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Dare v. United States

August 10, 2009



Presently before this Court is Petitioner's Motion by order to show cause for a preliminary injunction and a restraining order brought pursuant to 42 U.S.C. § 1983.*fn1 Motion (Dkt. No. 74). For the reasons set forth, Petitioner's Motion is denied.


Pro se Petitioner Aaron R. Dare ("Petitioner" or "Dare") is currently incarcerated and serving his sentence at Federal Medical Center, Devens ("FMC Devens"). FMC Devens is a Bureau of Prisons ("BOP") administrative facility that houses federal offenders who require specialized or long-term medical care. Declaration of Herbert Beam, M.D. ("Beam Decl.") ¶ 2. Petitioner suffers from dilated cardiomyopathy, hypertension and dyslipimedia, and has a history of left ventricle thrombus. See generally Motion; Beam Decl. ¶ 7.*fn2

On June 22, 2009, Petitioner filed an application for an order to show cause for a preliminary injunction and restraining order with this Court. Dkt. No. 74. Specifically, Petitioner filed this Motion requesting that this Court issue an order directing the Respondent United States ("Respondent" or the "Government"): (i) to provide the Petitioner with the Recorder to his surgically implanted loop monitor; (ii) to immediately adjust Petitioner's beta-blocker medication to the level and dosage ordered by Respondent's contract specialist; (iii) to reinstate Petitioner's Monitoring and Anti-Coagulation Clinics, which monitor Petitioner's (1) heart rate, blood pressure and weight and (2) anti-coagulation levels; and (iv) to reinstate Petitioner's monthly blood testing to monitor his co-morbid conditions such as hypertension and hyperlipidemia, as well as his kidney and liver functions. On June 23, 2009, this Court directed Respondent to show cause why the requested order should be not be granted. Dkt. No. 75. The Government submitted its response on July 8, 2009. Dkt. No. 76. Petitioner subsequently requested an extension to submit his reply, which this Court granted. Dkt. No. 77. Petitioner was ordered to postmark his response by July 27, 2009. Id. Petitioner then submitted two replies which were both postmarked within the allotted time period and filed on July 27, 2009 and July 31, 2009, respectively. Dkt. Nos. 78, 79.*fn3


A party seeking a preliminary injunction 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." Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008) (citation omitted). "'Yet, the standard is even higher where, as here, the movant seeks a mandatory injunction, i.e. an injunction that 'alter[s] the status quo by commanding some positive action.'" Dichiara v. Pataki, 1:06-cv-6123-ENV-LB, 2007 U.S. Dist. LEXIS 16068, at *8 (E.D.N.Y. Mar. 7, 2007) (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995)). "'[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). "When seeking such an injunction, a movant 'must show a 'clear' or 'substantial' likelihood of ultimate success or that it would suffer 'extreme or very serious damage' absent preliminary relief.'" Diachiara, 2007 U.S. Dist. LEXIS 16068, at *8 (quoting Cherry River Music Co. v. Simitar Entm't, Inc., 38 F. Supp. 2d 310, 316 (S.D.N.Y. 1999)).


"The Cruel and Unusual Punishments Clause of the Eight Amendment imposes a duty upon prison officials to ensure that inmates receive adequate medical care." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); U.S. CONST. amend. VIII. "However, a prisoner is not entitled to the best healthcare possible or even to a choice among available treatment modalities; instead, the Constitution entitles a prisoner only to reasonable measures to meet a substantial risk of harm." Diachiara, 2007 U.S. Dist. LEXIS 16068, at *8-9 (citing Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)). To succeed on an Eighth Amendment claim, the prisoner must show that the defendants were not merely negligent, but deliberately indifferent in failing to provide healthcare. Chance v. Amstrong, 143 F.3d 698, 702 (2d Cir. 1988); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976) ("[A]n inadvertent failure to provide adequate medical care [is insufficient to sustain a constitutional claim because] . . . negligen[ce] in . . . diagnosing or treating a medical condition does not state a valid claim"); Diachiara, 2007 U.S. Dist. LEXIS 16068, at *9 (citing Salahuddin, 467 F.3d at 280). "An official acts with the requisite deliberate indifference when that official '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 inference.'" Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). "Mere disagreement over proper treatment does not create a constitutional claim" as long as the treatment is adequate. Chance, 143 F.3d at 703; see also Diachiara, 2007 U.S. Dist. LEXIS 16068, at *9 ("If a prisoner's course of treatment is one about which reasonable doctors could disagree, an Eighth Amendment claim will not ordinarily lie") (citation omitted). Here, while this Court recognizes the seriousness of Petitioner's medical condition, Petitioner has not sustained the heavy burden necessary to warrant the extraordinary relief sought.

A. Loop Monitor

The Court first notes that Petitioner's request for a personal recorder for his loop monitor has been fulfilled; Petitioner received the personal recorder on July 1, 2009. See Beam Decl. ¶¶ 8-12; see also Pet.'s Reply (Dkt. No. 78) at 3. However, "Petitioner is not persuaded and suggests that the Court not be persuaded that the risk . . . that there is no cognizable danger of recurrent violation."

Pet.'s Reply at 3. Consequently, "Petitioner requests that the Court include in its Order a narrowly drawn, temporary injunction for at least ninety (90) days, or until more permanent injunctive relief may be granted by the Court at the close of this case, that the Bureau of Prisons be enjoined from removing or confiscating Petitioner's Loop Monitor." Id. at 3-4.

Petitioner, however, offers nothing more than hearsay and speculation to support his concern. Courts may rely on hearsay evidence on a motion for injunctive relief, especially where the information is within the possession of the defendant. See, e.g., Mullins v. City of New York, __ F. Supp. 2d __ , 2009 WL 1616005, *5 (S.D.N.Y. June 9, 2009). However, "while affidavits may be considered on a preliminary injunction motion, such a motion should not be resolved on the basis of affidavits that evince disputed issues of fact." Davis v. New York City Housing Authority, 166 F.3d 432, 437-38 (2d Cir. 1999) (citing Forts v. Ward, 566 F.2d 849, 851 (2d Cir. 1977)); see also Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1204 (2d Cir. 1970) (noting the "undesirability of issuing temporary injunctions solely on the basis of affidavits, particularly in cases where everything turns on what happened and that is in sharp dispute.") (internal quotations omitted); Conveyor & Caster Corp. v. Cruzado, 93-CV-0519, 1994 WL 49694, at *2 (W.D.N.Y. Feb. 18, 1994) ("Even if imminent irreparable harm were established, [petitioner's] motion would be denied because there are core factual disputes that this Court is being asked to decide on the basis of affidavits alone."). Accordingly, not only has Petitioner's request been fulfilled but Petitioner's allegations are also not sufficient to warrant the injunctive relief requested.

B. Beta-Blocker Adjustment

Petitioner requests that his beta-blocker medication be immediately adjusted to the level and dosage ordered by Respondent's contract specialist. Motion at 1. This request is denied because the subject beta-blocker recommendation by the contract specialist was qualified with "as tolerated" and the BOP physicians had medical concerns about increasing Petitioner's ...

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