Connecticut Cases July 10, 2019: St. Pierre v. Commissioner of Correction

Case Description

UNPUBLISHED OPINION

OPINION

Bhatt, J.

The petitioner, John St. Pierre, brings this petition for a writ of habeas corpus alleging that the medical care provided to him by the Department of Correction (DOC) violates the eighth amendment’s prohibition against cruel and unusual punishment. Although the petitioner was not assigned counsel initially, in 2017 the court, Oliver, J., granted the petitioner’s motion for assignment of counsel. Assigned counsel in 2018 amended the petition to raise a claim in one count, albeit premised on ten separate allegations of deliberate indifference by DOC to the petitioner’s medical needs. The respondent’s return to the amended petition leaves the petitioner to his burden of proof, and asserts that the petitioner has received regular and extensive medical care while in DOC’s custody.

The petitioner seeks habeas corpus relief in the form of orders from the habeas court mandating that DOC provide him with specific medical care. Additionally, the petitioner asks the habeas court to reimburse him for medical expenses he has incurred, including litigating the present matter. The petitioner also requests that the habeas court order his release to a nursing facility.

I. FACTS

Based on the evidence presented the court finds the following. In 2008, the petitioner was sentenced to a total effective term of thirty years incarceration, suspended after the service of twenty-five years, of which five years is a mandatory minimum, followed by five years of probation. The petitioner is in DOC’s custody as a result of this sentence. The petitioner suffers from various medical problems afflicting his shoulder, feet, legs, shoulder, skin, and nervous system. DOC has provided medical care to the petitioner for these problems.

In 2012, the petitioner received an operation at UCONN Medical Center on his left foot. The initial surgery did not, according to the petitioner, alleviate the foot problems and pain in the foot. The petitioner reported more pain in his left foot subsequent to the surgery. Two additional surgeries to address the problems in the left foot have not fully addressed the petitioner’s problems with his left foot. Presently, the petitioner complains that he cannot walk on the big toe in his left foot and experiences significant pain when he tries to walk. The toes do not bend and, according to the petitioner, he experiences pain and pressure that is felt up through his leg and even up into his back.

The petitioner’s nerve disorder, referred interchangeably to as complex regional pain syndrome and RSD (i.e., Reflex Sympathetic Dystrophy), developed and/or worsened during his term of confinement. The diagnosis for RSD occurred while the petitioner was in DOC’s custody. The precise cause of RSD is unknown. The petitioner described his RSD as resulting in pain that he feels throughout his body, that it attacks old injuries, and creates blisters on the surface of his skin. The petitioner has experienced periodic outbreaks of blisters as a result of RSD. The blisters occur all over the petitioner’s body, pop, occasionally bleed, and cause a burning sensation. Additionally, the petitioner’s legs, mouth, and tongue swell up.

The petitioner testified about a visit with a nurse on January 20, 2019, to seek care for a blister outbreak. At the time of the visit the blisters had ruptured, and blood and other fluids seeped out, visibly staining his pants. According to the petitioner, he went to sick call at 8:10 a.m. and there was no one else in the waiting room when he arrived. The petitioner was told to wait. Other inmates on sick call arrived after 8:45 a.m. The nurse attended to other inmates on sick call and, after waiting until 10:40 a.m., the petitioner left without having been seen by the nurse. Because he was not seen and not provided with bandages, the petitioner returned to his unit and wrapped his legs with packing tape and toilet paper.

According to the petitioner, he has been given pain medications such as Gabapentin, Oxycontin and Oxycodone, for his RSD. The petitioner also received additional medications to treat other conditions such as high blood pressure, panic attacks, dry mouth, and constipation. The pain medications are effective, but do not completely alleviate the petitioner’s pain, which emanates from such different areas as his foot, arm, hand, and the blisters when they flare up. The petitioner complained that his medications have been crushed and mixed with water, thereby negatively impacting pain medications that are a timed release formula.

The RSD also causes pain in his shoulder, where the petitioner previously had surgery, and has made his toenails fall off. The petitioner also experiences numbness, instead of pain, in his hand, and the petitioner has difficulty writing and lifting. Although the petitioner at one point used crutches, in 2015 a crutch he was using broke and he injured his shoulder. The petitioner now uses a wheelchair instead of crutches. He has been issued elastic resistance bands to perform exercises to address muscle atrophy.

The petitioner presently is not using the resistance bands or doing physical therapy because he experiences levels of pain high enough to interfere with such exercise. The petitioner has received cognitive behavioral therapy in group sessions where participants discuss how to alleviate pain by talking to each other. A new procedure named "Calmare" has been utilized to treat the petitioner’s RSD. The petitioner received ten Calmare sessions, but they did not reduce the pain that he experiences.

The petitioner testified that he experiences difficulties receiving prescribed pain medications, and he identified several specific nurses who delay giving him scheduled medications. These delays subside when a doctor intervenes to ensure that the petitioner receives the medications when needed. The petitioner also criticized the availability of a special soap that he reports provides relief when his blisters flare up. Sometimes he will go for months without access to the soap. The disruptions in receiving medications, access to the special soap, and availability of the exercise bands in his prison cell occur in spite of orders from a doctor.

Another item the petitioner relies on for relief is footgear. The petitioner has a "sneaker pass" so that he can wear New Balance brand sneakers, which alleviate the pain and discomfort he experiences due to his foot surgery. The cost of the sneakers, which the petitioner must purchase for himself, is $130 a pair. The petitioner testified that he needs to purchase such sneakers twice per year, but cannot afford them because of his expenditures for clothing and copying documents for his legal proceedings. The petitioner further testified that he has spent about $2, 500.00 since 2012 on such expenses.

The petitioner at times experiences sensations of hotness and redness of his skin. A fan can provide relief when he experiences hotness; however, a fan is not always available. Additionally, the mattress and/or bed combination do not provide support and elevation, which results in discomfort.

On cross examination, the petitioner acknowledged that DOC has referred him to an outside pain management specialist, Dr. Jonathan Kost, for RSD treatment. Dr. Kost has treated the petitioner, including the Calmare treatments and several variations of pain medications- Tylenol-3, Codeine, Lyrica, Neurontin, and Methodone. The petitioner has refused to take some of these pain medications (Codeine; Methodone) and noted that he was allergic to Lyrica. The petitioner has also completed half of the twelve sessions of CBT, has received testosterone, and used an OSKA device through the pain management specialist. These various pain management treatments and medications have not been successful in fully addressing the petitioner’s pain.

The petitioner also provided additional information during cross examination about his shoulder injury. The shoulder injury occurred in the early 1990s and was surgically repaired prior to the petitioner’s incarceration. During his term of confinement, the petitioner complained about pain in his shoulder. The petitioner testified that while incarcerated he has received numerous X-Rays of the shoulder, that an MRI of the shoulder was done in 2016, and that he has been able to have consultations with a specialist for his shoulder problems. The specialist told the petitioner that he would not repair the shoulder, which resulted in the petitioner wanting a second opinion. The petitioner presented conflicting testimony: both that he has received instructions on how to perform physical therapy with the tension bands in his cell and that no one showed him how to use them. However, the pain he experiences interferes with him doing the exercises effectively. The petitioner also indicated that the bands were taken away after he got into an argument with a nurse, and they were not returned to him to keep him his cell because he had indicated to staff that he was in too much pain to use them.

The petitioner was recalled as a witness, after other witnesses testified, to update, append, or expand on his earlier testimony. The petitioner stated that he was in a housing dorm and not in the hospital. The petitioner had received a double mattress from DOC, but was still waiting for a medical mattress ordered by Dr. Donny Wright, a primary care physician and licensed podiatrist employed by DOC. The double mattress alleviates the pain in his shoulders. The petitioner was still reducing the amount of opioids he was taking so that he could eventually receive a new non-narcotic medication. The petitioner had been allowed to keep two fans near him to alleviate the burning sensation. The petitioner obtained a sneaker pass. DOC provided the petitioner with neoprene shoes, but the petitioner testified that he needs suede shoes. The medications were not being crushed anymore, but the petitioner still reported issues with nurses complying with doctor’s orders. The petitioner indicated that the medications were delayed four or five times since his previous day in court for the habeas trial. The petitioner also reported missing appointments because the nurses have not let him use the pass Dr. Wright gave him. There had been no additional treatments for the shoulder and foot injuries. The petitioner testified that his pain management visits have not been regular and has not had physical therapy since his last day of trial. The petitioner stopped the testosterone treatments because something was making him "freak out." Dr. Wright told the petitioner he could not just stop taking the medication, so the petitioner was going to resume taking the testosterone. Lastly, the petitioner continued to have difficulty obtaining the soap he wants and dressings for his recurring blisters.

Dr. Jonathan Kost, a pain specialist at the Hartford Hospital pain treatment center, has treated the petitioner since his referral for pain management. Dr. Kost has experience treating RSD. The petitioner is currently prescribed Gabapentin and Oxycontin for his pain. Dr. Kost is familiar with the petitioner’s shoulder injury and pain issues. A MRI revealed severe osteoarthritic changes in the shoulder and rotator cuff tendonitis issues. The petitioner was seen by an orthopedic surgeon for his shoulder, but was found to not be a candidate for surgery.

According to Dr. Kost, the petitioner is a good candidate for a new pain management medication, Belbuca, but his referral in the summer of 2018 for the petitioner to be prescribed this medication went unheeded. He believed this to be because Belbuca is not on DOC’s formulary list. Belbuca can be used to treat the petitioner’s RSD and shoulder pain while reducing the likelihood of addiction to a pain medication, which is a significant concern with opioids. Although there is no guarantee that Belbuca will achieve better pain management results than present and past medications administered to the petitioner, the petitioner is not getting much benefit at this time from the opioids, so that the petitioner most likely would respond well to Belbuca. Additionally, administering Belbuca in the prison setting alleviates safety concerns because, unlike opioids delivered via pills, Belbuca is delivered through a thin film that is pressed against the inside of a cheek and dissolves after the medication is absorbed. The film delivers the active ingredient through contact, which takes about 10-20 minutes, is not crushable, and becomes ineffective if swallowed. Belbuca does not have the euphoric side effects like opioids such as Oxycontin. Other treatments such as Calmare and OSKA have been tried to address the petitioner’s pain, but have not worked. Thus, the only pain management treatment that may have beneficial effects for the petitioner that he has not yet been able to try is Belbuca.

Dr. Kost described the petitioner’s leg pain as Complex Regional Syndrome type II. Normal to light touch, which would normally not be painful to the average person, is extremely painful to the petitioner. Dr. Kost has made DOC aware of this issue so that it can be taken into account when DOC handles the petitioner. The skin condition associated with RSD (i.e., the petitioner’s blisters) are common lesions that develop. However, most of the pain experienced by RSD sufferers such as the petitioner is caused by improper processing of pain signals, not the blisters themselves, which may create a burning or heat sensation on the skin. There are limited medications used to treat RSD and the pain caused thereby.

Dr. Johnny Wright has provided medical care to inmates for the past seven years. Dr. Wright is familiar with the petitioner and has treated him since early 2018. The petitioner has been seen by him both when he makes his rounds and when the petitioner requests to see him. The petitioner presented as a patient with specific complaints about his shoulder, legs, and pain, which was diagnosed as RSD. Although the petitioner is in general population, he is in a special block for inmates with disabilities, and therefore benefits from the special accommodations provided to such inmates.

The petitioner receives treatment for his RSD and other medical problems. The petitioner receives Gabapentin for his nerve pain. Although he previously received opioid-type drugs for his pain, the petitioner wanted to come off of the opioid medications. The petitioner’s RSD pain management medications are currently being tapered down to reduce the petitioner’s reliance on opioids and to take a trial medication. Dr. Wright’s medical opinion is that the petitioner has benefitted from the administered medications and adjustments that have been made to them.

Dr. Wright acknowledged that the prison environment impacts the administration of medications. When a patient such as the petitioner is prescribed pain medications that are to be taken when there is a quick increase in pain (i.e., break through pain), the logistics of proper and safe administration of controlled substances such as prescription opioids in the prison environment present safety concerns that unfortunately delay inmates receiving prescribed medications. There have been times when certain dosages of medications are in short supply or temporarily unavailable to DOC pharmacies. Events such as security lockdowns in a correctional facility can also impact the administration of medications, as do inmates requesting medications at nighttime. Dr. Wright also acknowledged that there can be misunderstandings by nursing staff about when medications are given, but that those are resolved when they are brought to his attention. Dr. Wright indicated that he would rewrite the orders to ensure that the petitioner receives his medications at the time he should receive them.

Dr. Wright is presently not part of the care provided for the petitioner’s shoulder pain. Dr. Wright did recall in the past offering the petitioner a wedge which would provide relief to his shoulder. The petitioner had already been referred to a specialist for his shoulder issues. The petitioner received cortisone injections and multiple MRIs. Dr. Wright noted that options have been exhausted with regard to the petitioner’s shoulder, which has undergone several surgeries, including muscle reattachment and anchoring through an orthopedic device. The petitioner’s shoulder is afflicted by arthritis and degenerative joint disease. The petitioner had a consultation with an orthopedic surgeon in 2016, and received a steroid injection in his shoulder in December of 2016. Shoulder replacements, which typically last 8-10 years, are not medically recommended for the petitioner.

Dr. Wright is aware that the petitioner was provided with tension bands so he could do physical therapy exercises for his shoulder. The petitioner is unable to lift his shoulder so that his arm is perpendicular to the floor. Using the bands would increase range of motion and help prevent muscle atrophy from non-use of the shoulder. However, given the petitioner’s housing, he cannot get assistance with the bands, and nurses or physical therapists cannot go into the petitioner’s cell block to help him. Dr. Wright indicated that the petitioner may benefit from another outside referral for physical therapy.

The petitioner’s present foot condition, according to Dr. Wright, follows two or three operations to correct a bunion and hammer toe. The initial surgery resulted in complications, which in turn led to additional surgery and modifications. The petitioner is left with plates and screws in his foot, and the inside of the foot where a screw is placed has atrophy issues. The head of the screw in his skin can be felt by hand. DOC had an orthopedic shoe for the petitioner; however, the petitioner refused that shoe because the fastening strap ran across the top of his foot and applied pressure to a painful area. The petitioner has been issued a sneaker pass. The petitioner has had to pay for the New Balance sneakers he wears. Dr. Wright noted that he would look into whether DOC can obtain the sneakers directly through the purchasing clerk.

Dr. Wright’s testimony also addressed the petitioner’s bedding, fan, and soap complaints. Dr. Wright indicated that the petitioner would be permitted to have the bedding he requested. The petitioner will also be permitted to have a fan and, if necessary, will write a pass for the petitioner to permit him to have a fan in his cell. The soap requested by the petitioner, according to Dr. Wright, is not medically necessary and is not always available at a facility’s infirmary. Although Dr. Wright has written an order for the soap, he also testified that regular soap is sufficient.

Dr. Wright does not have experience treating patients with RSD. The petitioner was referred to an outside specialist for his pain management treatment. Dr. Wright could not provide any recommendations regarding a newly available medication- Belbuca- for pain treatment because he was not familiar with Belbuca. If Dr. Kost, the petitioner’s pain management specialist, recommends Belbuca, then Dr. Wright would attempt to get that medication for the petitioner and he did not foresee any problems or issues with the petitioner receiving Belbuca in the prison context. However, Dr. Wright cautioned that Belbuca should not be taken at the same time or in combination with opioids that the petitioner continues to take, although the petitioner was being tapered off opioids. As noted above, Dr. Kost believed that he had recommended Belbuca as a medication for the petitioner sometime in the summer of 2018 but that it would not be administered because it was not on the DOC’s formulary list, that is, it was not available to DOC. Dr. Wright testified, however, that DOC had not received any such referral from Dr. Kost for Belbuca and that he had heard of the medication and its uses for the first time during the testimony of Dr. Kost. He further testified that if Dr. Kost referred that medication for use by the petitioner, he would attempt to obtain it for the petitioner’s treatment. As of February 21, 2019, no referral for Belbuca had been received by DOC and it is unclear whether this referral had been made between that date and the close of trial on March 14, 2019.

Dr. Wright testified that the petitioner’s recurring blisters, which flare up and subside, are not infected. The chronic reoccurrence of the blisters is related to the petitioner’s RSD. The petitioner has been treated for the blisters, which should be cleansed with regular soap and water or a cleansing substance. The blisters, which do not require an antibiotic agent, should then be covered and dressed with an appropriate dressing. The petitioner had been treated as recently as March 5, 2019, for the blisters.

Richard Furey, the DOC Regional Chief Operating Officer, is responsible for ensuring that medical policies are followed throughout the medical units in prisons. Furey is the administrator who makes sure the standard of care is given to inmates in DOC facilities, including Osborn C.I., where the petitioner is housed. Furey is familiar with the petitioner and has talked with him many times.

By coincidence, Furey also suffers from RSD and has discussed that condition with the petitioner. Furey does not have any involvement in the treatment of the petitioner’s RSD; nevertheless, their discussions have involved the sharing of information such as the treatments and medications Furey has received, as well as whether or not they were effective. This shared information can then, if the petitioner chooses to discuss it with his pain management specialist, be addressed further between the petitioner and his doctor.

Furey became aware of some of the difficulties the petitioner testified about, such as his bed, receiving break through pain medications, and the assessments performed when the petitioner goes on sick call. The assessment done during a sick call, also referred to as triage, is a determination made each visit to help assess and treat medical needs based on the severity of the medical issue. The petitioner’s movement out of Osborn C.I. and placement in DOC’s nursing home has also been discussed. The request was reviewed by an APRN at Osborn C.I., who did not feel the petitioner met the requirements, but ultimately the Commissioner of Correction has the final authority to grant such a request. Furey testified that he addressed some of these issues upon becoming aware of them during the present court proceedings.

Heidi O’Connor, a nurse with DOC, works at Osborn C.I. and has treated the petitioner when he has used sick call. O’Connor described the treatment room process as similar to a triage clinic. Each housing unit in the facility has a scheduled time twice a week when inmates from that housing unit are seen. An inmate requesting sick call is akin to making an appointment in a regular doctor’s office. Sick call visits result in a $3 charge to an inmate’s account for each visit, unless an inmate is indigent. A list is generated of the inmates who have requested sick call on any particular day. Inmates are also seen on an emergency basis. Treatment room staff can provide over-the-counter medications and creams, for example, but prescription narcotics must be obtained by an inmate at the prison pharmacy window. O’Connor saw the petitioner for an unrequested sick call visit for the chronic blisters he experiences. The petitioner’s blisters do not qualify as a medical emergency. O’Connor, after determining that the petitioner’s visit was not of an emergency nature, advised the petitioner that he had to wait. The petitioner waited for about two hours and then left. O’Connor denied ever refusing to give the petitioner bandages or denying his requests for medication. Additional facts will be set forth as necessary.

II. DISCUSSION

"The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. In its prohibition of cruel and unusual punishments, the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. The Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." (Internal citations and quotation marks omitted.) Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

"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)." Faraday v. Commissioner of Correction, 288 Conn. 326, 338, 952 A.2d 764 (2008). "The eighth amendment, which applies to the states through the due process clause of the fourteenth amendment to the United States constitution; see, e.g., Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); ‘prohibits detention in a manner that constitutes cruel and unusual punishment.’ Hunnicutt v. Commissioner of Correction, 67 Conn.App. 65, 66, 787 A.2d 22 (2001). ‘Cruel and unusual punishment refers to punishment that involves the unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime.’ Santiago v. Commissioner of Correction, [ 39 Conn.App. 674, 683, 667 A.2d 304 (1995)]. Under the eighth amendment, ‘prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates ...’ (Citation omitted; internal quotation marks omitted.) Farmer v. Brennan, [ supra , 511 U.S. 832]." Fuller v. Commissioner of Correction, 75 Conn.App. 133, 136, 815 A.2d 208, cert. denied, 263 Conn.App. 65, 66, 787 A.2d 1217 (2003).

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. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Faraday v. Commissioner of Correction, supra , 288 Conn. 328. Thus, in order to succeed on his claim, the petitioner must prove deliberate indifference to his serious medical needs. Estelle v. Gamble, supra , 429 U.S. 104.

The standard of deliberate indifference has both subjective and objective components. First, the deprivation alleged must be, objectively, "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); 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 (1995); Faraday v. Commissioner of Correction, supra , 288 Conn. 338. 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); Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting); Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984) ("extreme pain"); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) ("physical torture and lingering death"). "The types of conditions which have been held to meet the constitutional standard of serious medical need include a brain tumor, Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); broken pins in a hip, Hathaway v. Coughlin, 841 F.2d 48 (2d Cir. 1988); premature return to prison after surgery, Kelsey v. Ewing, 652 F.2d 4 (8th Cir. 1981); diabetes requiring special diet, Johnson v. Harris, 479 F.Supp. 333 (S.D.N.Y. 1979); a bleeding ulcer, Massey v. Hutto, 545 F.2d 45 (8th Cir. 1976); and loss of an ear, Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (claim stated against a doctor who threw away a prisoner’s ear and stitched up the stump)." Nance v. Kelly, supra , 912 F.2d 607 (Pratt, J., dissenting).

Second, the government official must act with a sufficiently culpable state of mind. Wilson v. Seiter, supra , 501 U.S. 297; Faraday v. Commissioner of Correction, supra , 288 Conn. 338. In a case such as this, a "sufficiently culpable state of mind" is "one of deliberate indifference to inmate health or safety." (Citations omitted; internal quotation marks omitted.) Farmer v. Brennan, supra , 511 U.S. 834. "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." Faraday v. Commissioner of Correction, supra , 338; see also Farmer v. Brennan, supra , 837. Thus, "an official’s failure to alleviate a significant risk that he should have perceived but did not [does not violate the eighth amendment]." (Internal quotation marks omitted.) Faraday v. Commissioner of Correction, supra , 338, quoting Farmer v. Brennan, supra , 838.

Accordingly, to establish a claim of deliberate indifference in violation of the eighth amendment, the petitioner must prove that DOC’s actions constituted "more than ordinary lack of due care for the prisoner’s interests or safety." Faraday v. Commissioner of Correction, supra , 288 Conn. 338-39, quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). "Deliberate indifference is a stringent standard of fault requiring proof of a state of mind that is the equivalent of criminal recklessness." (Citations omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correction, supra , 339. Mere professional negligence is insufficient to meet the petitioner’s burden. Id. , 339-40. Consequently, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the [e]ighth [a]mendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, supra , 429 U.S. 106. However, medical malpractice can rise to the level of deliberate indifference when the malpractice involves "culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm." (Internal quotation marks omitted.) Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); Faraday v. Commissioner of Correction, supra , 288 Conn. 340.

"When the basis for a prisoner’s Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner’s underlying medical condition alone in analyzing whether the alleged deprivation is, in objective terms, sufficiently serious, to support an Eighth Amendment claim. (Citation omitted; internal quotation marks omitted.) Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). In a case where the inmate is receiving appropriate on-going treatment "but, instead brings a narrower denial of medical care claim based on a temporary delay or interruption in treatment, the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner." Id., 186. Thus it is the "particular risk of harm faced by a prisoner due to the challenged deprivation of care," id. , that is of relevance. "For example, the failure to provide treatment for an otherwise insignificant wound may violate the Eighth Amendment if the wound develops signs of infection, creating a substantial risk of injury in the absence of appropriate medical treatment." Id. However, even when the inmate suffers from a serious medical condition, the risk may be absent where the alleged lapses in treatment are "minor and inconsequential." Id.

The fact that a doctor may render substandard care or that an inmate disagrees with the level or manner of care rendered "does not amount to a constitutional violation [and] falls short of cruel and unusual punishment." Faraday v. Commissioner of Correction, supra , 344. It is well established that as long as the treatment given is adequate, the petitioner’s preference for a different treatment does not give rise to an eighth amendment violation. Chance v. Armstrong, supra , 143 F.3d 703. The "essential test is one of medical necessity and not one simply of desirability." (Internal quotation marks omitted.) Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).

The petitioner’s first allegation is that DOC has failed to provide adequate and necessary surgical care and treatment for his shoulder injuries. The evidence does not support this allegation. The petitioner’s shoulder has undergone several surgeries in the past. There are no further surgeries that are medically recommended. The petitioner has received cortisone injections and has been referred to a specialist for evaluation. The shoulder is afflicted by arthritis and degenerative joint disease, and shoulder replacement surgery is not medically recommended for the petitioner. A wedge to provide the petitioner better comfort while in bed has been offered to him. The tension bands have been available to the petitioner, though he has difficulty using them because of the pain in his shoulder. The court concludes, based on the foregoing, that DOC has not willfully disregarded the petitioner’s should injury.

The petitioner’s second allegation is that DOC has failed to provide adequate and necessary surgical care and treatment for his foot. A related claim is that DOC has failed to provide the necessary footwear to the petitioner. There is no evidence of what other surgical procedures are medically warranted. The petitioner finds the New Balance sneakers to be more comfortable than the orthopedic shoes available from DOC. There was no medical evidence that the type of sneakers the petitioner prefers are medically necessary; nevertheless, he has been issued a sneaker pass. Dr. Wright, a podiatrist who has treated the petitioner’s foot, indicated that he would look into whether DOC can obtain the sneakers directly through the purchasing clerk. It is unclear from the evidence presented at the habeas trial whether the petitioner is responsible in part or in whole for the cost of sneakers obtained directly through the DOC purchasing clerk, or whether that merely lowers the cost to the petitioner. Considering all the evidence pertaining to the petitioner’s foot, the court cannot conclude that DOC has been deliberately indifferent to the petitioner’s foot injury or failed to provide him with necessary footwear in violation of the eighth amendment.

Several other claims in the amended petition relate to the petitioner’s RSD, and the pain management medications. The petitioner alleges that DOC is not providing adequate and necessary palliative care, palliative housing, and specialist care. As detailed in the court’s factual findings, the RSD is caused by the improper processing of pain signals. There are limited medications available to treat the pain suffered by patients afflicted with RSD. DOC referred the petitioner to an outside pain management specialist, Dr. Kost, who has worked together with the petitioner to develop a pain management regimen.

Various and numerous pain management medications have been tried, often in combination, to treat the RSD pain. These medications have been effective, albeit to varying degrees, but both side effects such as opioid addiction and concerns relating to prison security impact the distribution and long-term use of the medications. New medications such as Belbuca may be available to the petitioner through DOC, but DOC’s administration of Belbuca must be triggered by a referral from Dr. Kost, which inexplicably has not yet happened. The petitioner has received ten sessions of a new treatment procedure, Calmare, but that proved unsuccessful in reducing the petitioner’s RSD pain. A procedure call OSKA was done but that also proved to be unsuccessful.

The petitioner’s chief complaint about his pain medication is that the breakthrough medication is not provided in an immediate or timely fashion. However, breakthrough medication is needed when the petitioner’s pain increases in between the times of regularly scheduled doses. When the pain "breaks through" in such a manner, he is permitted to take an extra dose of his pain medication. Since there is no scheduled time for this breakthrough medication, its delivery to the petitioner will be conditioned, at least to some degree, on the availability of nurses and medical staff at that particular time. Thus, quick access to medications used for break through pain will be impacted by varying security concerns and controlled movement of inmates in correctional facilities. The court is cognizant of the high levels of pain experienced by the petitioner, but cannot conclude that a brief delay in providing the petitioner with pain medication which is caused by institutional demands, violates the eighth amendment.

The evidence presented to this court regarding the petitioner’s palliative care and housing (mattress, fan, etc.), as well as the care by a pain management specialist such as Dr. Kost, fails to prove that DOC has been willfully disregarding the petitioner’s RSD condition. Contrary to the petitioner’s claims, the evidence shows that the petitioner has received appropriate medical care and attention. There is no evidence proving that the petitioner’s housing in a special cell block for inmates with disabilities intentionally or purposefully interferes with his palliative care. The petitioner has been referred to a pain management specialist, who has treated the petitioner. Regrettably, the access to certain controlled substances in a prison setting presents security and inmate management concerns that are within the province of correction officials. These and other dynamics unique to prisons will impact inmates and the medications administered to them while they are incarcerated. Here, the petitioner has failed to present evidence substantiating willful disregard by DOC of the petitioner’s RSD.

The petitioner further claims that DOC has failed to adequately provide adequate and necessary physical therapy for treatment of his RSD, shoulder and foot injuries, and muscle atrophy. Again, the evidence does not support these claims. The petitioner has received the tension bands so he can perform physical therapy exercises in his cell, but his shoulder pain interferes with doing the exercises. Thus, he has indicated to nurses that he would not use them. The bands, if not used, would understandably present security concerns and warrant removal from the petitioner’s cell. There was no evidence presented as to what physical therapy is appropriate or should be considered for the petitioner’s foot, let alone the petitioner’s RSD, which he offers as an explanation as to why he cannot perform physical therapy exercises. Dr. Wright acknowledged that the petitioner may benefit from another outside referral for physical therapy.

Another of the petitioner’s claims is that DOC has failed to adequately provide him with necessary testosterone treatments. However, it was the petitioner who, on his own initiative and against the medical advice of Dr. Wright, stopped taking the testosterone because it was making him "freak out." Dr. Wright informed the petitioner he could not simply stop taking testosterone. The petitioner has agreed to resume taking testosterone. Given the petitioner’s own testimony, the court fails to see how DOC has violated the eighth amendment in this regard.

The last allegation of treatment failures relates to the petitioner’s chronic but intermittent blisters and open sores. The blisters appear and worsen when the petitioner’s RSD flares up. In spite of the petitioner’s belief that the blisters need to be washed with special soap, which has been available occasionally to the petitioner, Dr. Wright testified that the soap is not medically necessary. Regular soap is sufficient; nevertheless, Dr. Wright has written an order for the special soap.

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The petitioner alleges that the respondent’s deliberate indifference to his medical needs has resulted in him experiencing severe pain, discomfort, and distress, thereby constituting a violation of constitutional safeguards. The petitioner seeks habeas corpus relief in the form of orders from the habeas court mandating that DOC provide him with specific medical care. Additionally, the petitioner asks the habeas court to reimburse him for medical expenses he has incurred, including litigating the present matter. The petitioner also requests that the habeas court order his release to a nursing facility.

The court has no doubt that the petitioner’s conditions cause him severe pain and discomfort on a daily basis. The court is mindful of the petitioner’s afflictions and how they negatively impact his day-to-day existence. The petitioner’s complaints, nevertheless, in large part pertain to DOC’s interventions not having eliminated or significantly mitigated his pain. The petitioner’s affliction with RSD causes the majority of his pain, not the medical care provided by DOC. A claim that the petitioner continues to experience pain despite appropriate and medically sound treatment, absent neglect or willful disregard, does not state a claim of an eight amendment violation.

The evidence presented to this court does not substantiate the allegations that DOC has been deliberately indifferent to his medical needs. To the contrary, the evidence shows that DOC has made reasonable efforts to treat the petitioner’s various conditions in a variety of ways. Additionally, although a habeas court can order relief to correct constitutional violations, remunerative awards do not fall within forms of habeas corpus relief this court can grant.

The petition’s claims, therefore, must be denied.

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Notes:

The petitioner initiated another habeas corpus petition, docket number CV-17-4008635-S, concerning his medical care for his right arm and shoulder. The 2017 case was consolidated into the present matter. The amended petition in the present matter, therefore, encompasses all of the petitioner’s medical treatment claims beginning with the 2012 petition.

The petitioner also alleged that DOC has failed to provide him with necessary clothing. The petitioner testified, however, that DOC provided him with a shirt that addressed his concerns.

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