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October 17, 1983


The opinion of the court was delivered by: CONNER



 Plaintiff Edward Green ("Green"), currently incarcerated at the Woodborune Correctional Facility, instituted this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights by inadequately responding to his medical complaint is. The case is currently before the Court on Green's motion for a preliminary injunction ordering defendants to take him to an outside specialist at State expense "to ascertain whether [his] medical condition is psychosomatic or physically caused." For the reasons stated below, the motion is denied.

 The standard in this Circuit for granting preliminary injunctive relief is quite strict and requires the moving party to show

 (a) irreparable harm and (b) either (1) 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 hardships tipping decidedly toward the party requesting the preliminary relief.

 Sperry Int'l Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir. 1982), quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam).

 Green's motion must be denied because he has not satisfied part (b) of the standard under either of the two alternative tests.

 It is well settled that the State has an obligation to provide medical care for its prisoners. See Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). An inmate must rely entirely upon prison authorities to provide him any necessary medical care; if they fail to do so, the prisoner's medical needs will not be met. This absolute dependence of an inmate upon the favor of prison authorities led the Court in Gamble to rule that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Id. at 104 (citation omitted). Thus, an allegation of deliberate indifference to a prisoner's medical problem, whether by prison doctors in their treatment of the prisoner or by other prison personnel in delaying access to or interfering with medical care, states a claim cognizable under § 1983. Id. at 104-05.

 However, not every claim of inadequate medical care rises to the level of a constitutional violation: "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id. at 106. Thus, a claim that a prison doctor has acted negligently in diagnosing or treating an inmate's medical condition, including a complaint that additional diagnostic techniques should have been employed, does not rise to the level of a constitutional violation and, hence, does not state a claim under § 1983.

 In his Complaint, Green describes the facts underlying his claim as follows:

 The facts in this Complaint is that the complaints I have made concerning my physical ailments have been neglected and not properly diagnosed.... I have complained to the medical staffs at these institutions about my aches, pains, and symptoms. They would prescribe pain-killers and muscle relaxants. These medications would work temporarily, but as time went on my physical condition got worse. When I complained about this a Physicians Aide (P.A.) or a Nurse would check my vitals, and tell me nothing was wrong, but would prescribe some form of pain-killer or muscle relaxer.

 * * *

 All the Facilities Doctors have administered pain-killers as a remedy but to no avail. The prison Doctors have taken blood samples, urine samples, listened to my organs with a stethoscope, and taken my blood pressure. They claim that all tests that have been taken returned negative. But this has not removed the fact that I still continue to ache and suffer from symptoms of physical ailments.

 I feel that my condition is deteriorating due to this unknown ailment that is persisting and even with the amount of medical attention that they are showing to me.

 Complaint at PP4-4A.

 Moreover, in an affidavit accompanying his motion for a preliminary injunction, Green reiterates his complaints, including his dissatisfaction with the treatment he has already received from the prison staff:

 Unless this order is issued, I will suffer immediate and irreparable injury, loss and damage in the treatment of my head and back aches that is shown to me by the medical staff.... The treatment that was rendered to me by the Defendants was excuses, pain-killers and muscle relaxants. The prison Doctors have taken my blood, urine samples and listened to my organs with their stethoscope, and taken my blood pressure, but to no avail because the aches and pains are still plaguing me and causing me severe unrest. Although all the tests that have been taken have been returned negative, I nevertheless am in constant pain.

 Green Aff. dated August 29, 1983 at 1-2.

 In opposing Green's motion, defendants do not contradict plaintiff's somewhat vague description of the treatment he has received, but instead provide records which document in great detail plaintiff's medical history while in State custody. According to these records, which Green has not disputed, plaintiff was examined by prison medical personnel on at least 61 different occasions between January 1980 and September 1983. While the quantity of plaintiff's contact with the prison medical staff obviously cannot talismanically be used to find that plaintiff has received adequate medical attention, the records reflect that the care and treatment Green received during these consultations was substantial.

 It appears that every complaint Green made resulted in a complete examination by medical personnel. In addition to routine examinations at sick call, plaintiff was many times referred to a specialist for further examination. Moreover, the prison staff has performed more tests on Green during his three-year period of incarceration than most human beings are subjected to during a lifetime: Plaintiff has had several chest X-rays, an EKG, several spine X-rays, an upper GI series, a shoulder X-ray, X-rays of his ankle and wrist, and many urinanalyses and blood tests. In short, a brief review of the uncontroverted documentary evidence tends to demonstrate that defendants have been responsive to every one of plaintiff's complaints.

 Even construing plaintiff's Complaint liberally, as this Court must when a pro se litigant is involved, it is impossible to find that plaintiff has demonstrated a likelihood of success on the merits of his claim or even that his Complaint presents sufficiently serious questions going to the merits to make them a fair ground for litigation. Thus, plaintiff's request for a preliminary injunction must be denied.

 In ruling that Green is not entitled to preliminary injunctive relief, the Court does not doubt the sincerity of his medical complaints. However, in order to succeed with a claim of inadequate medical care in an action under § 1983, a plaintiff must demonstrate deliberate indifference by the defendants to his medical needs. Gamble, supra. The preliminary showing in this case indicates that defendants treated Green with anything but indifference. Based on the Court's preliminary examination, it appears that plaintiff is attempting to litigate in federal court his disagreement with prison medical authorities over the proper method for treating his maladies. Although plaintiff may indeed have a valid dispute with defendants concerning his course of treatment, and might conceivably have a legitimate cause of action for medical malpractice, it appears to the Court highly unlikely that Green will be able to demonstrate the deliberate disregard necessary to establish a constitutional violation. While the Court is not prepared at this stage of the litigation, absent full briefing by both sides on a motion directed to the sufficiency of the Complaint to dismiss the action, it is also not prepared to grant plaintiff the preliminary relief he seeks.

 Accordingly, for the reasons stated above, plaintiff's motion for a preliminary injunction is denied.



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