United States District Court, D. Connecticut
RULING ON PETITIONER'S MOTION FOR TEMPORARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Dexter Anderson, currently incarcerated at the Federal
Correctional Institution in Danbury, CT, has filed a petition
for writ of habeas corpus under 28 U.S.C. § 2241,
challenging his security classification and conditions of
confinement at FCI Danbury. Petition, ECF No. 1. His petition
includes an allegation that Respondent and other prison
officials have violated his Eighth Amendment rights by being
deliberately indifferent to his medical needs. Id.
November 28, 2016, Petitioner filed a motion for a temporary
restraining order. ECF No. 20. He requests an order directing
Respondent or other prison officials to refrain from
transferring him until his motion for an Emergency
Preliminary Injunction can be heard and decided. Id.
at 1. He also asks the Court to issue an injunction requiring
Respondent to provide him with outside medical tests and
medical treatments without further delay. Id. at 3.
On December 2, 2016, the Court ordered the Respondent to show
cause why Petitioner's requests should not be granted.
Order to Show Cause, ECF No. 21. Respondent complied with
this order and submitted a response on December 8, 2016.
Response, ECF No. 22.
district court is not required to conduct an evidentiary
hearing on a motion for a preliminary injunction when
“essential facts are not in dispute.”
Maryland Cas. Co. v. Realty Advisory Bd. on
Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997).
Furthermore, court may decide to issue a preliminary
injunction without a hearing if the defendant does not
request one or if no material facts are in dispute.
See 13-65 Moore's Federal Practice - Civil
§ 65.21 (2016); Drywall Tapers & Pointers, Local
1974 v. Local 530 of Operative Plasterers & Cement Masons
Int'l Ass'n, 954 F.2d 69, 77 (2d Cir. 1992)
(“When parties are content in the district court to
rest on affidavits, the right to an evidentiary hearing is
waived.”); Redac Project 6426, Inc. v. Allstate
Insurance Co., 402 F.2d 789, 790 (2d Cir. 1968)
(“There is no hard and fast rule in this circuit that
oral testimony must be taken on a motion for a preliminary
injunction or that the court can in no circumstances dispose
of the motion on the papers before it”). Upon review of
the record, the Court determines that oral testimony and
argument are not necessary in this case.
Motion for Preliminary Injunction
injunctive relief “is an extraordinary and drastic
remedy … that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.”
Moore v. Consol. Edison Co. of New York, Inc., 409
F.3d 506, 510 (2d Cir. 2005) (internal quotation marks and
citation omitted). To show entitlement to a preliminary
injunction, the moving party must demonstrate (a) that he or
she will suffer “irreparable harm” in the absence
of an injunction, and (b) either (1) a “likelihood of
success on the merits or (2) sufficiently serious questions
going to the merits [of the case] to make them a fair ground
for litigation and a balance of hardships tipping decidedly
toward the party requesting the preliminary relief.”
Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d
Cir. 2011) (internal quotation marks and citation omitted).
To demonstrate irreparable harm, plaintiff must show an
“injury that is neither remote nor speculative, but
actual and imminent.” Grand River Enter. Six
Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)
(citations and internal quotation marks omitted). See
also City of Los Angeles v. Lyons, 461 U.S. 95, 111-12
(1983) (injunctive relief cannot be provided if claimed
injury is speculative or remote).
asks the Court to issue an injunction requiring Respondent to
provide him with outside medical tests and medical treatments
that doctors recommended to him after diagnosing him with
acinic cell carcinoma and removing a malignant tumor from his
salivary gland. Motion for Temporary Restraining Order, ECF
No. 20, 3. In August, he was examined by two doctors: Dr.
Fama, who removed the tumor, and Dr. Spera, a Radiation
Oncologist who examined Mr. Anderson on Dr. Fama's
referral. Id. at 6-7. Both doctors recommended
follow-up treatment. On August 26, Petitioner began to feel
excruciating pain around the surgical site and requested a
visit with Dr. Fama. In early September, a doctor in FCI
Danbury Health Services, Dr. Robert Greene requested an
“urgent” consultation with an ENT on behalf of
Mr. Anderson, with a scheduled target date of September 07,
2016. Id. at 9. In his request for injunctive
relief, Mr. Anderson alleged that FCI Danbury had not yet
granted any of Mr. Anderson's requests or scheduled the
recommended follow-up procedures. Id.
argues that “Petitioner has been provided with a robust
course of treatment that would preclude allegations of
deliberate indifference.” Response to Order to Show
Cause, ECF No. 22, 2. Respondent also provided a Declaration
from Angela Dukate, Lieutenant Commander in the United States
Public Health Service (“USPHS”) and Health
Services Administrator at FCI Danbury. See Id. at
Ex. 1, ECF No. 22-1, Dukate Decl., ¶1.
Commander Dukate's Declaration contradicts the
representations that Petitioner made in his Motion for a
Temporary Restraining Order. Specifically, she declares that
Mr. Anderson stated to Dr. Greene that he would “forego
any decision on whether to begin curative post-operative
radiotherapy until he had a chance to review his medical
records, ” calling into question his claim that he had
requested and not received follow-up radiation treatment.
Id. at 12. Dukate also declares that Mr. Anderson
met with Dr. Bard, an Otolaryngologist at Advanced Specialty
Care, on November 30, 2016, two days after he moved for a
temporary restraining order. Id. at 15. Eventually,
Respondent also scheduled Anderson for a Radiation Oncology
visit on December 7. Id. at 16.
this evidence of Respondent's willingness to schedule
follow-up treatments and examinations for Mr. Anderson,
Petitioner's claim of deliberate indifference to his
medical needs cannot be sustained.
prevail on an Eighth Amendment claim in the medical treatment
context, a prisoner plaintiff must prove two elements: (1) a
deprivation that is “sufficiently serious, ”
i.e., a deprivation that presents a “condition of
urgency, one that may produce death, degeneration, or extreme
pain, ” and (2) reckless indifference, that is,
“defendants were aware of plaintiff's serious
medical needs and consciously disregarded a substantial risk
of serious harm.” Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994), cert. denied sub nom.
Foote v. Hathaway, 513 U.S. 1154 (1995). The failure
to comply with prescribed treatment can constitute deliberate
indifference to a serious medical need. See Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976) (deliberate
indifference to medical needs can be evidenced by prison
officials “intentionally denying or delaying access to
medical care or intentionally interfering with …
treatment once prescribed”). However, “mere
disagreement over the proper treatment” does not create
a violation and “negligence, even if it constitutes
medical malpractice, does not, without more, engender a
constitutional claim.” Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998).
purposes of this inquiry, the Court assumes that the delay of
several months in scheduling Mr. Anderson's follow-up
treatments is a “sufficiently serious”
deprivation of his rights.However, in addition to demonstrating a
serious medical need to satisfy the objective component of
the deliberate indifference standard, Mr. Anderson must also
show that he is likely to succeed on the second component of
his deliberate indifference claim. He must present evidence
that, subjectively, the charged prison officials acted with
“a sufficiently culpable state of mind.”
Hathaway, 37 F.3d at 66.
in the Second Circuit have found prison officials
deliberately indifferent when their behavior was “a
substantial departure from accepted professional judgment and
that the evidence of risk was sufficiently obvious to infer
the defendants' actual knowledge of a substantial risk to
plaintiff.” Stevens v. Goord, 535 F.Supp.2d
373, 385 (S.D.N.Y. 2008) (citation omitted). Here, the
Respondent has provided a declaration describing the
petitioner's appointments within two months of his
post-surgery referral. While Respondent may not have
addressed Mr. Anderson's needs as quickly as he wanted
-especially given his allegations of “excruciating
pain”-it provided Mr. Anderson with the opportunity to
speak with Dr. Ylagan, a neurologist, and P.A. Cesar Villa,
within two months of his request for treatment. Later in
November, an Otolaryngologist evaluated Mr. Anderson and made
a plan with him for further assessment of his cancer.
delay in scheduling Mr. Anderson's follow-up appointment,
after his cancerous tumor had already been removed, was not
“repugnant to the conscience of mankind” or
“incompatible with the evolving standards of decency
that mark the progress of a maturing society.”
Estelle, 429 U.S. at 105-06. See also Sonds v.
St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d
303, 312 (S.D.N.Y. 2001) (noting that some delays in
receiving medical treatment are common even outside the
prison context). Without more evidence, the Court cannot
conclude that Mr. Anderson ...