Free Response to Motion - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

) ) Case No. 007-006 Plaintiff, ) JURY TRIAL DEMANDED v. ) ) CORRECTIONAL MEDICAL SERVICES, ) SCOTT S. ALTMAN, and ) CATHY KIONKE ) ) Defendants. ) -----------------------------------------------------DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF Defendants Correctional Medical Services, Inc. ("CMS"), Scott Altman and Cathy Kionke (collectively "Defendants") by and through their undersigned counsel of record, hereby respond to Plaintiff's Motion for Injunctive Relief (D.I. 28) and state as follows: 1. "[T]he grant of injunctive relief is an `extraordinary remedy, which should be granted

KEVIN C. BRAITHWAITE,

only in limited circumstances.' " Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989) (quoting Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988)). In ruling on a preliminary injunction, the Court must consider: 1) the likelihood of success on the merits; 2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; 3) the extent to which the defendant will suffer irreparable harm if the requested relief is granted; and 4) the public interest. See Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir.1995). An injunction should only issue if all four factors favor injunctive relief. See S & R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 374 (3d Cir.1992). Plaintiff does not carry this burden and so the Motion should be denied.

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2.

Plaintiff's Motion seeks the following relief: "any and all dental treatment to properly As shown below,

repair this Plaintiff's dental needs" and money damages. (D.I. 28 at 4).

Plaintiff has been offered such treatment, but has declined it. Plaintiff is not entitled to such relief and so the Motion should be denied. Plaintiff's Motion for Elective Treatment Should be Denied 3. Plaintiff cannot support his burden here. Plaintiff alleges that some teeth were injured in

a scuffle with prison guards on October 9, 20041. (D.I. 2, Complaint at 3) Plaintiff admits that he was told by prison dentist Dr. Kionke that there were two acceptable forms of treatment, extraction or root canal. (Id. at 4) He told her he preferred root canal, but was also told that such a procedure would have to be approved by the department of corrections. (Id.) Dr. Kionke submitted the request and it was approved. Affidavit of Dr. Kionke, Exhibit "A"). On further review of the Plaintiff's records, however, Dr. Kionke discovered that the condition which required either extraction or root canal pre-existed Plaintiff's incarceration and was not caused by prison personnel. (Id.) When Dr. Kionke provided that information to the Department of Corrections, the approval for root canal was rescinded. (Id.) Plaintiff has subsequently again been offered extraction, but has declined. (Id.) 4. As stated above, to succeed on this Motion, Plaintiff must persuade the Court on four

elements: 1) the likelihood of success on the merits; 2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; 3) the extent to which the defendant will suffer irreparable harm if the requested relief is granted; and 4) the public interest. See Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir.1995). An injunction should only issue if all

1

Although the Plaintiff makes allegations regarding his "teeth" he never identifies specifically which tooth or teeth are at issue. However, his dental records reflect discussion of extraction or root canal for tooth number 9. Exhibit "B"

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four factors favor injunctive relief. See S & R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 374 (3d Cir.1992) (emphasis supplied). 5. Plaintiff cannot show that he is likely to succeed on the merits. In order to do so, he must

allege a serious medical need and acts or omissions by prison officials that indicate deliberate indifference to such need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Defendants do not concede that the condition complained of is a "serious medical need", and they have not been indifferent in any manner. Plaintiff has been offered treatment (extraction) but has declined. Plaintiff is entitled to adequate medical care, not to direct the type of care he receives: However, "a prisoner has no right to choose a specific form of medical treatment," so long as the treatment provided is reasonable. Poole v. Taylor, 466 F.Supp.2d 578, 589 (D.Del.2006) (citing Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir.2000)). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate's behalf. Estelle, 429 U.S. at 107, 97 S.Ct. 285. Moreover, allegations of medical malpractice are not sufficient to establish a constitutional violation. White v. Napoleon, 897 F.2d 103, 108-109 (3d Cir.1990); Spruill v. Gillis, 372 F.3d at 235. Mere disagreement as to the appropriate treatment is insufficient to state a constitutional violation. Spruill, 372 F.3d at 235. See Blackston v. Correctional Medical Services, Inc., --- F.Supp.2d ----, 2007 WL 2325210 * 3 (D.Del., August 16, 2007) (emphasis supplied) (granting summary judgment in favor of medical provider and against plaintiff/prisoner); accord Pecoraro v. Correctional Medical Services, 2007 WL 1560302 at *4 (D.N.J., May 25, 2007)2 (stating prisoner's subjective dissatisfaction with his dental care, and not a deliberate withholding or delay of treatment as alleged in the Complaint, is not in itself indicative of deliberative indifference) (citing Andrews v. Camden County, 95 F.Supp.2d 217, 228 (D.N.J.2000)).
2

Unreported decisions are included as Exhibit "C".

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In addition, Plaintiff's prayer for relief speaks volumes on the issue of whether his condition constitutes a "serious medical need". That prayer requests "all necessary cosmetic procedures to correct the damage to teeth that could have been prevented". Cosmetic procedures do not constitute serious medical needs. 5. Because the Plaintiff cannot demonstrate a likelihood of success on the merits, this

Motion should be denied. See S & R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 374 (3d Cir.1992) (stating an injunction should only issue if all four factors favor injunctive relief). Nor is there any threat of irreparable harm here. Plaintiff has been offered a form of treatment which is appropriate, adequate and within the standard of care. (See Exhibit A) 6. The third element of the test tips in favor of Defendants as well, to the extent that

granting Plaintiff the requested treatment will set a precedent to provide elective, cosmetic surgical procedures to inmates at incredible expense to the State of Delaware and its taxpayers. The fourth element, service of the public interest, implicates the cost and inequity to the taxpayer of providing funding for such elective, cosmetic surgical procedures to inmates when such services may not be affordable to taxpayers at large, who then would have to live with their condition just at the Plaintiff does. Without doubt, there are free, law-abiding taxpayers who are faced with the choice of treating dental problems by extraction or root canal, but cannot afford the more expensive option and must make do with the other acceptable treatment, extraction. Plaintiff should not be permitted to manipulate the legal system to obtain medical benefits that are not available to law-abiding citizens. This Motion should be denied. WHEREFORE, for the foregoing reasons, Defendants hereby respectfully request Plaintiff's Motion be denied.

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BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Correctional Medical Services, Inc., Scott Altman, Cathy Kionke, DDS Date: January 9, 2008

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 9th day of January 2008, the foregoing Defendants' Opposition to Plaintiff's Motion for Injunctive Relief was filed via CM/ECF and served First Class Mail upon the following:

Kevin C. Braithwaite #315294 1181 Paddock Rd. Smyrna DE 19972

/s/ James E. Drnec James E. Drnec, Esquire (#3789)