United States District Court, D. Connecticut
ORDER ON PLAINTIFF'S REQUEST FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Vanessa L. Bryant United States District Judge
Marquis Taylor brings this action for monetary and
declaratory relief against Dr. Syed Johar Naqvi, Dr. Sohrab
Zahedi, Health Service Administrator Raquel Lightner, Dr.
Maxine Cartwright, and Dr. Raymond Castro (collectively,
“Defendants”). Mr. Taylor believes he contracted
acquired immune deficiency syndrome (“AIDS”) from
a past sexual partner who notified him that she had AIDS on
November 12, 2009. See [Dkt. 1 (Compl.) ¶ 1].
Shortly thereafter, Mr. Taylor requested a diagnostic test,
which he received on December 2, 2009. See Id.
¶¶ 2-5. The results were negative. Id.
¶ 6. Since that date, he claims to have deteriorating
health that Defendants refuse to address despite the fact
that his conditions are symptomatic of human immunodeficiency
visur (“HIV”) or AIDS. See Id. ¶
Complaint seeks an injunction for (1) a renewed test for
HIV/AIDS by an outside doctor, and (2) a requirement that
staff give him adequate medical treatment. Id.
(stating Prayer for Relief). The Complaint also contains the
language that “[t]his chronic degenerative condition is
causing irreparable damage and this is a[n] ongoing issue
that needs to be dealt with immediately.” Id.
¶ 29. Along with the Complaint, Mr. Taylor filed a
Proposed Order to Show Cause for a Preliminary Injunction and
a Temporary Restraining Order accompanied by a Memorandum of
Law. See [Dkt. 4]. The Proposed Order includes the
injunctive relief sought in the Complaint, but also contains
two additional requests that the Court restrain the
Defendants from harassing Mr.
because he filed a § 1983 claim and from transferring
Mr. Taylor to another facility. See Id. at 2. The Court
ordered a hearing for June 14, 2017, to address Mr.
Taylor's request for a temporary restraining order or
preliminary injunction in light of the information stated in
Mr. Taylor's Complaint.
temporary restraining order is an “extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of
persuasion.” Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Reidy, 477 F.Supp.2d 472, 474
(D. Conn. 2007) (quoting Moore v. Consol. Edison Co. of
N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005)).
“The purpose of a temporary restraining order is to
preserve an existing situation in status quo until the court
has an opportunity to pass upon the merits of the demand for
a preliminary injunction.” Garcia v. Yonkers Sch.
Dist., 561 F.3d 97, 107 (2d Cir. 2009). The factors
considered in assessing whether to grant a request for a
temporary restraining order are similar to those used to
determine the merits of a motion for a preliminary
injunction. See Control Sys., Inc. v. Realized Sols.,
Inc., No. 3:11CV1423 PCD, 2011 WL 4433750, at *2 (D.
Conn. Sept. 22, 2011) (citing Local 1814, Int'l
Longshoremen's Ass'n, AFL-CIO v. New York Shipping
Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992)).
a party seeking a temporary restraining order or a
preliminary injunction “must show (a) irreparable harm
and (b) either (1) likelihood of success on the merits or (2)
sufficiently serious questions going to the merits 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 omitted);
Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775,
779-80 (2d Cir. 1994) (applying same standard to motion for
temporary restraining order and motion for order to show
cause why a preliminary injunction should not be granted).
However, where a plaintiff seeks a mandatory injunction,
i.e., “one that alter[s] the status quo by
commanding some positive act, ” a higher standard
applies. Rush v. Fischer, No. 09 Civ. 9918(JGK),
2011 WL 6747392, at *2 (S.D.N.Y. Dec. 23, 2011) (alteration
in original) (quoting Tom Doherty Assocs., Inc. v. Saban
Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995);
accord Cacchillo, 638 F.3d at 405-06. The party
seeking the injunction must show a “‘clear'
or ‘substantial' likelihood of success.”
Griffin v. Alexander, 466 F. App'x 26, 28 (2d
Cir. 2012) (quoting Jolly v. Coughlin, 76 F.3d 468,
473 (2d Cir.1996)).
Taylor alleges deliberate indifference to a serious medical
need. [Dkt. 1 ¶ 31]. To establish his claim, Mr. Taylor
must show both that his medical need is serious and that the
defendants acted with sufficiently culpable states of mind.
See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.
2003) (discussing Estelle v. Gamble, 429 U.S. 97,
104-05 (1976)). There are both subjective and objective
components to the deliberate indifference standard. See
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be
“sufficiently serious” in that it is a condition
of “urgency” and may “produce death,
degeneration or extreme pain. . . .” Johnson v.
Wright, 412 F.3d 398, 403 (2d Cir. 2005). Subjectively,
the defendants must have “act[ed] or fail[ed] to act
while actually aware of a substantial risk that serious
inmate harm will result.” Salahuddin v. Goord,
467 F.3d 263, 279-80 (2d Cir. 2006). A prison official does
not act in a deliberately indifferent manner unless 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, 835 (1994).
is a “sufficiently serious” medical condition as
it can produce death, degeneration, and extreme pain. See
Smith, 316 F.3d at 186-87 (recognizing HIV as a
“sufficiently serious” medical condition). As
such, the failure to diagnose and treat HIV/AIDS would be a
violation of the objective component of the test. The
question then becomes whether Defendants acted with
sufficiently culpable states of mind to warrant a finding of
Eighth Amendment prohibition against cruel and unusual
punishment is violated where medical treatment is withheld
without justification. See Dolson v. Fischer, 613 F.
App'x 35, 38 (2d Cir. 2015). Allegations of unjustifiably
delayed medical care may support a finding of deliberate
indifference to a serious medical need. See Id. at
38-39 (finding allegations of delayed medical care can
support a deliberate indifference claim). By contrast,
negligence that would support a claim for medical malpractice
does not rise to the level of deliberate indifference and is
not cognizable under § 1983. See Salahuddin,
467 F.3d at 280. Nor does a difference of opinion
regarding what constitutes an appropriate response and
treatment constitute deliberate indifference. See Ventura
v. Sinha, 379 F. App'x 1, 2-3 (2d Cir. 2010)
(finding insufficient evidence that medical staff acted with
culpable state of mind where plaintiff's medical
limitations were inconsistent with program requirements);
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.
1998) (“Whether a course of treatment was the product
of sound medical judgment, negligence, or deliberate
indifference depends on the facts of the case.”).
testing there exists a “window period”:
“the time between when a person gets HIV and when a
test can accurately detect it. . . .” Center for
Disease Control (“CDC”), HIV/AIDS:
updated May 30, 2017). This window period varies for each
person and depends on the type of HIV test. Id. Mr.
Taylor was admitted to the custody of the Department of
Correction on October 28, 2009. Only a few weeks later on
November 12, 2009, Mr. Taylor was informed by his prior
sexual partner that he should get tested for HIV/AIDS due to
her recent diagnosis. [Dkt. 1 ¶ 1]. Mr. Taylor received
his first HIV test on December 2, 2009. Id. ¶
5. The CDC recommends getting a second HIV test three months
after the first test if that first test is performed within
three months of exposure. CDC, HIV/AIDS: Testing,
updated May 30, 2017).
Mr. Taylor to have been given only one HIV test in December
2009 as the Complaint indicates, it would be possible for the
HIV test result to be a false-negative. This could mean that
Mr. Taylor could have been living with HIV or AIDS for
approximately 7.5 years. See World Health
Organization, HIV/AIDS Online Q&A,
http://www.who.int/features/qa/71/en/ (last updated
November 2016) (“Left without treatment, the majority
of people infected with HIV will develop signs of HIV-related
illness within 5-10 years, although this can be shorter. The
time between acquiring HIV and an AIDS diagnosis is usually
between 10-15 years, but sometimes longer.”).
indicates, however, that Mr. Taylor has received ____ which
indicate he does not have HIV. As aforementioned, medical
staff ordered an HIV test promptly after Mr. Taylor requested
the test as he received the test less than three weeks after
learning of his possible exposure to the virus. See
[Dkt. 1 ¶¶ 1, 5]. Mr. Taylor acknowledges ...