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Suarez v. Keiser

June 22, 2010


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 in which Guarionex Suarez ("Plaintiff"), a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that prison medical staff violated his Eighth Amendment rights by denying him medical treatment. Now before the Court is that portion of an application [#68] by Plaintiff for preliminary injunctive relief, seeking an order that he be provided with medical treatment. Also before the Court is a renewed application [#69] for injunctive relief, requesting an order transferring Plaintiff to another facility. For the reasons that follow, the applications are denied.


The facts of this case were set forth in several prior decisions of this Court and need not be repeated here. (See, Docket Nos. [#15][#38][#51][#74]). Briefly, Plaintiff suffers from a painful vascular condition in his left leg, and he maintains in this action that between 2002 and 2004, Defendants denied him appropriate medical care for that condition. The alleged denial of medical care occurred at Five Points Correctional Facility ("Five Points"), where Plaintiff is currently housed. Plaintiff has been generally dissatisfied with the medical care that he has received while in DOCS custody. However, Plaintiff believes that he has received appropriate care from Dr. Benjamin Chang M.D. ("Chang"), a vascular specialist who has provided treatment to him in Albany, New York, apparently pursuant to a contract with DOCS. Chang has provided Plaintiff with nerve block injections for leg pain at various times, and in February 2010, Chang indicated that Plaintiff would "continue to need this kind of care for the remainder of his life." (Docket No. [#73]).

Plaintiff maintains, though, that defendant Dr. Gregoire ("Gregoire"), a physician at Five Points, has refused to allow him to receive such treatment. Plaintiff further contends that Gregoire has refused to provide him with the pain medication Ultram. In that regard, Plaintiff states that Gregoire told him that he could not have Ultram because it is addictive. ([#68] at 3). Plaintiff does not indicate whether he is receiving some other type of pain medication. Plaintiff further contends that medical staff at Five Points are refusing his requests to be placed on the medical call-out list. As to this contention, Plaintiff states that although medical staff told him that he failed to appear for his call-out appointment, corrections staff told him that he did not have such an appointment. ([#68] at 2).

On January 29, 2010, the Court issued an Order [#70], directing Defendants to respond to the subject application [#68] by February 12, 2010. On February 12, 2010, Defendants' counsel filed an "Affidavit in Opposition" [#72]. However, the affidavit only discussed the logistical difficulties of transferring Plaintiff to another facility in light of his medical problems and his impending deportation. The affidavit did not address Plaintiff's claim that he is being denied both treatment and pain medication. Consequently, on April 27, 2010, the Court issued a Decision and Order [#74] that, in pertinent part, directed Defendants to file a supplemental response, including "an affidavit from a member of the medical staff at Five Points with personal knowledge concerning Plaintiff's medical treatment."

On May 14, 2010, Defendants filed an affidavit from David Haimes ("Haimes"), a licensed Physician's Assistant ("PA") employed by Five Points. Haimes indicates that, since June 2009, he has been one of Plaintiff's primary health care providers at Five Points. Haimes states that his affidavit is based on his treatment and examination of Plaintiff, his consultations with Gregoire, and his review of Plaintiff's medical records. Haimes states that in July 2009, Gregoire examined Plaintiff and observed that he was able to easily bend over in a sitting position, with no apparent distress, was able to remove his socks and shoes without difficulty, and was able to walk and stand while experiencing some pain in his low back and left leg. Gregoire diagnosed Plaintiff with chronic neuropathy of the left leg, and prescribed a transcutaneous electrical nerve stimulation ("TENS") unit, elastic support stockings, orthotic shoe inserts, and wheelchair gloves. Gregoire also ordered a consultation for Plaintiff with a vascular surgeon in Albany, New York.*fn1 However, the DOCS Regional Medical Director denied the referral, and directed Gregoire to have a follow-up visit with Plaintiff in three months. In September 2009, Gregoire met with Plaintiff, and Plaintiff requested the pain medication Ultram. Plaintiff had previously been receiving Ultram, but it was discontinued in July 2009, "when he was caught passing his pill to his bunkmate." (Haimes Aff. ¶ 4). Gregoire noted that Plaintiff appeared to be functioning well, and he prescribed the pain medication Neurontin instead of Ultram. However, on December 18, 2009, the Neurontin was discontinued after Plaintiff "was discovered hoarding his Neurontin pills." Id. at ¶ 8.

On November 5, 2009, Gregoire observed Plaintiff moving about the facility in his wheelchair, at which time Plaintiff was smiling and easily pushing his wheelchair. Id. at ¶ 5. At that time, Plaintiff again asked Gregoire for Ultram. On November 12, 2009, Gregoire saw Plaintiff for a follow-up visit. Plaintiff complained of pain, and requested Ultram as well as an injection from Chang in Albany. Gregoire made a referral, and on February 24, 2010, Plaintiff received a nerve block injection from Chang. Between January and February 2010, Plaintiff received physical therapy ("PT") for complaints of pain in his right hip. Plaintiff received PT twice a week for three weeks.

On January 16, 2010, Plaintiff was placed in the Special Housing Unit ("SHU") at Five Points. On February 2, 2010, Haimes examined Plaintiff, who was complaining of hearing loss and pain in his left hip. At that time, Plaintiff was already receiving pain medication, and PT for pain in his right hip. Haimes referred Plaintiff for PT evaluation for his left hip, and referred him to an audiologist for his complaint of hearing loss. Additionally, Haimes referred Plaintiff to a vascular surgeon for a "saphenous nerve block injection." Id. at ¶ 8. Haimes did not prescribe Ultram or Neurontin, because based on Plaintiff's prior conduct in giving away and hoarding his prescription drugs, Haimes did not believe that Plaintiff needed the medication. Id. at ¶ 8. On February 24, 2010, Plaintiff received a nerve block injection.

On March 2, 2010, Haimes examined Plaintiff, and Plaintiff again requested Ultram and Neurontin. Haimes denied the request, "due to [Plaintiff's] past history of abusing those medications." Id. at ¶ 11. Haimes offered to provide Plaintiff with "alternative pain medications, but Plaintiff refused them, and commenced a two-day hunger strike." Id.

On March 25, 2010, Plaintiff complained to Gregoire of pain in both knees and his lower back. Gregoire diagnosed "left saphenous neuropathy" and recommended "exploratory arthroscopy of the knees." Gregoire also prescribed Ultram and Neurontin, after which Plaintiff declined to have the exploratory surgery. Currently, Plaintiff is receiving various medications including Ultram. Id. at ¶ 15.

Plaintiff has not filed any opposition to Haime's affidavit. Instead, on June 9, 2010, Plaintiff filed another application for injunctive relief [#79], requesting an order that he be transferred from Five Points. In support of the application, Plaintiff objects to a misbehavior report that he received on April 10, 2010, after he refused orders to remove a piece of paper that he had placed over his cell window, in violation of DOCS rules. Plaintiff claims that he covered his window in protest because he had not received his medications. The misbehavior report indicates that Plaintiff removed the paper once his medications were provided. Additionally, Plaintiff states that he is currently in voluntary protective custody, because his life is in danger from prison gangs at Five Points. In ...

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