Opinion
No. CV 05 4000316 S
November 18, 2008
MEMORANDUM OF DECISION
The petitioner, Omar Miller, filed a petition for a writ of habeas corpus on February 22, 2005, challenging the conditions of his confinement. The petitioner, after a jury trial, was convicted of murder in violation of General Statutes § 53a-54a. On November 6, 1991 the petitioner was sentenced to thirty-five years incarceration.
The petitioner filed a subsequent petition on October 26, 2005, bearing docket no. CV 05 4000762. An amended petition was filed in the latter action on February 27, 2006. The petitions were consolidated on January 2, 2008 by the court, A. Santos, J. In both petitions, the petitioner alleges that he has been denied appropriate medical treatments in violation of the eighth amendment to the United States Constitution. Specifically, he claims that (1) despite having continuous pain and swelling in his knees, the respondent has denied his requests to undergo a magnetic resonance imaging test (MRI) so that the extent and proper course of treatment for his condition may be more properly determined; (2) the respondent has denied his requests for evaluation by a neurology specialist to determine the proper course of treatment for his facial paralysis and Bell's Palsy; and (3) sharing a double cell aggravates his asthma but that the respondent has refused his requests to be placed in a single cell. The petitioner also claims that he is being discriminated against on the basis of both his race and disabled status. As prayers for relief, the petitioner requests that the court order (a) specialty treatment for both his knees, (b) an MRI to determine the extent of his knee injury, (c) the repair of his facial nerves via medicine, electromyosis, surgery or other procedures, (d) permanent single cell status for the petitioner, (e) his immediate release or sentence reduction, or (f) any other relief the court deems appropriate.
In light of the fact that the cases have been consolidated, and in the interests of concision, the various claims arising from the two petitions will be treated as comprising a single petition for the purposes of this decision.
The respondent filed a return in the controlling case on March 18, 2005, and a return in the second case on November 26, 2007, denying the material allegations in both petitions and asserting the special defenses that the petitioner is receiving the appropriate medical care for his conditions.
The petitioner filed a reply to the return in the controlling case on February 9, 2006, in which he denied that he is receiving appropriate medical care and also added an "addendum" to his petition in which he claims that he has been retaliated against by having his medication discontinued after he filed this habeas petition.
The court conducted a trial on the merits over the span of many months, convening on January 2, 2008, March 25, 2008, April 30, 2008, May 22, 2008, June 16-17, 2008 and July 15, 2008. The petitioner submitted seventy-nine exhibits, mostly medical reports and requests for treatment, and the respondent submitted four exhibits containing similar material. Testifying at trial were the petitioner, Dr. Timothy Silvis, an internist employed by the Department of Correction, Dr. Kourosh Parham, an ear, nose and throat doctor employed by the University of Connecticut Health Center, Richard Furey, health services administrator with the Department of Correction, and Dr. Edward Blanchette, clinical director for the Department of Correction.
FINDINGS OF FACTS
From 1991 to the present, aside from a brief interlude of approximately a month when the petitioner escaped in 1997, the petitioner has been in the custody of the Department of Correction. During this time and especially subsequent to 2002, the petitioner has made numerous requests for various medical treatments and actions from the respondent. Pursuant to an agreement between the Department of Correction and the University of Connecticut Health Center (UCHC), a treating physician may request specialty health service evaluation, treatment or diagnostic testing from UCHC for an inmate if medically indicated. (Ex. 52.) The body reviewing such decisions is the Utilization Review Committee (URC); if an inmate appeals a URC decision, the clinical director of the Department of Corrections reviews the decision and upholds or reverses it in his discretion. The department's clinical director at all times relevant to this petition was Dr. Edward Blanchette.
The petitioner has a long history of maladies dating back to 1986, when he underwent a mastoidectomy to remove a cholesteatoma in his right ear. Subsequently, the petitioner required periodic medical care and maintenance to clean the ear and stave off infection. He has since had at least two full-blown ear infections that required the use of antibiotics. He was recently issued ear plugs in the shower to prevent water from getting in his ear to avoid infection. Possibly due to one infection in 2002, the petitioner began to suffer facial paralysis and was diagnosed with Bell's Palsy, a neurological disorder affecting certain facial nerves. As a result, the petitioner is unable to fully close his right eye, his facial muscles droop, and he has trouble eating and drinking because he lacks control over the necessary muscles. He has to tape his eye shut at night, wear sunglasses when he goes outside and occasionally use drops to keep it moist. The petitioner has, on numerous occasions, requested from the respondent consultation with a neurologist and/or to have an electromyogram done to determine whether he could benefit from surgery to repair the facial nerves and restore muscle function, or to have a weight implanted in his eyelid to allow it to close completely.
The URC has denied all such requests, and Dr. Blanchette has uniformly upheld the decisions whenever appealed. Dr. Blanchette testified that the petitioner's nerve condition does not require surgery and that his current precautions are sufficient to prevent further injury to his eye. According to Dr. Blanchette, any surgery to repair muscle function would be cosmetic, and that hypoglossal surgery, a partial nerve transplant, is never performed in a patient such as the petitioner's whose Bell's Palsy is mild to moderate. It is so found.
The petitioner has also had a history of asthma, which started when he was a child, disappeared for a time but resurfaced around 1990 when the petitioner was nineteen years old. His asthma causes his chest to feel tight and inhibits his breathing, and he has taken various medications on a regular basis to reverse or at least ameliorate his symptoms. He is currently taking Advair and an albuterol inhaler.
The petitioner testified that he is currently sharing a cell and that having a cellmate makes him anxious, which can cause asthma attacks. He also complained that the air quality is poor which has the same effect. He has made several requests for a single cell, all of which were denied by the respondent.
Dr. Silvis testified that asthma can be life-threatening if untreated. Both Drs. Blanchette and Silvis, however, testified that the petitioner's asthma is not directly influenced by his double-cell status, is not grounds for a single cell and is being adequately controlled through medication. It is so found.
Finally, the petitioner experiences chronic pain and swelling in both knees. Dr. Silvis testified that the petitioner has arthritis in both knees. The petitioner testified that after 2004, he began to have constant pain, especially after exercise, mostly in the right knee but also in the left. The petitioner was given braces for his knees, which initially he claimed helped but later said were not alleviating the pain. He testified that he cannot take Motrin because it upsets his stomach. He also complained that the small area of his cell was insufficient to perform his recommended knee exercises, and that he was not allowed sufficient exercise time outside his cell. The petitioner did, however, have a job in the laundry room of the prison where he worked from 10:00 P.M. to 6:00 A.M. six days a week. Dr. Silvis testified that the petitioner's condition did not appear to impair his work activity or ability to climb stairs, and that jumping and climbing were not required activities for him. It is so found.
The petitioner had several X-rays taken, which showed standard joint alignment and no significant abnormalities. Dr. Silvis testified that the extent of the petitioner's arthritis would not be known unless an MRI was performed, and requested one on the petitioner's behalf. The URC and, on appeal, Dr. Blanchette denied the request. Dr. Blanchette testified that the petitioner's condition did not indicate that he was a surgical candidate and, therefore, an MRI was not warranted because it would not provide any information that would be of benefit to the petitioner. It is so found.
Additional facts will be discussed as necessary.
DISCUSSION
The standard governing habeas corpus claims based on indifference to medical needs was recently reiterated by the Supreme Court in Faraday v. Commissioner of Correction, 288 Conn. 326, 952 A.2d 764 (2008): "The [e]ighth [a]mendment prohibits the infliction of cruel and unusual punishments . . . This includes punishments that involve the unnecessary and wanton infliction of pain . . . In order to establish an [e]ighth [a]mendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to [his] serious medical needs . . . The standard of deliberate indifference includes both subjective and objective components. First, the alleged deprivation must be, in objective terms, sufficiently serious . . . Second, the [government official] must act with a sufficiently culpable state of mind . . . 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 . . . Thus, an official's failure to alleviate a significant risk that he should have perceived but did not [does not violate the eighth amendment] . . .
"Accordingly, to establish a claim of deliberate indifference in violation of the eighth amendment, a prisoner must prove that the officials' actions constituted more than ordinary lack of due care for the prisoner's interests or safety . . . `[D]eliberate indifference' is a stringent standard of fault . . . requiring proof of a state of mind that is the equivalent of criminal recklessness . . . 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 . . . At the same time, however, while mere medical malpractice is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate indifference; namely, 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." (Citations omitted; internal quotation marks omitted.) Id., 338-41.
"A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." (Internal quotation marks omitted.) Harrison v. Barkley, 219 F.3d 132, 136 (2d cir. 2000). By way of example, "a prisoner with a hang-nail has no constitutional right to treatment, but if prison officials deliberately ignore an infected gash, the failure to provide appropriate treatment might well violate the Eighth Amendment." (Internal quotation marks omitted.) Id., 137.
A. Request for a Single Cell
The petitioner contends that, because occupying a shared cell exacerbates his asthma, it is cruel and unusual to deny him a single cell. He also invokes the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA); and claims that he is being discriminated against due to his disabled status, and that reasonable accommodations must be provided to him under the Act.
The petitioner claims that he is being discriminated against because of his disability in violation of the fourteenth amendment to the United States Constitution. None of the evidence presented even remotely supports this contention. Accordingly, the claim is deemed abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007). The court posits that perhaps the petitioner is confusing a violation of his rights as a person with a disability under the ADA with the use of his disability as a reason for negative action or retaliation.
The petitioner's claim of racial discrimination also fails for the same reasons; the only evidence that could conceivably support such a claim is the petitioner's isolated statement at trial that "single cells are for Caucasians," which is not particularly credible and is insufficient to support such a claim.
From the outset, it must be noted that the petitioner's reliance on the ADA is misplaced. It is immaterial whether the petitioner's condition falls under the ADA or whether he is entitled to relief thereunder because the ADA is irrelevant to the determination of whether the respondent has violated his eighth amendment rights, even if both claims revolve around the same facts and circumstances.
To support his eighth amendment claim, the petitioner must demonstrate that the respondent deliberately ignored a serious risk of harm by failing to permit him a single cell. The only evidence he has proffered in this regard is his own testimony that sharing a cell makes him anxious and triggers and exacerbates his asthma symptoms. Both testifying experts agreed that sharing cell space would have no effect on the petitioner's asthma
In Fuller v. Commissioner of Correction, 75 Conn.App. 133, 815 A.2d 208, cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003), the petitioner alleged, inter alia, that the respondent's "practice of confining two inmates in the same cell (double celling) resulted in a loss of her privacy, subjected her to malodorous and unhealthy conditions, and required her to live with numerous cell mates who made threatening comments." Id., 135. The Appellate Court upheld the habeas court's denial of the petition, recognizing that "double celling inmates in units built to house only one inmate, by itself, does not result in any deprivation of basic human needs. The petitioner has only alleged that double celling made her incarceration uncomfortable, and she has not connected it to other conditions affecting a prisoner's quality of life, such as inadequate food, improper medical care or deprivation of exercise. Therefore, we agree with the court that the deprivation was not `sufficiently serious' to demonstrate that the conditions fell beneath the minimal civilized measure of life's necessities . . . We have no doubt that sharing a cell with another inmate may sometimes be uncomfortable; however, as the Supreme Court has stated, the [c]onstitution does not mandate comfortable prisons . . . To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." (Citations omitted; internal quotation marks omitted.) Id., 139.
While the petitioner in the present case presents the added encumbrance of an asthmatic condition, there is no credible evidence suggesting that his asthma is significantly exacerbated by the double cell setup — other than that, perhaps, it fosters anxiety which in turn triggers asthmatic symptoms. Even viewing the petitioner's claims generously, his situation does not "fall beneath the minimal civilized measure of life's necessities." The record reveals that the petitioner's asthma is reasonably controlled through medication, and his claims that having a cellmate somehow diminishes the air quality or amount in his personal area (exh. 22) are beyond credence. X-ray examination of the petitioner's lungs revealed no significant problems. (Exh. A, pp. 10, 228-29, 232.) Both Drs. Silvis and Blanchette testified that sharing a cell has no detrimental effect on his asthma, and that his asthma is being reasonably controlled with medication. In addition, Dr. Silvis testified that there are other severe asthmatics who do not have a single cell. Moreover, the petitioner is not aggressively pursuing mental health treatment for anxiety, the true culprit if there is any exacerbating his asthma. He testified that he lacks opportunity for exercise and that being locked in his cell is "paralyzing," "depressing" and "unproductive." However, as our courts have often noted, this is merely part and parcel of the valid punishment imposed for breaking the law. In short, the petitioner has failed to present any credible evidence to suggest that denying him a single cell constitutes "deliberate indifference to a serious medical need," and this claim is without merit.
The petitioner has used various medications over the years for his asthma, including albuterol, prednisone, singulair and advair. The record reflects that several times, in response to complaints from the petitioner, a different medication or dosage was prescribed. (Exh. 32.) The petitioner admits that his current regimen, especially the use of advair, significantly improves his symptoms.
The petitioner has been seen on a number of different occasions for mental health issues, but he testified that he refused a recommended medication because he is on many other medications already and that he avoided seeking help for his anxiety sometimes for fear of being transferred to another facility. He also has refused to comply with many of the mental health recommendations he received. (Exh. A, p. 21.)
B. MRI for Knee Condition
The plaintiff's next claim attacks the respondent's denial of an MRI for his knee pain and swelling. The respondent denies that an MRI is medically necessary, and argues that the petitioner is not a candidate for surgery so the results of an MRI would not be beneficial.
The petitioner also requested that he be allowed to order outside shoes because of an ankle and foot condition, and that the recommended commissary shoes hurt his feet. This issue is moot, as the respondent has approved his most recent request to purchase outside footwear.
This issue is more or less on point with that in Faraday v. Commissioner of Correction, supra, 288 Conn. 326. In Faraday, the petitioner had requested an MRI of his back and surgery to repair a suspected herniated disc. He claimed to have had an MRI done ten years prior, but could not produce it at trial. The habeas court initially denied his petition; however, the petitioner subsequently succeeded in obtaining a new MRI and CT scan and submitted them to the court. The court granted the petition upon reconsideration and the Appellate Court affirmed. See Faraday v. Commissioner of Correction, 95 Conn.App. 8, 894 A.2d 1048 (2006). The Supreme Court, however, reversed the judgment because it found there was insufficient evidence presented that the respondent was "deliberately indifferent" to any "serious medical need" of the petitioner.
The petitioner in Faraday, like the present petitioner, was in chronic although intermittent pain, which was being managed with pain medication and bed rest. He sought both an MRI and an examination by a neurologist. The court, however, noted that "to the extent that the evidence suggested that an examination by a neurologist or neurosurgeon might be useful or beneficial, that fact alone is insufficient to demonstrate an eighth amendment violation." Faraday v. Commissioner of Correction, supra, 288 Conn. 343. "[D]isagreements . . . over treatment decisions fall short of cruel and unusual punishment. Thus, disagreements 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 [an eighth amendment] claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the [e]ighth [a]mendment." (Citations omitted; internal quotation marks omitted.) Id., 344.
The present case is also similar to Jolley v. Commissioner of Correction, 98 Conn.App. 597, 910 A.2d 982 (2006), 282 Conn. 904, 920 A.2d 308 (2007). In Jolley, the petitioner complained of chronic pain, and claimed that the URC's denial of his requests for certain tests, including an MRI, to be performed violated his eighth amendment rights. The Appellate Court upheld the trial court's denial of the petition, in spite of the fact that staff at the UConn Medical Center had recommended the tests, reasoning that "[a]lthough the specialist recommended that certain additional tests be performed, the committee, with its superior knowledge of the petitioner's medical history and in its exercise of medical judgment, determined that such tests were unwarranted." Id., 602.
In the present case, the record reveals that the petitioner had "satisfactory joint alignment" (Exh. A, p. 230.) Dr. Blanchette testified that the petitioner has "mild degenerative arthritis" of the sort that occurs as a person gets older. He pointed out that everyone has arthritis to some degree, resulting from compression and distortion of joints over time. The petitioner had "no significant pathology," and was not a candidate for surgery.
The petitioner had been evaluated on numerous occasions for his knees, was prescribed medication and given a series of braces to wear. Rather than "deliberate indifference," the record reveals consistent cooperation by the respondent in addressing the petitioner's condition; although the respondent refused an MRI, it did so not recklessly or arbitrarily but because it felt it was not reasonably indicated by the petitioner's symptoms.
The Second Circuit has held that even something as seemingly trivial as a tooth cavity may amount to a "serious medical need" if it could lead to further, more serious damage, and that refusal to treat it would be "deliberate indifference." Harrison v. Barkley, supra, 219 F.3d 137-38. Dr. Silvis recommended an MRI to determine the full extent of arthritis in the petitioner's knees; however, he at no point contended that it was medically necessary or critical to preventing future injury for the petitioner. While the petitioner characterizes his condition as "degenerative," he did not present any compelling evidence that he potentially faced serious or irremediable harm unless the MRI was conducted. On the basis of this evidence, this court is unable to conclude that the respondent has been deliberately indifferent to any "serious medical needs" of the petitioner, and he is not entitled to relief on this ground.
C. Facial Paralysis and Ear Problems
The petitioner finally argues that the respondent is deliberately indifferent to his Bell's Palsy, which causes partial facial paralysis, prevents him from closing his eye completely and threatens possible corneal damage as a result. The respondent denies that surgery is indicated and maintains that the petitioner's eye health and function can be adequately maintained by other means.
In September 2005, Dr. Parham recommended an electromyography test to evaluate the petitioner's facial nerve for possible further treatment and facial reanimation. (Exh. A., pp. 200-01.) Dr. Parham again recommended "evaluation by an oculoplastic team for possible surgical procedure to close the right eye" in October 2006. (Exh. A, p. 237; exh. 57.) The URC denied the request, "not[ing] long-standing facial paralysis, and that referral is primarily related to appearance." (Exh. A, p. 233; exh. 58.) The petitioner appealed on the ground that "oculoplasties request is for possible restructuring the eye to prevent further damage to the eye. Any cosmetic damage is secondary." There are repeated requests in the petitioner's medical history for the same sorts of consultation, all denied by the URC; the URC noted in October 2006 that Dr. Parham's initial request was made at the behest of the petitioner, and that this request was not repeated at the next mastoid bowl cleaning on May 2, 2007. (Exh. 64.)
A recent eye examination by the optometrist Dr. Smyth in September 2007 revealed no injury to the cornea. (Exh. 64; exh. 33, p. 74.) Dr. Blanchette testified that the petitioner's facial paralysis is not a health threat, particularly in light of the petitioner's eye examinations revealing no damage to his cornea, and that any problem could be properly managed with sunglasses, moistening drops and the petitioner taping his eye shut at night. As for the petitioner's ear condition, he has been allowed in the past to use the handicap showers to prevent water getting in his ear; (exh. 21); and was issued earplugs and ordered a showercap. (Exh. 79.) He was prescribed medication when he got an ear infection; (exh. A, p. 237); and continues to have his mastoid bowl cleaned approximately every six months as recommended by Dr. Spiro. (Exh. 69.)
It is clear from these facts that the petitioner suffers significant inconvenience from his facial paralysis and must take affirmative steps to protect both his right eye and ear from injury or infection. Nevertheless, it does not rise to the level of a "serious medical condition" to which the respondent is being "deliberately indifferent." "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, 288 Conn. 338-39. There is no indication that the petitioner's conditions present a "substantial risk of serious harm" if the current maintenance regimen is continued. Moreover, even if the opposite were true, the respondent's agent rationally concluded, based on his examination of the petitioner and his medical history, that there was no such substantial risk. Thus, he could not be said to have been "deliberately indifferent" to a serious medical need even if one actually existed.
CONCLUSION
The petitioner patently has several recognized medical conditions that impair his quality of life and cause him to suffer to varying degrees. The respondent, however, has no responsibility to alleviate all of the petitioner's medical problems, or to pursue every course of treatment available. Our case law, especially Faraday v. Commissioner of Correction, supra, 288 Conn. 326, makes clear that even the refusal to afford an inmate treatment that would improve his condition does not rise to the level of a constitutional violation if it is not done "recklessly" or if the condition does not pose a severe health risk. To be sure, the limitations imposed by confinement may prevent an inmate from personally addressing his problems, and the respondent unequivocally has a duty to ensure that the prisoner's basic medical needs are being met. This does not, however, entail medical procedures of questionable value or the unqualified use of resources to ameliorate every inconvenient or painful condition faced by an inmate.
The record reveals that most of the petitioner's requests have been addressed in a more or less timely manner. When the petitioner has indicated a bona fide need for surgery, he has been granted it; for example, he was approved for a septoplasty in 2005. (Exh. A, p. 216; exh. 57.) Although on occasion the respondent or his agents has failed to timely respond to the petitioner's requests, or has not directly answered his questions or concerns to his satisfaction in the response, the respondent's conduct falls far short of the "deliberate indifference" constituting grounds for relief in a habeas petition. Therefore, the petition is DENIED. The clerk shall submit a judgment file to the court within thirty days.