Collins v. State of Maine

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. Docket No. CV-12-0394 "d~-. /1 ;W 1 , .I)/f)~- I '-" ,r 0··~'-~; ~'~). · 1 ~ /

LARRY COLLINS,

Petitioner

v. ORDER ON MOTION FOR PRELIMINARY INJUNCTION

STATE OF MAINE THROUGH MAINE CORRECTIONAL CENTER

Defendant .,_•;. ;, ,. , - ·r '•'

BACKGROUND

Petitioner Larry Collins ("Collins"), filed a complaint against the Maine Correctional

Center through the State of Maine ("State"), labeled a "Petition" dated September 24, 2012. In

his complaint, Collins complained about the medical care and eye care provided to him at the

Maine Correctional Center in Windham, where he currently resides, and at the Maine State

Prison, where he was previously treated. Collins seeks, (1) injunctive relief in the form of an

order from this Court to the Maine Correctional Center to transport him to an off facility

provider, and (2) to transport him to "competent eye care professionals" and follow any

recommendations that they make. Collins has also filed a motion for preliminary injunctive

relief dated October 3, 2012 detailing similar complaints about his treatment and seeking similar

relief. DISCUSSION AND ORDER

I. Standard for Preliminary Injunction

In ruling on a preliminary injunction, the court must ordinarily consider four factors: (1)

whether the plaintiffs will suffer irreparable injury in the absence of a preliminary injunction; (2)

whether that injury outweighs any harm which granting injunctive relief would inflict on the

defendant, (3) whether plaintiffs have demonstrated a likelihood of success on the merits (at

most, a probability; at least, a substantial possibility); and (4) whether the public interest would

be adversely affected by granting the injunction. Ingraham v. University of Maine, 441 A.2d 691,

693 (Me.1982). These four criteria "are not to be applied woodenly or in isolation from each

other; rather, the court of equity should weigh all of these factors together in determining

whether injunctive relief is proper in the specific circumstances of each case." Dep't of Envtl.

Prot. v. Emerson, 563 A.2d 762,768 (Me. 1989). For example, ifthe evidence of success on the

merits is strong, the showing of irreparable harm may be subject to less stringent requirements.

!d. (citation omitted).

II. Irreparable Injury

Although the plaintiff has provided the court with his own sworn affidavit in support of his

motion, he has failed to establish any irreparable injury if he is not taken to an outside doctor for

medical treatment. Collins describes in his affidavit his medical conditions such as "black spots"

on his "privates", diabetes, hernias, and vision problems but does not establish what, if anything,

an outside doctor could do differently than those who currently treat him. In contrast, the State

has submitted two expert affidavits, one from Collins' medical provider and one from his

optometrist. While the affidavit of Robert Clinton, M.D., agrees that Collins has medical issues,

it is his opinion that "none of the medical issues ... is serious in nature[]" and believes that " ...

2 Mr. Collins' complaints largely originate from a somatization disorder (what is commonly

referred to as being psychosomatic)." (Clinton Aff. ~~ 6-7.)

III. Balancing of Harms

While the Court recognizes that the transportation and treatment of prisoners to outside

providers places an additional financial burden on the Department of Corrections, a prisoners

rights and health trump the State's fiscal concerns.

Therefore, in this instance, the health of Collins must take precedent over the financial

burden on the State. It may be the case that Collins' ailments are properly diagnosed and the

treatments being provided are appropriate, but as the State's own affidavits make clear Collins

likely suffers from a somatization disorder that makes proper diagnosis more difficult. (See

Roush Aff. ~~ 4-13 ("subjective eye exam results are inconsistent, do not fit any known pattern,

and cannot be explained on either an anatomic or physiological basis"; Clinton Aff. ~ 4 (I [Dr.

Robert Clinton] am ... of the opinion that while Mr. Collins does have some actual medical

conditions, his subjective complaints about them do not match the objective evidence").)

IV. Likelihood of Success

A "likelihood of success on the merits" is "at most, a probability; at least, a substantial

possibility." Bangor Historic Track, Inc. v. Dep't ofAgric., 2003 ME 140, ~ 9, 837 A.2d 129.

This court is not convinced that petitioner has reached either of these benchmarks. Although the

State must provide medical treatment for it prisoners Maine has determined that the only right

that a prisoner has is to adequate care as determined necessary by the facility-treating provider.

34-A M.R.S. §3031(2) (2012). 1

1 34-A M.R.S. §3031 (2) (20 12) states in part that,

Any person residing in a correctional or detention facility has a right to:

3 As the State correctly points out, it has been the law in Maine that when a fact is such that it

cannot be proven by testimony lying within a layperson's knowledge, then a plaintiff is required

to produce expert testimony. See Maravell v. R.J Grondin & Sons, 2007 ME 1, ~ 11, 914 A.2d

709. 712. Here, Collins has failed to file an affidavit from any expert regarding the care that he

has received or what an outside provider may offer differently than what the prison has already

offered. In contrast, the State has provided the court with two expert affidavits, one concerning

Collins' medical care and one concerning his eye care, as well as records supporting the

affidavits. Additionally, Collins has failed to provide the court with any legal basis for his

supposition that a prisoner has the right to outside medical providers. Therefore based on the

legal and factual submissions before the court at this time, there is no likelihood of success on

the merits. See Bangor Historic Track, Inc., 2003 ME 140, ~ 9, 837 A.2d 129, 132.

V. Harm to Defendants and Public Interest Issues

The Court accepts the State's argument that transporting prisoners to outside providers is a

financial burden on taxpayers and a threat to public safety. As the State points out, transporting

prisoners to community providers spends taxpayers' monies for the transport itself; for the

correctional officers doing the transport; and for payment of services rendered by the outside

providers. As for public safety, the State argues that every officer transporting a prisoner in the

community is an officer not on the facility grounds to deal with prisoners there, and every time a

prisoner is taken out of a facility and into the community, there is an increased risk of escape and

2. Medical care. Adequate professional medical care and adequate professional mental health care, which do not include medical treatment or mental health treatment requested by the client that the facility's treating physician or treating psychiatrist or psychologist determines unnecessary. (Emphasis added).

4 harm to the public. Collins has failed to submit any legal memorandum in support of his motion

and to rebut the State's arguments.

Accordingly, the Court denies Collins' request for a preliminary injunction having failed to

establish the four factors required for a preliminary injunction. See Ingraham v. University of

Maine, 441 A.2d 691 (Me.1982).

VI. Physical Examination

Although Collins is not entitled to a preliminary injunction, there remains the issue whether

he may be entitled to some form of relief if he prevails on his "petition." Collins is represented

by counsel. Counsel should confer with counsel for the State to determine whether a Rule 35(a)

order should be entered.

Under Maine Rule of Civil Procedure 35(a) when the mental or physical condition of a party

is in controversy the court may order the party to submit to a physical or mental examination. 2

Here Collins' physical and mental conditions are clearly at the heart of this matter. Collins

alleges that without proper outside medical care he fears that "he will die or go blind[.]"

(Compl. ~ 11.) Although Collins has failed to provide the court with an affidavit from an expert

in support of his motion, the court recognizes the limited resources and opportunities available to

an incarcerated plaintiff to obtain affidavits that support his claim. The court also recognizes that

treatment by outside providers can stress the limited financial and staff resources of the

2 M.R. Civ. P. 35 states in pertinent part:

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a licensed physician or a mental examination by a licensed psychologist, or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

5 Department of Correction. While neither party to this action has explicitly filed a motion for an

independent medical exam pursuant to Rule 35(a), the court would consider such a request

unless the treating providers or the prison determine an outside evaluation unnecessary.Without

the opportunity to be examined by a physician outside those who have already treated Collins, he

will forever remain at a strategic disadvantage throughout the litigation and likely never be given

an opportunity to meet the burdens required by law. However, the Court is limited by 34-A

M.R.S. § 3031(2)(2012).

The entry is:

1. Petitioner's Motion for Preliminary Injunction is DENIED.

2. Pursuant to M.R. Civ. P. 16A(b)(5), the Court orders counsel for all parties to participate in a status conference with the court in the next forty- five days to outline further proceedings.

DATED: May 31,2013 ~.Wheeler Superior Court Justice

6 LARRY COLLINS VS MAINE CORRECTIONAL CENTER UTN:AOCSsr -2012-0093111 CASE #:PORSC-CV-2012-00394

01 0000003530 SLEEK DIANE 6 STATE HOUSE STATION AUGUSTA ME 04333-0006 T LARRY COLLINS PL W/DRWN 12/28/2012 F MAINE CORRECTIONAL CENTER DEF RTND 12/28/2012

02 0000009251 ROBINSON RANDY L PO BOX 10653 PORTLAND ME 04104 F LARRY COLLINS PL RTND 09/24/2012 (

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. Docket No. CV-12-0~9j / JAw .. £?;.AJr1- ';;..;~;J0/3 LARRY COLLINS,

v. DECISION AND JUDGMENT

STATE OF MAINE THROUGH MAINE CORRECTIONAL CENTER ... ::1 ?'f:, ·- ~:, ·: ~~'

Defendant

'·-'::... BACKGROUND

Petitioner Larry Collins ("Collins"), filed a complaint against the Maine Correctional

Center through the State of Maine ("State"), labeled a "Petition" dated September 24, 2012. In

his complaint, Collins complained about the medical care and eye care provided to him at the

Maine Correctional Center in Windham, where he currently resides, and at the Maine State

Prison, where he was previously treated. Specifically, Collins complained about the medical care

provided for him for a hernia and spots on his scrotum and about the eye care provided to him

with regard to eyeglass prescriptions. Collins seeks, ( 1) injunctive relief in the form of an order

from this Court to the Maine Correctional Center to transport him to an off facility provider, and

(2) an order to transport him to "competent eye care professionals" and follow any

recommendations that they make. The Court previously denied a motion for a preliminary

injunction that was filed by Collins. See Order dated May 31, 2013. The State now asks the

court to grant it summary judgment on the grounds that there are no material issues in dispute

about the Collins' medical and eye care treatment. (

STANDARD FOR REVIEW

"Summary judgment is appropriate when there is no genuine issue of material fact that is in

dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v.

Hutchins, 2009 ME 115, ,-r 9, 983 A.2d 382. "An issue is genuine if there is sufficient evidence

supporting the claimed factual dispute to require a choice between the differing versions; an

issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v.

Hemond, 2008 ME 146, ,-r 10, 956 A.2d 104. To survive a defendant's motion for summary

judgment, "the plaintiff must establish a prima facie case for each element of her cause of

action." Watt v. UniFirst Corp., 2009 ME 47, ,-r 21, 969 A.2d 897.

In considering a motion for summary judgment, the court should consider the facts in the

light most favorable to the non-moving party, and the court is required to consider only the

portions of the record referred to and the material facts set forth in the parties' Rule 56(h)

statements. E.g., Johnson v. McNeil, 2002 ME 99, ,-r 8, 800 A.2d 702, 704. Rule 56(h) requires a

party that is opposing a motion for summary judgment to support any qualifications or denials of

the moving party's statement of material facts with record citations. Levine v. R.B.K. Caly Corp.,

2001 ME 77, ,-r 6 n.5, 770 A.2d 653. "All facts not properly controverted in accordance with this

rule are deemed admitted." Rogers v. Jackson, 2002 ME 140 ,-r 7, 840 A.2d 379 (citing M.R. Civ.

P. 56(h)(4)).

With regard to the requirements for responding to a motion for summary judgment, Collins

has failed to follow the requirements ofM.R.Civ.P. 56(h)(2) and (4) that a qualification to a

statement of material fact must be supported by a citation to the record. Collins asserted many

qualifications. In fact, he qualified statements 2-7, 10 and 15. However, he failed to cite to

anywhere in the record where his qualification is supported. Collins relies on the claim that he is

2 a layperson and does not know ifthe objective evidence would be consistent with the State's

treatment providers. Although Collins does not agree with the diagnosis that he is

psychosomatic, he does not deny that the medical providers think he is psychosomatic. Because

Collins has failed to properly respond, all ofthe statements of material fact presented by the

State are deemed admitted.

FACTS

The following facts are deemed admitted by the plaintiff for the reasons set forth above. ' Seven different primary care providers have seen Collins since June 13, 2012, including a doctor

who practices in the community. (DSMF ~ 1.) Collins does have some actual medical

conditions, but his subjective complaints do not match the objective evidence. (DSMF ~ 3.) On

physical examination, he has a mild hernia issue, which does not require surgery or specialist

care. (DSMF ~ 4.) Collins has scrotal venous varicosities, which is a benign condition. (DSMF

~ 5.) None of the medical issues about which Collins complains is serious in nature. (DSMF ~

6.) Prior medical evaluations support that Collins' complaints largely originate from a

somatization disorder. (DSMF ~ 7.) At least three other primary care providers who have treated

Collins share this opinion. (DSMF ~ 8.)

With regard to Collins' eye care, three different optometrists in the last several years have

seen Collins, including two community providers in 2012. (DSMF ~ 9.) Collins subjective eye

exam results are inconsistent, do not fit any known pattern and cannot be explained on either an

anatomic or physiological basis. (DSMF ~ 10.) None of the optometrists has been able to find

any eyeglass prescription to resolve Collins' subjective complaints. (DSMF ~ 11.) In January

2012, an outside optometrist measured Collins' corrected visual acuity as 20/30 in the right eye

and 20/50 in the left eye. (DSMF ~ 12.) That was the same for the right eye and better for the

3 left eye than measurements taken by the same eye care provider on November 18, 2011. (DSMF

1 13.) On August 8, 2012, Collins was seen by a different outside optometrist, who measured his corrected visual acuity at 20/40 in each eye. (DSMF 1 14.) There is no objective evidence to

show that Collins has a serious vision problem. (DSMF 1 15.)

The optometrist from Vision Care of Maine wrote a bifocal prescription for both near and

distance for Collins in January 2012. (DSMF. 1 16.) The optometrist from Eyecare Medical

Group wrote Collins a prescription for bifocals in August 2012. (DSMF 1 17.) It was only when

Collins said he wanted two separate pairs of eyeglasses that this optometrist wrote him two

single focal prescriptions, one for near and one for distance vision. (DSMF 1 18.) There is no

clinical reason for two pairs of glasses with separate prescriptions and both prescriptions can

easily be accommodated in a single pair with a bi-focal lens. (DSMF 1 19.) Choosing to have

bi-focals is what the facility optometrist recommended, but Collins chose single focal glasses

instead, and was give them in September of2012. (DSMF 1 20.) In March of2013, Collins

refused glasses that were manufactured using the bi-focal prescription received form the Eyecare

Medical Group. (DSMF 1 21.)

DISCUSSION

The plaintiff failed to establish any of the elements for injunctive relief. He has failed to

demonstrate irreparable injury if he is not taken to an outside doctor for medical treatment.

Collins described in his affidavit his medical conditions such as "black spots" on his "privates",

diabetes, hernias, and vision problems but does not establish what, if anything, an outside doctor

could do differently than those who currently treat him within the Corrections Department. In

contrast, the State has submitted two expert affidavits, one from Collins' medical provider and

one from his optometrist. While Dr. Clinton agreed that Collins has medical issues, it is his

4 opinion that "none of the medical issues ... is serious in nature []" and that" ... Mr. Collins'

complaints largely originate from a somatization disorder." Dr. Clinton opined that Collins'

hernia does not require surgery or a specialist for treatment and his scrotal condition is a benign

one.

Collins, although given the opportunity by the court, failed to produce an affidavit from any

expert to counter the State's experts. He could have asked an outside doctor to conduct a record

review or to examine him. Collins did neither. When a fact is such that it cannot be proved by

testimony lying within a layperson's knowledge, then the party is required to produce expert

testimony. See Maravell v. R.J Grondin & Sons, 2007 ME 1, ~ 11, 914 A. 2d 709, 712-713.

Collins' failure to file an affidavit from an expert regarding the care that he received or what an

outside provider may offer differently from what the prison has already offered is fatal. Collins

cannot show irreparable harm or likelihood of success on the merits without any expert medical

testimony.

Collins has failed to show that he is likely to succeed on the merits of his claims. Collins has

failed to cite any authority that a prisoner has a right to the providers or treatments of his choice.

Except in the case of deliberate indifference to a serious medical need, Estelle v. Gamble, 429

U.S. 97 (197 6), the only right a prisoner has is to adequate care as determined necessary by the

facility's treating provider. 34-A M.R.S. § 3031 (2). 1 Collins has produced no evidence of

1 34-A M.R.S. §3031(2) (2012) states in part that, Any person residing in a correctional or detention facility has a right to:

2. Medical care. Adequate professional medical care and adequate professional mental health care, which do not include medical treatment or mental health treatment requested by the client that the facility's treating physician or treating psychiatrist or psychologist determines unnecessary. (Emphasis added).

5 deliberate indifference to a serious medical need. Rather, the State has produced more than

enough evidence that Collins is psychosomatic. No matter how many more second opinions that

Collins receives about his medical condition, he will never be satisfied. The history of his eye

care readily demonstrates this.

While the financial interests of the State might not otherwise trump the interest of a prisoner

whose health is truly at risk, in this case the State's financial interests clearly outweigh the

medical interests of Collins. Based on the fact that Collins has produced no evidence to meet

any of the requirements for injunctive relief, the State's motion for summary judgment is

granted.

State's Motion for Summary Judgment is GRANTED.

DATED: December 6, 2013

Larry Collins-Randy Robinson Esq State-Diane Sleek AAG