Tvelia v . DOC CV-03-537-M 02/13/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gerald Tvelia, Plaintiff
v. Civil N o . 03-537-M Opinion N o . 2004 DNH 032 Department of Corrections, et a l . , Defendants
O R D E R
On December 1 1 , 2003, pro se plaintiff, a state prisoner,
filed this suit for injunctive relief.1 He has named as
defendants several administrators of the New Hampshire Department
of Corrections, and several health professionals who provide
medical services for the State, all in their personal and
official capacities.
After holding a hearing on plaintiff’s request for
preliminary injunctive relief, the Magistrate Judge filed a
Report and Recommendation, recommending that an injunction be
issued in the following terms:
1 Plaintiff’s complaint is date-stamped December 1 5 , but under the “prisoner mail rule” it is deemed to have been filed when placed in the prison system for mailing - December 1 1 , 2003. The Department of Corrections, State of New Hampshire, is ordered to immediately and completely provide to [plaintiff] the dental care required by the Eighth Amendment without regard for cost and to supervise and control its employees to prevent them from interfering with those constitutional rights and/or from retaliating against him for petitioning this court for relief. The Department is further ordered to report monthly on the dental care given M r . Tvelia until his treatment is complete.
Report and Recommendation (document n o . 13) at 1 1 .
The Magistrate Judge determined that plaintiff, an inmate
with an undeniable history of dental problems, complained of
severe tooth pain in mid-October of 2003, and requested a dental
appointment. Notwithstanding plaintiff’s medical history, his
complaints of severe pain, and his request for medical attention
(which he made through the appropriate prison administrative
process), the prison administration did not respond for sixteen
days. When administrators did respond, they scheduled an
appointment for plaintiff to see a dentist over five weeks later,
on December 1 1 , 2003. The Magistrate Judge also found that
despite plaintiff’s interim complaints of continuing severe pain,
and additional requests for medical attention, the scheduled
appointment was not expedited and no medical care was afforded to
2 plaintiff prior to the date on which he finally saw a dentist
(December 1 9 , 2003).
On December 1 1 , 2003, the day of plaintiff’s scheduled
appointment, plaintiff waited in his cell in vain; he was not
taken for treatment. The prison’s Health Services Department
records contain an entry for December 11 (apparently incorrectly
recorded as “December 10th”) as follows: “Shu [Secure Housing
Unit] ‘too busy’ to bring over.” Plaintiff says the correctional
officers on duty were made aware of his authorized appointment,
but deliberately refused to transport him, while affirmatively
declaring their indifference to his pain.
Later that day, plaintiff filed his complaint for injunctive
relief, and, on December 1 5 , he submitted another inmate request
slip seeking medical attention, which finally resulted in an
examination on December 1 9 , 2003. That examination confirmed
that plaintiff was suffering from continuous pain, had badly
infected gums, and required substantial dental work. Ten days
later, an oral surgeon extracted the particular tooth that had
3 been causing plaintiff’s pain. Additional dental work has
apparently been scheduled.
As of January 2 7 , 2004, the date of the Report and
Recommendation, the Magistrate Judge found that plaintiff’s pain
was continuing. But, by pleading filed on January 2 9 , 2004,
plaintiff says he “is not in any severe pain right now,” because
the offending tooth was removed. Plaintiff’s “Further
Information for the Court” (document n o . 15) at para. 3 .
In light of the record currently before the court, including
the State’s objection to the Report and Recommendation, it
appears that the circumstances that would have warranted
injunctive relief have now been abated, rendering plaintiff’s
complaint moot, insofar as he seeks only an injunction to obtain
medical care for his serious medical needs - needs that included
abatement of continuous but avoidable severe pain. As the
Magistrate Judge intimates, plaintiff may well have a meritorious
claim for deliberate indifference to his serious medical needs,
actionable under 42 U.S.C. § 1983. But, the pertinent facts have
yet to be tried. And, as required by the Prison Litigation
4 Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), plaintiff must first
exhaust available administrative remedies before filing that
suit. See Booth v . Churner, 532 U.S. 731 (2001).
Parenthetically, I completely agree with the Magistrate
Judge’s view that the State is simply incorrect in suggesting
that the PLRA prevents prison inmates from seeking prospective
injunctive relief to halt the ongoing infliction of physical pain
through official deliberate indifference to serious medical
needs. Notwithstanding the exhaustion requirements of the PLRA,
federal courts still retain the inherent equitable power to
enjoin ongoing conduct plainly violative of an inmate’s
constitutional rights. In this case, plaintiff was hardly
required to endure continued physical suffering at the hands of
the State while the State’s own administrative processes played
themselves out. See, e.g., Jackson v . District of Columbia, 254
F.3d 2 6 2 , 268 (D.C. Cir. 2001) (the district court has inherent
power to protect prisoners while they exhaust prison grievance
procedures); Leonardo v . Moran, 611 F.2d 3 9 7 , 399 (1st Cir. 1979)
(prisoners need not wait to be assaulted before seeking relief
5 from prison officials’ failure to protect them from violence at
the hands of other prisoners).
In any event, plaintiff has obtained complete relief from
the ongoing constitutional violation he alleged. No doubt his
suit precipitated remedial action, but he has in fact obtained
complete relief with respect to the condition that had been
causing his ongoing physical suffering. And, importantly, he is
currently obtaining the medical care to which he is entitled.
While he still apparently requires substantial dental work, it is
clear that the State is undertaking to provide i t . It is equally
clear that a normal delivery schedule for that medical care poses
no substantial risk of imposing unconstitutional suffering upon
plaintiff.
Consequently, it can be said with some assurance, on this
record, that there is no reasonable expectation that the prior
alleged violation of plaintiff’s Eighth Amendment rights will be
repeated and that intervening events, since suit was filed, have
completely eradicated the effects of that alleged violation
(i.e., deliberate indifference to continuous and severe physical
6 pain). And, it is now certain that defendants are fully informed
as to plaintiff’s medical condition, as well as their obligations
to him under the Constitution.
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Tvelia v . DOC CV-03-537-M 02/13/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gerald Tvelia, Plaintiff
v. Civil N o . 03-537-M Opinion N o . 2004 DNH 032 Department of Corrections, et a l . , Defendants
O R D E R
On December 1 1 , 2003, pro se plaintiff, a state prisoner,
filed this suit for injunctive relief.1 He has named as
defendants several administrators of the New Hampshire Department
of Corrections, and several health professionals who provide
medical services for the State, all in their personal and
official capacities.
After holding a hearing on plaintiff’s request for
preliminary injunctive relief, the Magistrate Judge filed a
Report and Recommendation, recommending that an injunction be
issued in the following terms:
1 Plaintiff’s complaint is date-stamped December 1 5 , but under the “prisoner mail rule” it is deemed to have been filed when placed in the prison system for mailing - December 1 1 , 2003. The Department of Corrections, State of New Hampshire, is ordered to immediately and completely provide to [plaintiff] the dental care required by the Eighth Amendment without regard for cost and to supervise and control its employees to prevent them from interfering with those constitutional rights and/or from retaliating against him for petitioning this court for relief. The Department is further ordered to report monthly on the dental care given M r . Tvelia until his treatment is complete.
Report and Recommendation (document n o . 13) at 1 1 .
The Magistrate Judge determined that plaintiff, an inmate
with an undeniable history of dental problems, complained of
severe tooth pain in mid-October of 2003, and requested a dental
appointment. Notwithstanding plaintiff’s medical history, his
complaints of severe pain, and his request for medical attention
(which he made through the appropriate prison administrative
process), the prison administration did not respond for sixteen
days. When administrators did respond, they scheduled an
appointment for plaintiff to see a dentist over five weeks later,
on December 1 1 , 2003. The Magistrate Judge also found that
despite plaintiff’s interim complaints of continuing severe pain,
and additional requests for medical attention, the scheduled
appointment was not expedited and no medical care was afforded to
2 plaintiff prior to the date on which he finally saw a dentist
(December 1 9 , 2003).
On December 1 1 , 2003, the day of plaintiff’s scheduled
appointment, plaintiff waited in his cell in vain; he was not
taken for treatment. The prison’s Health Services Department
records contain an entry for December 11 (apparently incorrectly
recorded as “December 10th”) as follows: “Shu [Secure Housing
Unit] ‘too busy’ to bring over.” Plaintiff says the correctional
officers on duty were made aware of his authorized appointment,
but deliberately refused to transport him, while affirmatively
declaring their indifference to his pain.
Later that day, plaintiff filed his complaint for injunctive
relief, and, on December 1 5 , he submitted another inmate request
slip seeking medical attention, which finally resulted in an
examination on December 1 9 , 2003. That examination confirmed
that plaintiff was suffering from continuous pain, had badly
infected gums, and required substantial dental work. Ten days
later, an oral surgeon extracted the particular tooth that had
3 been causing plaintiff’s pain. Additional dental work has
apparently been scheduled.
As of January 2 7 , 2004, the date of the Report and
Recommendation, the Magistrate Judge found that plaintiff’s pain
was continuing. But, by pleading filed on January 2 9 , 2004,
plaintiff says he “is not in any severe pain right now,” because
the offending tooth was removed. Plaintiff’s “Further
Information for the Court” (document n o . 15) at para. 3 .
In light of the record currently before the court, including
the State’s objection to the Report and Recommendation, it
appears that the circumstances that would have warranted
injunctive relief have now been abated, rendering plaintiff’s
complaint moot, insofar as he seeks only an injunction to obtain
medical care for his serious medical needs - needs that included
abatement of continuous but avoidable severe pain. As the
Magistrate Judge intimates, plaintiff may well have a meritorious
claim for deliberate indifference to his serious medical needs,
actionable under 42 U.S.C. § 1983. But, the pertinent facts have
yet to be tried. And, as required by the Prison Litigation
4 Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), plaintiff must first
exhaust available administrative remedies before filing that
suit. See Booth v . Churner, 532 U.S. 731 (2001).
Parenthetically, I completely agree with the Magistrate
Judge’s view that the State is simply incorrect in suggesting
that the PLRA prevents prison inmates from seeking prospective
injunctive relief to halt the ongoing infliction of physical pain
through official deliberate indifference to serious medical
needs. Notwithstanding the exhaustion requirements of the PLRA,
federal courts still retain the inherent equitable power to
enjoin ongoing conduct plainly violative of an inmate’s
constitutional rights. In this case, plaintiff was hardly
required to endure continued physical suffering at the hands of
the State while the State’s own administrative processes played
themselves out. See, e.g., Jackson v . District of Columbia, 254
F.3d 2 6 2 , 268 (D.C. Cir. 2001) (the district court has inherent
power to protect prisoners while they exhaust prison grievance
procedures); Leonardo v . Moran, 611 F.2d 3 9 7 , 399 (1st Cir. 1979)
(prisoners need not wait to be assaulted before seeking relief
5 from prison officials’ failure to protect them from violence at
the hands of other prisoners).
In any event, plaintiff has obtained complete relief from
the ongoing constitutional violation he alleged. No doubt his
suit precipitated remedial action, but he has in fact obtained
complete relief with respect to the condition that had been
causing his ongoing physical suffering. And, importantly, he is
currently obtaining the medical care to which he is entitled.
While he still apparently requires substantial dental work, it is
clear that the State is undertaking to provide i t . It is equally
clear that a normal delivery schedule for that medical care poses
no substantial risk of imposing unconstitutional suffering upon
plaintiff.
Consequently, it can be said with some assurance, on this
record, that there is no reasonable expectation that the prior
alleged violation of plaintiff’s Eighth Amendment rights will be
repeated and that intervening events, since suit was filed, have
completely eradicated the effects of that alleged violation
(i.e., deliberate indifference to continuous and severe physical
6 pain). And, it is now certain that defendants are fully informed
as to plaintiff’s medical condition, as well as their obligations
to him under the Constitution. Once informed of the law’s
requirements, state officials can be presumed to act in a lawful
manner.
In light of the foregoing, the case has become moot. See
County of Los Angeles v . Davis, 440 U.S. 625, 631 (1979). See
also Knight v . Mills, 836 F.2d 659 (1st Cir. 1987) (psychiatric
patient’s suit for declaratory judgment establishing his
entitlement to treatment was mooted by the intervening provision
of the treatment he sought, where it was not anticipated that the
treatment would be terminated).
Conclusion
Insofar as it seeks specific equitable relief no longer
required to abate the alleged ongoing constitutional violation,
plaintiff’s complaint is now moot. Accordingly, the Magistrate
Judge’s Report is accepted, but the Recommendation is no longer
applicable.
7 Plaintiff’s “Motion for Immediate Injunctive Relief”
(document n o . 5 ) is denied as moot and his complaint (document
n o . 3 ) is dismissed, but without prejudice to plaintiff’s
refiling i f , in the course of receiving treatment for the
condition complained o f , his serious medical needs are met with
deliberate indifference resulting in irreparable harm (e.g.,
severe unaddressed physical pain). In such a case, plaintiff may
file a new complaint and the court will waive all filing fees.
SO ORDERED.
Steven J. McAuliffe United States District Judge February 1 3 , 2004 c c : Nancy J. Smith, Esq. Gerald Tvelia