Connecticut Cases February 14, 2019: Cerilli v. Commissioner of Correction

Case Description

UNPUBLISHED OPINION

OPINION

Bhatts, J.

The petitioner, Raymond Cerilli, brings this petition for a writ of habeas corpus alleging that his eighth amendment rights are being violated by the respondent’s ("DOC") continued failure to adequately manage his pain and to provide him proper treatment for his diabetes. His relief requested is one additional dose of five milligrams of oxycodone per day and an elimination of certain foods from his diet. Having considered the evidence and the arguments of the parties, the court determines that the petitioner’s claim is not proven. Thus, the petition is denied.

The petitioner filed this petition for a writ of habeas corpus on August 7, 2017. The petitioner filed a second petition for writ of habeas corpus on September 27, 2017. The two matters were consolidated and tried together on January 31, 2019. The parties submitted exhibits, the petitioner testified on his own behalf and the respondent presented the testimony of Dr. Cary Freston.

I. FACTS

The petitioner has been in DOC custody since at least 1991. He suffers from a long history of lumbar degenerative disc disease, cervical spine degenerative disease and upper and lower extremity radiculopathy. He also has a wrist injury which is not the subject of either of these petitions. He was involved in an accident while in a DOC transport van which exacerbated his pain. In addition, he was diagnosed with diabetes in the past few years. DOC’s plan to treat all his conditions is to manage his pain through medications. After trial and error with several medications to which the petitioner may have reacted poorly, DOC is currently administering him five milligrams of oxycodone— a "medium strength opioid narcotic"— twice daily. This provides the petitioner with relief. DOC has determined that a third dose is not medically necessary or required. The petitioner has repeatedly indicated to DOC and indeed maintained at trial that he does not wish to undergo surgery for his back pain at UConn. However, an orthopedic spine specialist at UConn who examined the petitioner indicated that surgery was not recommended because the outcome was predicted to be poor. Due to the generalized or "multi-factorial" nature of his back and nerve pain, there was no assurance that the surgery would relieve or cure his pain. The specialist further indicated that he was a poor candidate for pain management using a narcotic. The petitioner’s lower back condition is a chronic condition which rarely is managed effectively only with narcotics. Due to building tolerance over time, narcotics become less effective. Thus, adjunctive medical and non-medical therapies are employed. This type of "multi-factorial" chronic back pain can only be managed, not entirely eliminated. The petitioner could receive epidural steroidal injections to assist with his pain, but he has made clear to DOC that he will not engage in any treatment besides oxycodone.

His diabetes is non-insulin dependent, which means it can be controlled through oral medicine. He has been prescribed an oral medication, Metformin, and this has resulted in his diabetes being brought under control. He is on a diabetic diet with a specific calorie intake amount over a twenty-four-hour period. This makes it easier to adjust his medicine as needed. He is also on a low cholesterol diet. His last hemoglobin AIC blood test indicated a level of 7.3, which was a decrease from a previous test result of 9, which is in the moderate range. Anything under 7 is "well-controlled" and anything under 6.7 is non-diabetic.

II. DISCUSSION

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, 288 Conn. 326, 328, 952 A.2d 764 (2008). 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.

A. Deliberate Indifference

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.

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 , 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).

A review of the testimony and exhibits submitted reveals that DOC has not been deliberately indifferent to the petitioner’s serious medical needs. While there is no dispute that the petitioner suffers from "serious medical conditions," DOC is appropriately treating him. With regards to his chronic back pain, the petitioner has refused surgery, and indeed, it appears that surgery is not medically recommended for the petitioner. Instead, DOC is managing the petitioner’s pain through the administration of a narcotic. He is receiving two doses, but wishes to receive a third. The testimony indicates that while he may not be a good candidate for narcotic pain management, DOC is nevertheless providing it to him. Chronic back pain is usually managed with adjunctive therapies, because the use of narcotics causes several less than desirable side effects such as addiction, ineffectiveness, respiratory problems, sedation and possibly even death. The testimony establishes that the petitioner is repeatedly seen for his pain and DOC has been responsive to his needs. Simply put, the petitioner wants one additional dose of pain medication and DOC has determined that it is not medically necessary and in fact, may not be in his best interests. This boils down to a dispute about the type of treatment being given to the petitioner and the court cannot conclude that the petitioner has met his high burden of proving deliberate indifference.

The petitioner also suffers from diabetes. His diabetes is being managed and controlled through oral medication and the implementation of a diabetic diet with a predetermined amount of calories that he can consume. The petitioner asserts that certain foods in his diet caused his diabetes. There is no evidence to support this. The petitioner’s latest hemoglobin AIC blood test indicates "near-perfect control" of the diabetes. Thus, this court concludes that DOC is appropriately treating his diabetes and the petitioner has not met his burden of proof.

III. CONCLUSION

There is no doubt that the petitioner’s chronic back and nerve pain, along with his diabetes, are serious medical conditions that require appropriate medical care and treatment. The evidence shows that DOC is providing that medical care. The petitioner disagrees with the amount of medication that DOC is administering, but as our law demonstrates, that does not rise to the level of deliberate indifference. The petitioner wishes to have his diet modified, but the evidence shows that his diet is appropriate for his needs. Further, his diabetes is being controlled through oral medication and diet. There is no evidence of any other serious medical conditions that are not being treated by DOC. While there is no doubt that the petitioner continues to experience pain due to the chronic nature of his condition, this court cannot find that DOC has been deliberately indifferent to his needs. The petition must be denied.

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Notes:

Docket Number CV17-4009125-S, which has been consolidated into this operative petition.

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