Summary
denying prisoner's motion for preliminary injunction mandating specific medical accommodations (inner quotations omitted)
Summary of this case from Cole v. GoordOpinion
01 Civ. 3255 (SAS)
October 9, 2002
Charles Woods, Unit for the Physically Disabled Green Haven Correctional Facility Drawer B Stormville, NY, Plaintiff (Pro Se).
Melinda Chester-Spitzer, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY, For Defendants Wright, Koenigsmann, Zwillinger, Bendheim and Silver.
Tracy M. Larocque, Esq., Pennock Breedlove LLP, Clifton Park, NY, For Defendant Weinstein.
OPINION AND ORDER
Charles Woods, an inmate proceeding pro se, is suing Green Haven Correctional Facility ("Green Haven") and its officials and doctors, alleging a violation of his federal constitutional rights pursuant to 42 U.S.C. § 1983. Woods now moves pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction. For the reasons set forth below, plaintiff's motion is denied.
Because plaintiff did not request a hearing, and because this motion can be resolved on the parties' submissions, letters and a prior conference before the Court, no evidentiary hearing was held. "An evidentiary hearing is not required when the relevant facts either are not in dispute or have been clearly demonstrated at prior stages of the case or when the disputed facts are amenable to complete resolution on a paper record." Drywall Tapers and Pointers of Greater N.Y. v. Local 530 of Operative Plasterers and Cement Masons Int'l Ass'n, 954 F.2d 69, 76 (2d Cir. 1992) (holding that district court was justified in granting injunction without hearing because prior hearings and affidavits provided basis for court's decision) (citations omitted). "There is no doubt that a preliminary injunction may be "denied without a hearing . . . when the written evidence shows the lack of a right so clearly that receiving further evidence would be manifestly pointless." McKenna v. Wright, No. 01 Civ. 6571, 2002 WL 338375, at *13 n. 13 (S.D.N.Y. Mar. 4, 2002) (quoting Larouche v.webster, 566 F. Supp. 415, 419 n. 5 (S.D.N.Y. 1983)) (denying preliminary injunction without a hearing for these reasons, as well as the fact that plaintiff had not requested one).
I. RELEVANT FACTS
Woods is a wheelchair-bound inmate in the Unit for the Physically Disabled ("UPD") at Green Haven. On April 19, 2001, he filed suit against Green Haven and its officials in this Court, alleging denial of adequate medical care. On January 4, 2002, defendants moved to dismiss the Complaint pursuant to Rule 12(b)(6). On April 23, 2002, this Court issued an Opinion and Order denying the motion in part, and dismissing the case as to several defendants and claims. See Woods I, at *12; supra note 1 (listing defendants who have been dismissed). Discovery is underway, and a status conference is scheduled for November 6, 2002.
On May 23, 2002, Woods filed a motion for a preliminary injunction alleging retaliation against him for filing a lawsuit. See 5/23/02 Motion for a Preliminary Injunction ("Pl. Mot.") at 1-2. Woods alleges that this retaliation has taken the following form: (1) denial of a feed-in permit which has resulted in his inability to take certain medication; (2) denial of orthopedic boots and arm braces; (3) denial of access to an orthopedic specialist for the "replace[ment] [of his] elbows"; (4) denial of access to a neurologist; (5) denial, by Dr. Steven Weinstein, of access to physical therapy; and (6) denial of access to a wheelchair specialist for a customized fitting. 5/23/02 Plaintiff's Affidavit in Support of Motion for Preliminary Injunction ("Pl. Aff.") ¶¶ 1-11. See also 7/22/02 Plaintiff's Reply [in Support of His Motion for a] Preliminary Injunction ("Pl. Reply") at 1-9 (pages unnumbered in original).
This motion represents plaintiff's second attempt to seek injunctive relief in this case. Earlier, plaintiff sought an order requiring "the defendants [to] provide for the plaintiff appropriate medical treatment in the future." 6/21/01 Amended Complaint ¶ (D). Interpreting this paragraph as a motion for a preliminary injunction, this Court, in deciding defendants' motion to dismiss the Complaint, denied plaintiff's request because: (1) the injunction sought was too broad; and (2) Judge Robert Ward of this Court has exclusive supervision over a 1979 decree in Milburn v. Coughlin, 79 Civ. 5077, which has governed the provision of medical care at Green Haven for many years.See Woods I, at *7 n. 13 *12. Because the injunction that plaintiff now seeks is specific in nature, it will be decided by the undersigned.
In addition, I have been informed by Judge Ward's Chambers that he no longer has exclusive supervision over the Milburn decree.
II. PRELIMINARY INJUNCTION
"The purpose of a preliminary injunction is to prevent irreparable injury and preserve a court's ability to render a meaningful decision on the merits." Tactica Int'l, Inc. v. Atlantic Horizon Int'l, Inc., 154 F. Supp.2d 586, 597 (S.D.N.Y. 2001) (citing Warner Vision Entm't v. Empire of Carolina, Inc., 101 F.3d 259, 261-62 (2d Cir. 1985)). "Because it is one of the most drastic tools in the arsenal of judicial remedies, a preliminary injunction is an extraordinary measure that should not be routinely granted." Id. (quotation marks omitted) (quoting Hanson Trust PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985), and citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). See also Med. Soc'y of the State of N.Y. v. Toia, 560 F.2d 535, 538 (2d Cir. 1977). "The decision to grant a preliminary injunction rests squarely within the discretion of the trial judge." Tactica, 154 F. Supp.2d at 597 (citation omitted)
In order to obtain an injunction, a plaintiff must ordinarily demonstrate: (1) the possibility of irreparable harm; and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits, such that a fair ground for litigation has been demonstrated, and a balance of hardships tipping decidedly toward the party seeking relief. See SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21, 24 (2d Cir. 2000); Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989). "[A] heightened standard must be applied where, as here, the injunction which Plaintiff seeks is mandatory in nature." McKenna, 2002 WL 338375, at *4 (citing Norcom Electronics Corp. v. Cim USA, Inc., 104 F. Supp.2d 198, 207 (S.D.N.Y. 2000)). A mandatory injunction is one which would "alter the status quo by commanding some positive act." Id. (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995)).
Here, Woods asks this Court to order defendants to provide him with various medical treatments, as well as grant him a feed-in permit. "Since such an injunction would alter the current status quo by commanding a positive act, it is a mandatory injunction and therefore should only issue `upon a clear showing that the moving party is entitled to the relief requested' or `where extreme or very serious damage will result from a denial of preliminary relief.'" Id. (quoting Tom Doherty, 60 F.3d at 34). "In other words, under this more stringent standard for mandatory injunctions, [Woods] must demonstrate that he has a clear or substantial likelihood of success on the merits." Id. (citing Jolly v. Coughlin, 76 F.3d 468, 473-474 (2d Cir. 1996); S.E.C. v. Unifund SAL, 910 F.2d 1028, 1040 (2d Cir. 1990); Espinal v. Goord, 180 F. Supp.2d 532, 536 (S.D.N.Y. 2002); Padberg v. McGrath-McKechnie, 108 F. Supp.2d 177, 183 (E.D.N.Y. 2000)).
III. DISCUSSION
A. Subject Matter Jurisdiction
Defendants in this action are state prison officials and prison doctors who are normally immune from suit when sued in their official capacity.See U.S. Const. amend. XI. As noted in the prior opinion, however, the Eleventh Amendment is not a bar to a suit in equity against state officials who violate federal rights. See Woods I, at *12 (citing Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir. 1990)). Here, plaintiff seeks injunctive relief for the alleged violation of his Eighth Amendment rights. See U.S. Const. amend. VIII. Thus, there is no Eleventh Amendment bar to this Court's jurisdiction over plaintiff's claims pursuant to 28 U.S.C. § 1331.
B. Eighth Amendment Right to be Free from Deliberate Indifference to Serious Medical Needs
The Eighth Amendment's prohibition against cruel and unusual punishment has been construed to include the denial of adequate medical care for an inmate s serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that such behavior amounts to an unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment); Edmonds v. Greiner, No. 99 Civ. 1681, 2002 WL 368446, at *8 (S.D.N.Y. Mar. 7, 2002) ("A person who is incarcerated is entitled to receive adequate medical care.") Prison officials violate this right when they are deliberately indifferent to an inmate's serious medical needs. See Estelle, 429 U.S. at 104; Word v. Croce, 169 F. Supp.2d 219, 226 (S.D.N.Y. 2001).
The Second Circuit has interpreted Estelle to consist of objective and subjective elements: First, a court must determine whether, objectively speaking, plaintiff's condition is such that the alleged deprivation of medical assistance is "`sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66-67 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This "standard contemplates a `condition of urgency, one that may produce death, degeneration, or extreme pain.'" Id. (quotingNance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). A serious medical need arises where "`the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). See, e.g., Rivera v. Goord, 119 F. Supp.2d 327, 332, 337 (S.D.N.Y. 2000) (pain and facial swelling, migraines and burning in eyes gave rise to serious medical need); Arce v. Banks, 913 F. Supp. 307, 309 (S.D.N.Y. 1996) (failure to treat small cyst on forehead not sufficiently serious).
Second, a court must consider whether the official "`kn[ew] that [an] inmate face[d] a substantial risk of serious harm, and disregard[ed] that risk by failing to take reasonable measures to abate it.'" Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Farmer, 511 U.S. at 837). The failure to render proper care must result from a "sufficiently culpable state of mind." Hathaway, 37 F.3d at 66 (citing Wilson, 501 U.S. at 298). "[T]he subjective element of deliberate indifference entails something more than mere negligence but something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Hathaway v. Coughlin II, 99 F.3d 550, 553 (2d Cir. 1996) (citing Farmer, 511 U.S. at 835). "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id.
C. Analysis
1. Orthopedic Boots and Elbow Braces
Plaintiff claims that the defendants have taken away his arm braces and orthopedic boots, and asks that the Court order defendants to provide him with replacement braces and boots immediately. He avers that he "can only move on his own for short distances and only with all his braces and orthopedic boots." Pl. Reply at 2. There is no dispute as to whether these devices meet a serious medical need of plaintiff, or that, deprived of them for a prolonged period of time, plaintiff may suffer irreparable harm.
On February 7, 2002, plaintiff received new orthopedic boots, at which time the boots were tried on his feet "to ensure a proper fit." 5/7/02 Memorandum from Dr. Koenigsmann to Plaintiff ("5/7 Mem.") (summarizing plaintiff's medical history with respect to orthopedic boots), Ex. A to Def. Opp. Two months later, on April 3, 2002, plaintiff complained to the Green Haven medical department that the boots were too tight. See Def. Opp. at 2. On April 11, 2002, plaintiff was seen in the prosthetics clinic but refused to sign the necessary form for the issuance of new boots. See id. A short time later, plaintiff complained again to Dr. Koenigsmann that the boots were causing him pain, at which time Dr. Koenigsmann scheduled plaintiff for a follow-up visit. See id. On May 16, 2002, plaintiff was seen again at the prosthetics clinic. See id. The same conversation took place: plaintiff wanted new boots but refused to sign the consent form agreeing to turn in his current pair of boots when he received the new boots. See id. The Attorney General's Office, in its papers, informs the Court that "[p]laintiff finally agreed to those terms and presently, he is waiting for delivery of his boots which he should receive, at the very latest, by July 16, 2002." Id.
Green Haven's policy requires that an inmate sign a form indicating his consent to turn in the old braces and boots at the time the new braces and boots are issued. See Def. Opp. at 2.
On September 26, 2002, the Assistant Attorney General on this case verified via telephone that plaintiff received the new orthopedic boots ahead of schedule, in May or June 2002. Plaintiff has not since written this Court regarding the boots.
A similar sequence of events transpired with respect to plaintiff's elbow braces. See id. On April 4, 2002, plaintiff was seen at the Westchester Medical Clinic for an evaluation of his diseased joints, a result of rheumatoid arthritis. See id. After determining that "[n]o current surgical options would provide plaintiff with improved function," the specialist, Dr. Zelicoff, recommended that plaintiff receive hinged elbow braces for both elbows. 4/4/02 Consultant Report by Dr. Zelicoff, Ex. B to Def. Opp. (consultant report follows on the same form as the 3/8/2002 N.Y. DOCS Consultation Request for Charles Woods).
Because plaintiff was examined by Dr. Zelicoff, an orthopedic specialist at Westchester Medical Center, plaintiff's additional claim that he has been denied access to an orthopedic specialist for his hips, knees and feet, see Pl. Aff. ¶ 11, is hereby dismissed.
On April 10, 2002, Dr. Lester Silver, plaintiff's primary care physician and a defendant in this case, reviewed the orthopedic specialist's recommendation that plaintiff receive new elbow braces. See Def. Opp. at 2. Although plaintiff had "four pairs of custom hinged elbow braces in his possession," he complained to Dr. Silver that all four [pairs] of his braces were . . . inadequate and not of the type recommended by [Dr. Zelicoff]." Id. Dr. Silver did not oppose the recommendation but informed plaintiff that if he wished to receive yet another set of elbow braces, he must turn in his current pairs. See id. Mr. Woods refused to do so. See id.
On April 21, 2002, plaintiff again complained to Dr. Koenigsmann that he did not have properly-fitting elbow braces. See id. Dr. Koenigsmann responded on April 22, 2002, explaining that in order to adjust or modify plaintiff's elbow braces, he must relinquish the four pairs in his possession. See 4/22/02 Memorandum from Koenigsmann to Woods ("4/22 Dr. Mem."), Ex. C to Def. Opp. Rather than allow plaintiff to keep a pair of braces while awaiting the issuance of new ones, Dr. Koenigsmann directed plaintiff to turn in all pairs of braces in his possession, reasoning that "[s]ince you claim that these [braces] do not fit properly and/or do not provide you with the intended function there is no reason to have these potentially dangerous braces in your possession." Id.
Extra boots and braces, as they have metal parts, may present a risk to the security of plaintiff and of others. See id. at 3 (citing 4/22 Dr. Mem.). Plaintiff is not permitted to retain his old braces and boots just because he wants to. Plaintiff has therefore failed to show that he would succeed on his section 1983 claim for deliberate indifference on the basis of these complaints, unless there was a time when he was deniedany elbow braces. In any event, the need for injunctive relief has been mooted by plaintiff's receipt of the boots and braces. See, e.g., Williams v. Keane, 940 F. Supp. 566, 572 (S.D.N.Y. 1996) (dismissing, as moot, claim for injunctive relief where prisoner received the requested shoe inserts).
Assistant Attorney General Chester-Spitzer also confirmed that plaintiff received the new elbow braces in June. Nevertheless, the possibility that plaintiff may have been required to turn in his elbow braces without immediately receiving new ones, may support his pending section 1983 case.
2. Access to a Neurologist
Plaintiff claims that defendants have denied him access to a neurologist for his neuropathy. Plaintiff provides no further explanation as to why he believes that he must be seen by a neurologist. There is no automatic right to see a specialist. See, e.g., Ross v. Kelly, 784 F. Supp. 35, 46 (W.D.N.Y. 1992) (noting that "access to outside specialists" is not a right guaranteed by the Constitution); Singh v. Eagen, 653 N.Y.S.2d 434, 435 (3d Dep't 1997) (dismissing claim of prisoner that the Eighth Amendment entitled him to, inter alia, access to an orthopedic specialist). The Attorney General's Office represents that "not one of the specialists who are presently treating plaintiff (i.e., the urologist, rheumatologist, physiatrist, ophthalmologist, orthopedist or Dr. Silver, his primary care physician), ha[s] recommended that plaintiff should be examined and treated by a neurologist." Def. Opp. at 4-5. Without anything further from plaintiff, there is no proof to support an order requiring a neurological examination.
3. Wheelchair Specialist
On October 31, 2001, Woods filed another lawsuit together with three other inmates, Johnson et al. v. Newport, 01 Civ. 9587 (SAS), alleging that his Eighth Amendment rights were being violated due to prison officials' delegation of specialized wheelchair-fitting tasks to non-specialists, namely other inmates. Plaintiffs in that action sought a temporary restraining order prohibiting Green Haven from allowing inmates to measure other inmates for wheelchair-fit. This Court denied the motion for a temporary restraining order, but referred the dispute to Magistrate Judge Henry Pitman for a hearing. See 9/4/02 Order of Reference. Because Judge Pitman will address these precise facts and issues in Johnson, they need not be addressed here.
4. Physical Therapy
Plaintiff claims that Dr. Steven Weinstein has denied him physical therapy in retaliation for his having filed a lawsuit. Plaintiff made similar allegations in response to the defendants' motion to dismiss earlier this year. See Woods I, at *2 (citing plaintiff's Opposition papers). While Weinstein's motion to dismiss was denied because plaintiff pleaded that Weinstein had ignored plaintiff's surgeon's orders to provide physical therapy, and thus satisfied the Rule 12(b)(6) hurdle for alleging deliberate indifference, see id., plaintiff does not meet the burden for a preliminary injunction. First, plaintiff adds no specific allegations of retaliation. When, as here, a claim of retaliation is alleged in wholly conclusory terms, "it may safely be dismissed on the pleadings alone." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
Second, plaintiff is unlikely to succeed on his underlying claim for physical therapy. While Weinstein may not have provided the type of therapy the surgeon ordered, Weinstein prescribed some physical therapy treatment, namely home treatment involving low-level resistance such as the lifting of a can of beans. See Woods I, at *2; Pl. Aff. ¶ 6. An Eighth Amendment claim for deliberate indifference cannot be based on a difference of opinion between doctors. See, e.g., Douglas v. Stanwick, 93 F. Supp.2d 320, 325 (W.D.N.Y. 2000) ("Not every physician will treat every ailment in exactly the same manner. That does not mean that one of the physicians must be acting with deliberate indifference to the patient's needs."); Webb v. Jackson, No. 92 Civ. 2149, 1994 WL 86390, at *3 (S.D.N.Y. Mar. 16, 1994) ("it is well established that a mere difference in opinion, whether between doctors or laymen, based on medical care does not give rise to an Eighth Amendment violation of inadequate medical treatment pursuant to section 1983.").
Moreover, while plaintiff finds the notion of being "told to use a can of bean[s] to exercise" particularly offensive, Pl. Aff. ¶ 6, "[a] prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim." Troy v. Kuhlmann, No. 96 Civ. 7190, 1999 WL 825622, at *6 (S.D.N.Y. Oct. 15, 1999). A prisoner has "no right to the treatment of [his] choice." McKenna, 2002 WL 338375, at *7 (quoting Wise v. Halko, No. 94 Civ. 2946, 1997 WL 570544, at *3 (S.D.N.Y. Sept. 12, 1997)); Ross, 784 F. Supp. at 44-45 (same). Further, plaintiff makes no showing that he will suffer irreparable harm if he is not provided with a more formal course of therapy. Plaintiff's request for Court'-ordered physical therapy is denied.
5. Request to Be Sent to Specialized Hospitals
Plaintiff also requests that the Court order the defendants to send him to the Hospital for Special Surgery at East 70th Street in New York City, as well as the "Cancer Hospital on 69nd [sic] and York Ave." Plaintiff's reason for this demand is: "[N]o other surgeon wants to touch the damage the prior surgeon has done and left." Pl. Reply at 8. Plaintiff does not attempt to explain either the harm he faces if "the damage" is treated at Green Haven as opposed to these other hospitals, nor the nature of the damage or surgery requested. He similarly does not attempt to support his bald assertion (that no surgeon at Green Haven will treat him) with specific allegations. Thus, plaintiff fails to satisfy his burden with respect to the first prong of the test for a preliminary injunction: that irreparable harm will ensue if he is not sent to one or both of these specialized hospitals.
Moreover, plaintiff has received extensive care at Green Haven since 1996 for his rheumatoid arthritis, degenerative joint disease and leukemia. See Woods I, at *1-*2. He has undergone surgery on his elbow, as well as chemotherapy. See id. His doctors at the prison have not deemed it necessary that plaintiff be removed from their care, nor that he be sent to these particular hospitals.
[D]isagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) (dismissing plaintiff's section 1983 claim where plaintiff alleged that prison doctors failed to X-ray his partially severed finger, made no determination whether he had suffered internal bleeding, and refused to refer him to a specialist; inmate had received some treatment for his finger and therefore could not show wilful disregard of his medical needs) (citing Estelle, 429 U.S. at 97). It is not disputed that plaintiff has received extensive treatment for his cancer and other ailments. At most, plaintiff states a claim for medical malpractice. Thus, plaintiff cannot show any likelihood of success on the merits on this claim. This request for injunctive relief is denied.
6. Feed-In Permit
Plaintiff's allegation that he was deprived of a "feed-in permit," Pl. Aff. ¶ 5; 5/5/02 Letter from Plaintiff to the Court ("Pl. 5/5 Ltr."), stems from the fact that, initially, plaintiff and several other UPD inmates were given such permits. See 6/10/02 Letter from Assistant Attorney General Melinda Chester-Spitzer to the Court in Opposition to Plaintiff's Motion for a Preliminary Injunction ("Def. Opp.") at 3. The permit enabled Woods to remain in his cell and have his food brought to him. See id. Plaintiff alleges that the denial of the permit caused him to go without food and medicine from May 2, 2002 to June 2, 2002. See Pl. Reply at 4.
In April, one of plaintiff's physicians and a defendant in this case, Dr. Koenigsmann, determined that the permit was given in error because plaintiff is able to operate his wheelchair to travel to the dining area.See Def. Opp. at 4; 4/30/02 Memorandum from Dr. Carl Koenigsmann to Charles Woods ("4/30 Dr. Mem.") (stating that feed-in permits were issued in error to many prisoners who were "mobile," including Woods). Dr. Koenigsmann has opined that a feed-in permit was not medically necessary. See id. Other doctors at Green Haven have stated that Woods must engage in "low-resistance exercises for [his] rheumatoid arthritis."E.g., 3/4/02 Letter from Lester N. Wright, M.D., M.p.H., Deputy Commissioner and Chief Medical Officer at Green Haven, to Charles Woods, attached to Pl. Reply. Woods himself admits that he "can . . . move on his own for short distances. . . ." Pl. Reply at 2, but complains that it is "excruciatingly painful" for him to move a heavy wheelchair down the hall, see id. To accommodate plaintiff, officials at Green Haven have since granted plaintiff a feed-in permit for breakfast because plaintiff is less mobile in the morning due to joint stiffness in the early part of the day. See Status Ltr. at 1.
According to defendants, Woods is able to walk within his cell to accomplish daily living tasks independently, and is able to move about outside his cell with the assistance of a wheelchair. See 10/8/02 Status Letter from Assistant Attorney General Susan Odessky to the Court ("Status Ltr.") at 1 (referring to recent conversation with Dr. Koenigsmann) Defendants also claim that "plaintiff is capable of walking outside of his cell. . . ." Id. (same).
The full statement is as follows: "The plaintiff can only move on his own for short distances and only with all his braces and orthopedic boots." Pl. Reply at 2.
While the pain that plaintiff experiences in either wheeling or walking himself down the hall may constitute irreparable harm, he fails to show a clear or substantial likelihood of success on the merits of his retaliation claim. This Circuit has recognized that retaliation claims by prisoners are especially "prone to abuse." Flaherty, 713 F.2d at 13. Due to "the ease with which retaliation claims may be fabricated, [they should be] view[ed] with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quotation, quotation marks omitted). "Virtually every prisoner can assert such a claim as to every decision which he or she dislikes." Flaherty, 713 F.2d at 13. Here, there is every indication that far from retaliating against plaintiff, prison officials and doctors at Green Haven are attentive to his many needs. Judging from the exhibits plaintiff attaches to his Reply, prison doctors including Dr. Koenigsmann have responded promptly to every letter he has sent. Dr. Koenigsmann and Dr. Silver have honored his requests that doctor's visits be scheduled. Plaintiff's claim of retaliation is weakened further by the facts that (1) Dr. Koenigsmann did not single him out, but rather revoked the feed-in permits of an entire group of wheelchair-bound inmates who, like Woods, are able to move about with the assistance of a wheelchair; and (2) granted plaintiff a feed-in permit for breakfast. Thus, plaintiff also fails to make the necessary showing on his retaliation claim, i.e., a clear or substantial likelihood of success, to obtain mandatory relief in the form of a feed-in permit.
IV. NO RIGHT TO ATTEND CONFERENCES IN A CIVIL CASE
Plaintiff also claims that his rights are being violated because he has not been allowed to attend various conferences held in this case. Lawful incarceration limits an inmate's right to personally manage his own case. See Price v. Johnston, 334 U.S. 266, 285-86 (1948), overruled on other grounds, McClesky v. Zant, 499 U.S. 467 (1991); Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (holding that prisoner had no right to be present at the trial of his section 1983 action) Otherwise stated, prisoners who bring civil actions do not have a constitutional right to personally appear at any stage of the proceedings. See Poole, 819 F.2d at 1028; Holt v. Pitts, 619 F.2d 558, 560-61 (6th Cir. 1980) (holding that district court acted within discretion in denying plaintiff-inmate's request to be produced for civil conference), appeal after remand, 702 F.2d 639 (6th Cir. 1983). Further, "although a court is obligated to make meaningful accommodations to an inmate at the time his civil action proceeds to trial, . . . the physical presence of the plaintiff is of significantly lesser importance at the pretrial phase of the judicial process." Holt, 619 F.2d at 561-62. See also Am. Inmate Paralegal v. Cline, 859 F.2d 59, 62 (8th Cir. 1988) ("Civil rights plaintiffs generally have no constitutional right to be present at the trial of their claims, let alone the right to personally attend a pretrial conference.") (citations omitted). Because plaintiff's presence has not been required at the conferences held in this case, and because plaintiff has no right to attend such conferences, this claim is dismissed.
V. CONCLUSION
For the foregoing reasons, plaintiff's motion for a preliminary injunction is denied. The Clerk of the Court is directed to close this motion.