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Calvert v. State

March 28, 2006

NORMAN B. CALVERT, PLAINTIFF,
v.
THE STATE OF NEW YORK, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action in which the plaintiff, a prison inmate at Clinton Correctional Facility ("Clinton"), is suing pursuant to 42 U.S.C. § 1983. Now before the Court are the following motions: 1) a motion for injunctive relief, asking that plaintiff be transferred to a new correctional facility; 2) a motion to amend the complaint; and 3) a motion for appointment of counsel. For the reasons that follow, the application for injunctive relief is denied and the remaining applications are referred to the Honorable Jonathan W . Feldman, United States Magistrate Judge.

BACKGROUND

The facts as alleged by plaintiff are as follows. On or about February 15, 2006, plaintiff signed a medical form at Clinton, refusing treatment for a Hepatitis C infection. At that same time, plaintiff orally declined to have a colonoscopy. He contends that some staff member at Clinton subsequently modified his written statement concerning Hepatitis C treatment by adding a statement that he was also declining the colonoscopy.

In other words, while plaintiff declined the colonoscopy, he apparently did not do so in writing, and he believes that someone subsequently "doctored" his written statement to make it appear that he had done so. Plaintiff also believes, based on hearsay from an unidentified declarant, that a staff medical technician "flipped the bird" at him behind his back. Because of these incidents, plaintiff is worried that Clinton's medical staff may have tampered with certain medical test results. He is also dissatisfied generally with the medical treatment that he has received at Clinton, and alleges that "contention, controversy, and strife exists between [him]self and the medical staff at [Clinton]".

ANALYSIS

The standard for considering an application for a preliminary injunction 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, requiring defendants to transfer him to a different correctional facility.

***

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' ...


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