ith personal know ledge
of Plaintiff’ s condition, and attach relevant portions of Plaintiff’ s
ambulatory health record, explaining: 1) any particular treatments that
have been recommended or prescribed by any doctor, w hether or not
employed by DOCCS, for Plaintiff’ s back condition; and 2) w hether
Canfield’ s decision to stop Plaintiff’ s treatments is consistent w ith
those recommendations/prescriptions, and if not, w hy not; and it is
further
ORDERED, that on or before October 31, 2012, Plaintiff shall file and
serve any response.
Decision and Order [#22].
On October 16, 2012, Dr. Canfield filed a supplemental declaration [#23].
Canfield stated that w hen Plaintiff arrived at Southport in April 2012, from Five
Points Correctional Facility (“ Five Points” ), doctors at Five Points had been
prescribing Plaintiff Neurontin, Ultram and a TENS unit, but not a double mattress.
Canfield indicated, though, that w ith the exception of the TENS unit, w hich Plaintiff

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received at Southport, he discontinued those treatments, for several reasons,
including the follow ing: 1) instead of Neurontin and Ultram, he directed that
Plaintiff receive non-steroidal anti-inflammatory drugs (“ NSAIDS” ), w hich produce
the same results as Ultram and Neurontin but do not have the same serious
negative side effects; 2) Neurontin is not appropriate for Plaintiff in any event, since
he does not have neurologic pain in his legs; 3) Plaintiff has a “ significant history of
drug-seeking and drug abuse,” and Utram has a chemical structure similiar to
opioids, w hich makes the drug desirable to inmates w ho w ant to abuse the drug; 4)
in 2012 the FDA cautioned against prescribing Ultram to addiction-prone patients;
5) Ultram can increase a patient’ s risk of suicide; 6) Plaintiff may be malingering to
obtain the medication, since he is still able to play basketball and softball; and 7)
there is no medical literature to support Plaintiff’ s belief that a “ double mattress” is
appropriate for back pain.
On October 16, 2012, Plaintiff filed a declaration [#24], apparently w ritten
before he received Canfield’ s affidavit [#23], in w hich he refers to treatment
recommendations that have allegedly been made by other doctors, and states that
“ Dr. Canfield and staff ha[ve] prescribed many medications and treatments, other
than w hat w as previously prescribed . . . even though they have not given me any
real relief.” Id. at ¶ 6.
On October 23, 2012, Plaintiff filed another declaration [#25], that w as
apparently drafted after receiving Canfield’ s affidavit [#23]. Plaintiff indicates, inter
alia, that NSAIDS are not appropriate to treat him, and that Canfield is slandering
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him by suggesting that he is possibly malingering to obtain drugs. In addition,
Plaintiff states that he no longer plays sports. Plaintiff also suggests, incorrectly in
the Court’ s view , that Canfield failed to respond appropriately to the Court’ s
Decision and Order [#22].
On December 10, 2012, Plaintiff notified the Court that he had been
transferred to Attica Correctional Facility (“ Attica” ). On January 22, 2013, the
Court received a letter from Plaintiff, w ho is still housed at Attica, in w hich he now
contends that the medical staff at Attica are failing to provide him w ith appropriate
medical care. Plaintiff states that, similar to Canfield, the medical staff at Attica
are denying him the medications and treatments that he w as receiving prior to
being transferred to Southport in 2012. Plaintiff states that he has been to “ sick
call” at Attica several times, but is not obtaining relief.
DISCUSSION
At the outset, the Court will rule on Plaintiff’s application notwithstanding the fact
that he has now been transferred from Southport to Attica, which would ordinarily moot
his application. See, Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (“It is settled in
this Circuit that a transfer from a prison facility moots an action for injunctive relief
against the transferring facility.”) (citations omitted). On this point, “[a]n exception exists
where a claim is ‘capable of repetition, yet evading review.’” Yergeau v. Vermont Dept. of
Corrections, Civil Action No. 5:09-CV-141, 2010 WL 1472899 at *2 (D.Vt. Mar. 8, 2010).
The Court finds that such exception exists here, since DOCCS could, in theory, transfer
Plaintiff to evade review, and Plaintiff contends that he is still being denied appropriate

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medical treatment at Attica.
The standard to be applied when considering an application for preliminary
injunctive relief is well settled:
A party seeking a preliminary injunction ordinarily 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. When the movant
seeks a 'mandatory' injunction-that is, as in this case, an injunction that will
alter rather than maintain the status quo-[he] must meet the more rigorous
standard of demonstrating a 'clear' or 'substantial' likelihood of success on
the merits.
Doninger v. Niehoff, 527 F.3d 41,47 (2d Cir. 2008) (citations omitted). A district court
may deny a motion for preliminary injunctive relief without a hearing, and its decision to
do so is reviewed for an abuse of discretion. Wall v. Construction & Gen. Laborer's
Union, No. 036091, 80 Fed.Appx. 714, 2003 WL 22717669 at *1 (2d Cir. Nov. 17, 2003).

Violation of a constitutional right is considered "irreparable harm." Jolly v.
Coughlin, 76 F.3d 468, 482 (2d Cir.1996) ("The district court ... properly relied on the
presumption of irreparable injury that flows from a violation of constitutional rights."); see
also, Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.1998) ("In the context of
a motion for a preliminary injunction, violations of First Amendment rights are commonly
considered irreparable injuries.") (citation and internal quotation marks omitted).
Accordingly, to the extent that Plaintiff’s Eighth Amendment rights were being violated,
that would establish irreparable harm.
However, the Court finds that Plaintiff has not shown “either a likelihood of
success on the merits or sufficiently serious questions going to the merits to make them
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a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's
favor.” In that regard, the legal standard applicable to Eighth Amendment medical
claims is well settled in this Circuit:
To substantiate an Eighth Amendment claim for medical indifference, a
plaintiff must prove that the defendant was deliberately indifferent to a
serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834–35, 114
S.Ct. 1970, 128 L.Ed.2d 811 (1994). A deliberate indifference claim
requires a showing of both objective and subjective elements. Smith v.
Carpenter, 316 F.3d 178, 183–84 (2d Cir.2003). “Objectively, the alleged
deprivation must be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration or extreme pain
exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citation and
internal quotation marks omitted). Where the allegation is that the
defendant failed to provide any treatment for the medical condition, “courts
examine whether the inmate's medical condition is sufficiently serious.”
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006). Where the
challenge is to the adequacy of the treatment provided, such as in cases
where treatment is alleged to have been delayed or interrupted, the
seriousness inquiry focuses on “the particular risk of harm faced by a
prisoner due to the challenged deprivation of care, rather than the severity
of the prisoner's underlying medical condition, considered in the abstract.”
Smith, 316 F.3d at 186.1 Moreover, “a prisoner does not have the right to
choose his medical treatment as long as he receives adequate treatment.”
Hill v. Curcione, 657 F.3d 116, 123 (2d Cir.2011); see also Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir.1998).
“Subjectively, the official charged ... must act with a sufficiently culpable
state of mind.” Curcione, 657 F.3d at 122 (citation and internal quotation
marks omitted); see also Chance, 143 F.3d at 703. A person acts with
deliberate indifference to an inmate's health or safety only if he “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

1

In the instant case, Plaintiff’s challenge is to the “adequacy of the treatment provided,” since he
alleges that Defendants interrupted treatments that were already in place.

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inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970.
Hanrahan v. Mennon, No. 11–1367–pr, 470 Fed.Appx. 32, 33, 2012 WL 1764196 at *1
(2d Cir. May 18, 2012) (underline added).
However, courts have repeatedly held that mere 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.”).2 For example, this Court has
previously held that an inmate’s 8th Amendment claim, based on his layman’s belief that
the prison doctor should have been giving him prescription pain medication instead of
over-the-counter pain medication, amounted to a mere disagreement over treatment.
See, Morene v. Alves, No. 03-CV-6485 CJS, 2006 WL 2094694 at *6 (W.D.N.Y. Jul. 14,
2006); see also, Martin v. Niagara County Jail, No. 05–CV–868(JTC), 2012 WL 3230435
at *10 (W.D.N.Y. Aug. 6, 2012) (“Plaintiff's demand for narcotic pain medications and
defendants' unwillingness to prescribe them does not create an Eighth Amendment
claim.”); Guarneri v. Wood, No. 08–CV–792 (TJM/DRH), 2011 WL 4592209 at *13
(N.D.N.Y. Sep. 2, 2011) (“ Guarneri' s claims that he should have received a different
type or doseage of pain medication to alleviate the resulting symptoms from his
knee injury are also insufficient to raise a question of fact. The record show s that
defendants did attempt to treat Guarneri' s subjective complaints of pain w ith a
variety of medication. Defendants regularly offered Guarneri non-narcotic pain
medication and he refused it because he felt that he should be prescribed different
2

Similarly, negligence constituting medical malpractice, without more, will not establish a
constitutional claim. Id. (citation omitted).

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medication. Guarneri' s complaints about the type of medication given to him for
pain again amounts to a disagreement over treatment, w hich is insufficient to allege
a constitutional violation.” ).
In the instant case, Plaintiff admits that he has been provided w ith a TENS
unit, so that portion of his application is moot. This leaves his request for Ultram,
Neurontin, physical therapy, a back brace and a double mattress. In that regard,
Plaintiff admits that “ Dr. Canfield and [his] staff ha[ve] prescribed many
medications and treatments, other than w hat w as previously prescribed . . . even
though they have not given [him] any real relief.” Pl. Decl. [#24] at ¶ 6. In
response, Canfield has explained his approach to Plaintiff’s treatment, and why he has
declined to provide other treatments to Plaintiff. Viewing the entire record, including
Plaintiff’s allegations concerning the treatment he is currently receiving at Attica,
Plaintiff’s claim seems to be a mere disagreement over treatment which does not rise to
the level of a constitutional violation. Consequently, the Court finds that Plaintiff is not
entitled to preliminary injunctive relief.
CONCLUSION
Plaintiff’s application for preliminary injunctive relief [#19] is denied.
So Ordered.
Dated:

Rochester, New York
February 4, 2013
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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