Noel Davila v. Monica Farninella et al. (2012)

MEMORANDUM OF DECISION ON APPLICATION FOR INJUNCTION

This action, in which the plaintiff/prison inmate alleges that he is being denied proper medical treatment, is before the court on the plaintiff's application for a preliminary injunction.   See # # 103, 104.   An evidentiary hearing was held by video on May 31, 2012, at which testimony and exhibits were presented.

I

Background

In his complaint, dated January 18, 2011 (# 100.31), the plaintiff, Noel Davila, a Connecticut prison inmate, alleges he suffers from severe and chronic pain stemming from various medical conditions.   More recently, in his May 9, 2012 reply to the defendants' motion to reschedule hearing (# 146), he alleges that he continues to suffer from numerous conditions, including arthritis, degenerative bone disease in his spinal chord, muscle spasm, musculoskeletal neurologic deficit disorder, paraparesis, and back pain, neck pain, abdominal pain, and inner bones pain, and that the defendants have denied to him a prescribed pain management treatment plan.   The plaintiff asserts that he continues to suffer and that, although a pain management regimen of treatment every 4 or 6 hours on a regular basis was prescribed by medical professionals at the University of Connecticut Health Center, the defendants are only providing him with pain management medication every twelve hours.¹

In response, the defendants contend that they have provided and are providing the plaintiff with medical treatment which is appropriate for his medical needs, and that the plaintiff is seeking narcotics which have been discontinued from his medication regimen as unwarranted and therefore inappropriate for his use.

Additional references to the factual allegations are set forth below.

II

Standard of Review

In order to prevail on an application for a temporary or preliminary injunction, the movant must show (1) likelihood of success on the merits;  (2) lack of an adequate remedy at law;  (3) irreparable injury;  and (4) that a balancing of the equities favors granting the injunction.   See Waterbury Teachers Association v. Freedom Of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994);  Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457–58, 493 A.2d 229 (1985).

“The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted.   Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm.”  (Internal quotation marks omitted.)   Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001).

III

DiscussionAOpportunity To Prepare And To Present Witnesses

As a preliminary matter, the court addresses the plaintiff's statements, made near the end of the hearing, that he was not prepared for the hearing and that he wanted to call witnesses to testify.   These statements were presented:  (1) after the plaintiff's testimony concluded, and after the defense had presented the testimony of one of the defendants, Dr. Monica Farinella;  (2) after the defense presented records of the plaintiff's extensive medical history;  and (3) after the defense rested for the purposes of the hearing.   For the reasons stated below, in the exercise of its discretion, the court concludes that the plaintiff had adequate opportunities prepare for and to present witnesses and evidence at the hearing and that further opportunities to do so are not warranted.

Although no continuance was sought by the plaintiff in advance of the plaintiff's statements, the court views them as analogous to such a request when made at the end of a trial.  “A trial court holds broad discretion in granting or denying a motion for a continuance.”  (Internal quotation marks omitted.)  DiStefano v. DiStefano, 67 Conn.App. 628, 631, 787 A.2d 675 (2002).   Requests for continuances made on the day of trial are disfavored.   See Day v. Commissioner of Correction, 118 Conn.App. 130, 134, 983 A.2d 869 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).

Here, the court's docket and the history of the scheduling of the hearing on the plaintiff's request for preliminary injunctive relief reflect that the plaintiff was provided with adequate opportunities to prepare and to have witnesses available at the hearing.

By notice dated December 6, 2011, the plaintiff's application was scheduled for a hearing on January 18, 2012.   In advance thereof, the plaintiff requested the court to authorize the issuance of subpoenas for numerous witnesses for attendance at the hearing.   These requests were granted on December 23, 2011 and subpoenas were issued by the Clerk.   See # # 134, 135, 136, 137, 138.   The subpoena form provides that the witness is directed to appear in court on the scheduled date or another day after, within sixty days of the date indicated.

Thereafter, since the plaintiff was to undergo surgery, the defendants filed a motion for a continuance of the hearing, with the plaintiff's agreement.   See # 139.   On January 9, 2012, the court granted that motion (see # 139.10) and directed the parties to contact the Caseflow Office concerning rescheduling after the plaintiff had recovered from surgery.   By notice dated March 28, 2012, the hearing was rescheduled to occur on May 8, 2012.   By that time, the sixty-day period after the initial hearing date of January 18, 2012 had passed.   The plaintiff presented no new applications for subpoenas for witnesses to attend the May 8, 2012 hearing.

By motion filed on May 3, 2012 (# 144), the defendants sought to reschedule the hearing, which the court granted.   In his reply thereto (# 146), the plaintiff did not oppose rescheduling or request to subpoena witnesses for the hearing.   Instead, he presented documents and arguments as to why his request for injunctive relief was not moot.

By notice dated May 23, 2012, the hearing was rescheduled for May 31, 2012.   The plaintiff presented no request for a continuance in advance of the May 31, 2012 hearing.   He also presented no request for a continuance when the hearing began.   Instead, he went forward and presented evidence through his own testimony.   Thereafter, the defense presented documentary evidence, Dr. Farinella testified, and the plaintiff cross examined her.   After the defense had rested, the plaintiff stated that he was unprepared for the hearing and wanted to present witnesses.

In the exercise of its discretion, the court concludes that the plaintiff had adequate opportunities to prepare for the hearing and to present witnesses.   It would be unduly prejudicial to the defense to permit the plaintiff to go forward with his proof, to cross examine the defense's witness, and then, after the defense rested for the purposes of the hearing, provide the plaintiff a further opportunity to prepare and to present evidence in an effort to refute the defendants' contentions.

B

Adequate Medical Care

“Under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), prison officials will be found to have violated the eighth amendment to the United States constitution if, by virtue of their deliberate indifference to an inmate's serious medical needs, they refuse to provide care or treatment to that inmate.”  (Footnote omitted.)  Faraday v. Commissioner of Correction, 288 Conn. 326, 328, 952 A.2d 764 (2008).

“ ‘The [e]ighth [a]mendment prohibits the infliction of cruel and unusual punishments.  U.S. Const. amend VIII. This includes punishments that involve the unnecessary and wanton infliction of pain.  Gregg v. Georgia, 428 U.S. 153, 173 [96 S.Ct. 2909], 49 L.Ed.2d 859 (1976).   In order to establish an [e]ighth [a]mendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to [his] serious medical needs.  Estelle v. Gamble, [supra, 429 U.S. 104].   The standard of deliberate indifference includes both subjective and objective components.   First, the alleged deprivation must be, in objective terms, sufficiently serious.  Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) [cert. denied sub nom.  Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (2005) ] ․ Second, the [government official] must act with a sufficiently culpable state of mind.  Id. 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.  Farmer v. Brennan, 511 U.S. 825, 837 [114 S.Ct. 1970], 128 L.Ed.2d 811 (1994).’  (Internal quotation marks omitted.)  Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).   Thus, ‘an official's failure to alleviate a significant risk that he should have perceived but did not [does not violate the eighth amendment].’  Farmer v. Brennan, supra, 838.”   (Footnote omitted.)  Faraday v. Commissioner of Correction, supra, 288 Conn. 338–39.

“With respect to the objective component of the deliberate indifference standard, the term ‘sufficiently serious' has been described as ‘a condition of urgency, one that may produce death, degeneration, or extreme pain.’  (Internal quotation marks omitted.)  Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).”  Faraday v. Commissioner of Correction, supra, 288 Conn. 339 n.12.

Here, the plaintiff seeks a court order directing the defendants to provide a specific course of medical treatment, pain medication.   Thus, he seeks a mandatory injunction.  “A mandatory injunction ․ is a court order commanding a party to perform an act.”  Tomasso Bros., Inc. v. October Twenty–Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994).  “Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances.”  (Internal quotation marks omitted.)  Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982).

Whether an injunction should now be issued depends on evidence of the plaintiff's recent medical treatment history and current condition.   While the plaintiff testified that the defendants are wrongfully denying him medication, the evidentiary record reflects that he continues to receive medical care and does not support issuance of injunctive relief.

In April 2012, subsequent to his recent spinal surgery, the plaintiff asserted that he was taking Percocet, two pills every twelve hours, for pain, which provided pain relief for only four hours.   See plaintiff's reply, # 146 (plaintiff's Appeal of Health Services Review, attached as an exhibit).   As of May 8, 2012, he alleges that he is still taking the same amount of Percocet, but that it provided him pain control relief for only four or five hours.   See # 146 (Inmate Request Form, attached as an exhibit).   He asserts that Dr. Farinella took it upon herself, despite an orthopedist's prescribed treatment of medication every four or six hours, to discontinue the prescribed treatment.   See # 146, pp. 1–2.

His medical history shows that the plaintiff has been evaluated and treated by medical specialists.   He was seen at the University of Connecticut Health Center Department of Neurology in November 2011 after his complaints of pain in his left lower extremity.   See Defendant's Exhibit 1 (plaintiff's medical history), pp. 241–44.   In December 2011, evaluation showed that the plaintiff has cervical spinal stenosis (narrowing of the spinal canal) and degenerative disc disease.   See Defendant's Exhibit 1, p. 272.

A December 2011 MRI of the plaintiff's brain showed no evidence of brain abnormality.   See Defendants' Exhibit 1, p. 236.   A January 2012 MRI showed mild degenerative disc disease of the thoracic spine and, as to the lumbar spine, multilevel spinal canal and neural foraminal stenosis secondary to degenerative disc disease.   See Defendants' Exhibit 1, pp. 220–21.

On January 10, 2012, the plaintiff underwent anterior cervical diskectomy and fusion surgery.   He was discharged on January 12, 2012.   The Discharge Summary states that “[h]is pain was controlled with oral pain medication.”   See Defendants' Exhibit 1 (Discharge Summary), p. 215.

Dr. Farinella explained the medications currently prescribed for the plaintiff, including Elovil, which is used for chronic pain, and Flexoril, a muscle relaxant.   While Percocet, a narcotic, was prescribed after surgery, it is not for use on a long-term basis, as it can be addictive.   It has been discontinued as of May 2012.   Also, the plaintiff apparently had an allergic reaction to it.   The plaintiff also was referred for another MRI in May 2012 and has an upcoming appointment with an orthopedist.

The plaintiff has not presented evidence showing deliberate indifference to his medical needs.   After review of the testimony, exhibits and arguments, the court concludes that the plaintiff has not shown a likelihood of success on the merits or irreparable injury.   Rather, based on the record, it appears that the plaintiff is receiving ongoing medical care to address his medical issues.

CONCLUSION

Based on the foregoing reasons, the plaintiff's application for a preliminary injunction is denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. In his supplemental motion (# 104), the plaintiff also sought to be transferred to another facility and physical rehabilitation services.   At the hearing, the plaintiff did not pursue these requests.   Accordingly, the court need not consider them..  FN1. In his supplemental motion (# 104), the plaintiff also sought to be transferred to another facility and physical rehabilitation services.   At the hearing, the plaintiff did not pursue these requests.   Accordingly, the court need not consider them.

Shapiro, Robert B., J.