The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to 42 U.S.C. § 1983. The pro se plaintiff, a prison inmate at Elmira Correctional Facility ("Elmira"), alleges that staff there are violating his constitutional rights. Now before the Court is a motion by plaintiff seeking injunctive relief [#40]. For the reasons that follow, the application is granted in part and denied in part.
Plaintiff, who alleges that he has a "serious heart condition", seeks an injunction, directing the medical staff at Elmira to "provide [him] with appropriate medical care." In that regard, plaintiff alleged that defendants were: 1) refusing to check his pulse prior to providing him with his "daily Digoxin medication"; 2) writing false entries in his medical record to avoid documenting that he has an abnormally slow pulse rate; 3) failing to provide him with an appropriate low-sodium diet; 4) failing to provide him with anger management treatment; and 5) placing him in a cell without an intercom to contact medical staff. Plaintiff alleged that all of these actions were retaliatory.
In response to the application, defendants submitted an affidavit [#48] from Floyd Fuller, R.N. ("Fuller"), a nurse at Elmira. Fuller stated that plaintiff has been prescribed a "low cholesterol diet and . . . prescribed Lipitor to lower his cholesterol." Fuller also stated that "since February 6, 2006, [plaintiff's] pulse has been taken prior to the administration of his medication", as plaintiff had requested.
Plaintiff filed a reply [#54] on April 7, 2006, in which he admitted that, at that time, defendants were providing him with a proper diet, and that he was no longer taking Digoxin. However, he alleged, and the Court agreed, that defendants' response failed to address the other issues raised in his application for injunctive relief, such as his claim that his current cell placement was inappropriate, his claim that staff were making false entries in his medical record, and his claim that he was being denied anger management treatment. Accordingly, the Court issued an Order [#55] directing defendants to "file and serve a supplemental response to plaintiff's application for injunctive relief [#40], which addresses the issues identified above."
Defendants subsequently filed a supplemental response. Unfortunately, the response was not, in the Court's view, responsive to the issues raised by plaintiff. More specifically, defendants filed an affidavit [#56] from Marijon Hopkins ("Hopkins"), the Nurse Administrator at Elmira, which did not address the issue of false entries in plaintiff's medical records or his request for anger management counseling. As for plaintiff's complaint regarding his housing, Hopkins stated, in relevant part, that plaintiff had been admitted to the infirmary and held for observation on five occasions since November 2005, that he was subsequently discharged from the infirmary, and that "inmate patients house in cell blocks outside the infirmary who are unable to walk or are non-ambulatory are transported to the infirmary by wheel chair or other means when necessary."
Plaintiff's complaint regarding his housing, however, centered upon his concern that he would suffer a cardiac emergency and be unable to either call for help or receive prompt medical care. As to that issue, it is undisputed that plaintiff has a heart condition which is so serious that he has been given an implantable cardioverter defibrillator, and for which he takes numerous medications. He has also claimed to have difficulty breathing. Moreover, he claimed that when he experienced chest pain, it could take an hour for him to be transported to the infirmary by corrections staff. (Pl. Aff. [#54], ¶ 8)
Consequently, the Court issued another Order [#81], which directed defendants to file a supplemental affidavit from a member of the medical staff at Elmira who was familiar with plaintiff's medical and psychiatric condition, which affidavit was to specifically address plaintiff's allegations. The Court directed, for example, that defendants respond to plaintiff's contention that it was unsafe for him to be housed outside of the infirmary in a cell which did not contain an intercom or other emergency call device.
Defendants subsequently submitted an affidavit [#83] from John Alves, M.D. ("Alves"), the Director of Health Services at Elmira, dated November 17, 2006. Alves indicated that he had reinstated plaintiff on Digoxin and had directed facility staff to take plaintiff's pulse prior to administering the drug. Alves also stated that plaintiff was being housed at the Arnot Ogden Medical Center temporarily, and that upon his return to Elmira he would be placed in a cell in the prison's infirmary equipped with a working call intercom. In response to plaintiff's allegation regarding falsified medical notes, Alves indicated that he had reviewed plaintiff's file and found no evidence of that. Alves further indicated that he had ordered that plaintiff receive a low-sodium diet. Finally, Alves stated that plaintiff was "an active patient with the Office of Mental Health," but was not eligible to attend group anger management classes, because he was designated as being confined to Elmira's Segregated Housing Unit ("SHU"). Alves indicated, however, that plaintiff was eligible to receive "individual mental health counseling . . . to address anger management issues," but had "declined to avail himself" of such counseling. In this regard, the Court understands Alves to mean that plaintiff is currently receiving counseling for certain issues, but not anger management specifically, out of choice.
Plaintiff thereafter filed an affidavit [#85], dated November 29, 2006, in response to Alves' submission. Significantly, plaintiff acknowledged that he had been placed in the infirmary upon his return to Elmira, and that he had been placed back on Digoxin. Plaintiff reiterated that, in the past, medical staff had refused to take his pulse prior to administering Digoxin, though he did not specifically dispute that medical staff were currently taking his pulse prior to administering the drug. In any event, the Court notes that it is undisputed in the record that plaintiff is capable of taking his own pulse prior to receiving the medication, but refuses to do so. (See, Exhibits to Plaintiff's Second Supplemental Declaration [#85]). Plaintiff additionally indicated that on one occasion, November 27, 2006, the intercom in his infirmary cell was not working. As for his complaint regarding his medical records, plaintiff reiterated his belief that defendants had falsified his medical records in the past, by covering up the fact that he had an abnormally slow pulse rate. In support of this claim, plaintiff submitted copies of inmate grievance decisions from 2005 which quoted Alves as stating that plaintiff did not suffer from a slow pulse. Plaintiff also submitted certain medical charts, dating from 2003, which showed that his pulse was below sixty beats per minute ("bpm") on numerous occasions. As to his complaint regarding anger management counseling, plaintiff stated, in somewhat ambiguous terms, that "individual mental health counseling is not available to [him] to address anger management issues," (emphasis added), and he additionally stated that he takes "mental health medication" twice a day. Finally, plaintiff indicated that he had not received a low-sodium diet since June 2006, though he had received a notice in November 2006 indicating that such a diet had been ordered for him.
The standard to be applied when 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 ...