OPINION AND ORDER

LORETTA A. PRESKA, District Judge.

TABLE OF CONTENTS

Before the Court is Plaintiff Anthony Medina's ("Plaintiff," "Medina" or "Mr. Medina") Motion for Contempt (the "Civil Contempt Motion"), dated June 21, 2018 [dkt. no. 284], to hold the New York State Department of Correction and Community Supervision ("DOCCS") in contempt for violating the Court's Memorandum and Order, dated Feb. 3, 2017 [dkt. no. 159] (the "2017 Order").

Specifically, Plaintiff requests the following relief:

(Civil Contempt Motion at 2.) Defendants have opposed the Civil Contempt Motion. For the reasons set forth below, the Civil Contempt Motion [dkt. no. 284], is granted in part and denied in part.

I. BACKGROUND

A. Pre-Preliminary Injunction

As set out in detail in the 2017 Order, Mr. Medina is legally blind, which substantially interferes with his quality of life, causing him to rely heavily on various reasonable accommodating devices, equipment, aids, and auxiliary services to see, read, write, and walk. Mr. Medina cannot read unless he uses a device that is capable of magnifying print to size 32 font. (2017 Order at 2.)

Mr. Medina suffers from keratoconus, a disease caused by a decrease in protective antioxidants in the cornea that causes the cornea to change from its normal round shape and to bulge outward like a cone. See What is Keratoconus?, WEBMD, https://www.webmd.com/eye-health/eye-health-keratoconus (last visited Feb. 7, 2019). That disability causes him sustained acute eye pain, chronic headaches, a form of double vision, light flashes, and occasional nausea and vertigo. (2017 Order at 2-3.) Plaintiff's pain management expert, Dr. Adam Carinci, testified that, based on his review of Mr. Medina's medical records, his examination of Mr. Medina, and his observations and experiences, Mr. Medina "had four main complaints. Number one was essentially neuropathic eye pain, or complaints of headache and eye pain. The second was lumbar axial back pain. The third was right shoulder pain. And the fourth was right arm/elbow pain." (Transcript of September 18, 2018 Hearing on the Civil Contempt Motion ("Sept. 18, 2018 Tr."), dated Oct. 3, 2018 [dkt. no. 392], at 266:5-12.) Dr. Carinci added that Mr. Medina's primary complaint was his eye pain. (Id. at 274:7-9; see also Transcript of September 17, 2018 Hearing on the Civil Contempt Motion ("Sept. 17, 2018 Tr."), dated Jan. 24, 2019 [dkt. no. 402], at 51:5-53:5 (Mr. Medina describes his pain as of September 2018).)

Beginning in 2006, Mr. Medina was prescribed Tramadol1 by DOCCS medical personnel to relieve his severe headaches and eye pain caused by light exposure and his visual disability. (2017 Order at 3.)2 Mr. Medina testified credibly that he had not "had any problems with [Tramadol] since 2007," and that "it's effective with the least amount of side effects." (Sept. 17, 2018 Tr. at 94:7-9.) DOCCS prescribed Tramadol and Gabapentin for Mr. Medina repeatedly and consistently between 2006 and 2014. (Exhibit 205 to Agnew Reply Decl. ("Agnew Reply Decl. Ex. 205") [dkt no. 356-44].) In fact, despite having supposedly gone over Mr. Medina's medical records "in depth," Dr. Dinello did not even realize he was the first provider to prescribe Tramadol to Mr. Medina in 2006. (Sept. 17, 2018 Tr. at 165:8-167:8; P1. Ex. 233.)

As set out in the 2017 Order, over time, various DOCCS medical personnel discontinued the Tramadol — addressed to Mr. Medina's eye pain — and the Gabapentin — addressed to his neuropathic pain, primarily in his arms. Other DOCCS personnel refused him the use of a closed circuit television ("CCTV") reader and refused to dim the lights in his space, the latter causing him eye pain. Thus, Mr. Medina sought a preliminary injunction to require Defendants:

(2017 Order at 1-2.)

1. Deliberate Indifference

In deciding Mr. Medina's request for a preliminary injunction (the "Preliminary Injunction Motion"), dated Dec. 22, 2015 [dkt. no. 43], the Court reviewed the law regarding deliberate indifference. Under the Eighth and Fourteenth Amendments, states have a limited obligation to provide medical care to sentenced prisoners. See Estelle v. Gamble, 429 U.S. 97, 103-06 (1976) ("[D]eliberate indifference to [the] serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion)). The failure to provide medical care to a prisoner will give rise to a constitutional violation if two elements are established:

DeMeo v. Koenigsmann, No. 11 Civ. 7099(HBP), 2015 WL 1283660, at *8 (S.D.N.Y. Mar. 20, 2015) (alteration in original) (emphasis omitted) (quotation marks omitted) (quoting Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006)).

a. Objective Component

To prove the objective component, a plaintiff must allege a "deprivation of adequate medical care [that is] `sufficiently serious.'" Salahuddin, 467 F.3d at 279 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The inadequately treated "medical need is sufficiently serious if it is a `condition of urgency, one that may produce death, degeneration, or extreme pain.'" DeMeo, 2015 WL 1283660, at *8 (quoting Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)).

As set forth by the Court of Appeals, the analysis of what constitutes a "sufficiently serious condition" should include consideration of "(1) whether a reasonable doctor or patient would perceive the medical need in question as `important or worthy of comment or treatment,' (2) whether the medical condition significantly affects daily activities, and (3) `the existence of chronic and substantial pain.'" Sereika v. Patel, 411 F.Supp.2d 397, 406 (S.D.N.Y. 2006) (quoting Chance v. Armstrong, 143 F.3d 698, 702-03 (2d Cir. 1998)).

As to the objective component in the instant case, the Court has found that "[t]here is no question that Mr. Medina's pain is `sufficiently serious' under the Court of Appeals analysis." (2017 Order at 23.) The Court noted Medina's extended treatment by DOCCS medical personnel for pain over the years and their referral of him out to a pain specialist. (See id. at 24.)

b. Subjective Component

As to the subjective component, the Court has found that DOCCS medical personnel failed to treat Mr. Medina's pain effectively despite repeatedly being advised of it by Mr. Medina and his counsel. (Id. at 25-26.) Although Mr. Medina was referred out to a pain specialist, he did not see one until a year later. (Id. at 26.)

The Court has already recognized that

(2017 Order at 25 (alterations in original).)

The Court also noted that "Mr. Medina's claim is not merely a disagreement with the prison doctors' professional judgement." (Id. at 26.) Indeed, one doctor revoked his Tramadol prescription without examining or speaking to him, (id. at 27), and another decreased his Gabapentin prescription without the benefit of his medical records and without examining him, (id. at 8; see also id. at 27-28). The latter doctor, Dr. Michelle Belgard, discontinued Mr. Medina's Gabapentin prescription pursuant to her own, unwritten rule, admitting that "[ilt doesn't matter if [inmates] are suffering from pain . . . whether they have pain or not, it's irrelevant . . . There are other medications that can be used. So it doesn't matter if you're in pain. It's [Gabapentin] discontinued." (Id. at 28 (alterations except last in original) (quoting Transcript of June 15, 2016 Hearing on the Preliminary Injunction Motion ("June 15, 2016 Tr."), dated June 28, 2016 [dkt. no. 128], at 48-49).)

A hearing was held, and the Court granted the Preliminary Injunction Motion, ordering Defendants:

(Id. at 54.)

The Memorandum and Order granting the Preliminary Injunction Motion was issued on February 3, 2017. (Id. at 55.) There was no appeal and no request for clarification.

B. Post-2017 Order Proceedings

Following entry of the 2017 Order on February 3, it only took two months for Mr. Medina to return to Court seeking a finding of contempt with regard to the window tinting and use of a CCTV device. (Plaintiff's Intended Motion for a Finding of Civil and Criminal Contempt, dated Apr. 2, 2017 [dkt. no. 164]; Order, dated Apr. 6, 2017 [dkt. no. 168].) By June 8, Mr. Medina added to the contempt motion his assertion that, upon his arrival at Five Points Correctional Facility on June 1, he was denied his pain medication due to "Dr. Belgard's policy." (Motion to Expedite Civil Contempt, dated June 8, 2017 [dkt. no. 181], at 1-2.) There ensued another 209 docket entries regarding Mr. Medina's treatment plan, renewed motions for contempt, disclosure of Mr. Medina's medical records, and the like, [dkt. nos. 182-391], until the contempt hearing was finally held on September 17 and 18, 2018.

1. Hearing

The hearing spanned two days, and six witnesses testified. The Court's general observations of the witnesses are as follows:

a. Anthony Medina

Overall, the Court found Mr. Medina's testimony to be credible. He had an extraordinary recollection of detail and did not seem to be exaggerating. He characterized his pain on some occasions as excruciating and on other occasions as merely "irksome." (Sept. 17, 2018 Tr. at 27:1.) He readily admitted to saying he had chest pains, when he did not, in an effort to get a nurse to see him after waiting, in pain, for over four hours for Dr. Dinello's approval of his request for Tramadol. He acknowledged breaking a window in the transport van after his appearance before Judge Geraci because of his excruciating headache. The Court did not find his testimony about drug diversion to be credible.3

Mr. Medina's testimony was corroborated by medical records, other prison records, and his and his counsel's correspondence with prison officials. Accordingly, with the exception noted, the Court credits Mr. Medina's testimony.

Mr. Medina's attitude and demeanor also inspired confidence. He answered his lawyer's questions and opposing counsel's questions in the same measured tone. He struck the Court as a witness doing his best to report his best recollection of the facts.

b. Dr. Janice Wolf

Dr. Wolf, who treated Mr. Medina at Sullivan Correctional Facility, was somewhat defensive and evasive in her testimony. For example, Mr. Medina inquired about non-medical treatment, which Dr. Wolf initially said meant physical therapy for the neuropathic pain in his arm. (Sept. 17, 2018 Tr. at 142:10-13.) An outside physical therapist refused and recommended occupational therapy, citing Mr. Medina's "tingling, cramping, and numbness." (Sept. 17, 2018 Tr. at 143:5-12.) Thereafter, the nurse practitioner noted the case was discussed with Dr. Wolf "without referral to occupational therapy needed" and checked "no action is required at this time." (Sept. 17, 2018 Tr. at 143:15-20.) Dr. Wolf subsequently acknowledged that the entry meant she was not going to send Mr. Medina for occupational therapy but said it was "not what [she] indicated." (Sept. 17, 2018 Tr. at 143:21-23.) As will be detailed below, Dr. Wolf eventually testified that she did not send Mr. Medina to occupational therapy because he was a flight risk. As also noted below, that testimony was incredible on its face.

c. Dr. David Dinello

Dr. Dinello was a Regional Medical Director ("RMD") during the relevant time. While Dr. Dinello gave long soliloquies about his interest in providing Mr. Medina with effective pain management, those good intentions are belied by (1) periods when Mr. Medina had no pain medication at all for his headaches and his neuropathy, (2) Dr. Dinello's failure to accept and act upon the adverse reactions Mr. Medina reported (and nurses confirmed) to various alternative medications, and (3) Dr. Dinello's emails between and among other DOCCS physicians.

d. Dr. Carl Koenigsmann

Dr. Koenigsmann was the Chief Medical Officer for DOCCS during the relevant time period. Although Dr. Koenigsmann had supervisory input into Mr. Medina's treatment, his testimony did not add much because he was, at best, uninformed. When questioned about his note to Drs. Mikhail Gusman and Wolf that he "ha[d] no issue authorizing [Tramadol] until [the pain] workup [was] done," (Sept. 18, 2018 Tr. at 195:1-4 (quoting Pl. Ex. 99)), he did not know why he denied the request for Tramadol that same day, (Sept. 18, 2018 Tr. at 195:5-7). Similarly, when questioned about why, after Gabapentin had been refused to Mr. Medina, Dr. Koenigsmann changed his mind on December 4, 2017, to permit Gabapentin, he had no idea. (Sept. 18, 2018 Tr. at 196:4-8.) Dr. Koenigsmann also acknowledged that he was not aware of what medications Mr. Medina had tried between February of 2017 and February of 2018 and that he did not inquire what other treatments or modalities had been tried for Mr. Medina. (Sept. 18, 2018 Tr. at 197:18-24.)

Finally, when asked why Tramadol or other opioids were not indicated for Mr. Medina, he gave a lengthy, vague answer about issues with controlled substances, (Sept. 18, 2018 Tr. at 197:25-199:1), acknowledged that he could not recall why he believed there were issues with opioids with Mr. Medina, (Sept. 18, 2018 Tr. at 199:4-15), and referred to "past experience" with Mr. Medina but without recalling what the past experiences were, (Sept. 18, 2018 Tr. at 199:16-201:13).

e. Dr. Adam Carinci

In stark contrast, the Court found Plaintiff's expert, Dr. Carinci, to be both credible and persuasive. Dr. Carinci was thoroughly familiar with Mr. Medina's lengthy medical history. He spoke credibly about why numerous prior medications had either failed to provide Mr. Medina with pain relief, or, while providing some relief, caused adverse side effects such as extreme drowsiness, blood in his stool, and the like. Dr. Carinci noted that Mr. Medina had "tried and failed at least 12 different medications, really not even including nonmedication trials, to control his pain." (Sept. 18, 2018 Tr. at 267:10-13.)

As detailed in his report, Dr. Carinci testified persuasively that "the combination of Gabapentin and Tramadol, I think, is medically appropriate and reasonable for him. Furthermore, I think I don't see any contraindications to treatment with that, and, importantly, the treatment with those two medications really does comport with the MWAP policy, as well as CDC guidelines for opioids, and the New York State guidelines for opioids." (Sept. 18, 2018 Tr. at 268:19-269:3.)

Dr. Carinci's testimony dealt with the details of Mr. Medina's specific case, not just with standard factors such as avoiding opioids. Also, Dr. Carinci distinguished between Gabapentin, which is prescribed for Mr. Medina's neuropathy and should be taken continuously for maximum effect, and Tramadol, which is prescribed for Mr. Medina's eye pain and headaches and should be taken on an as-needed basis. (Sept. 18, 2018 Tr. at 269:10-21.) Dr. Carinci also pointed out that the low dosage of Tramadol prescribed to Mr. Medina was a "small percentage" of the CDC-recommended maximums. (Sept. 17, 2018 Tr. at 271:21-272:3.) Accordingly, the Court found Dr. Carinci's detailed, careful testimony to be very persuasive.

Dr. Carinci's attitude and demeanor also impressed the Court. He was calm and measured in answering both lawyers' questions.

f. Dr. Charles Argoff

As pointed out on cross-examination, Defendants' expert, Dr. Charles Argoff testified in 2017 before the FDA Joint Meeting of the Drug Safety and Risk Management and Analgesic Drug Products Advisory Committee that "[t]he reality is that for millions of people with chronic pain, opioid therapy is effective and safe in helping them to live more comfortable and productive lives," and `Thirst, we must maintain the availability of multiple specific opioid analgesics to meet the specific and personalized needs of the people we treat, who without such availability would suffer unnecessarily." (Sept. 18, 2018 Tr. at 318:23-219:11 (quoting Pl. Ex. 234, at 110:3-6, 110:15-19).) Nevertheless, he failed to address Mr. Medina's specific and personalized needs. When asked why Mr. Medina was not a candidate for opioids for pain relief, Dr. Argoff relied on generic counter-indications: Mr. Medina's age, his prior tobacco use, his criminal record, and his prior drug-seeking behavior (a single disciplinary ticket that had been expunged). (Sept. 18, 2018 Tr. at 319:19-321:11.) He also mentioned the possibility of drug interactions without acknowledging that Mr. Medina had been on Tramadol for substantial periods of time while in custody with no adverse interactions reported and failed to acknowledge that Mr. Medina failed non-opioid therapy. (Sept. 18, 2018 Tr. at 306-322.)

In addition, after a discussion of whether or not Mr. Medina's records disclosed dirty urinalyses, counsel asked a simple question of whether Dr. Argoff saw any other instances of drug abuse in Mr. Medina's records. Dr. Argoff gave a lengthy, hyper-technical, and evasive answer about the definition of abuse as including refusal to take medication. Eventually, however, he admitted that he was not aware of any drug abuse or misuse reflected in Mr. Medina's records other than his refusal to take medication and the dirty urinalysis.4 For these reasons, the Court did not find Dr. Argoff's testimony credible or persuasive.

Dr. Argoff's attitude and demeanor confirmed the Court's finding that his testimony was not credible. The doctor was resistant to answering questions and addressed Plaintiff's counsel in a nasty, condescending, and sexist fashion.5

2. Post-2017 Order Pain Treatment

Immediately after the 2017 Order was issued, Mr. Medina's pain medication issues improved. (Declaration of Anthony Medina in Support of Motion for Contempt ("Medina Decl."), dated June 25, 2018 [dkt. no. 293], at ¶ 3; Sept. 17, 2018 Tr. at 53:19-55:5.) On February 6, 2017, Dr. Jacqueline Levitt, a physician at Wende Correctional Facility, prescribed Tramadol, at a low dose, and Lyrica, an alternative to Gabapentin. (Exhibit 2 to Agnew Decl. [dkt. no. 295-2]; Exhibit 3 to Agnew Decl. [dkt. no. 295-3]; Exhibit 4 to Agnew Decl. ("Agnew Decl. Ex. 4") [dkt. no. 295-4].) She noted that Mr. Medina has chronic photophobia, is legally blind, and has cervical stenosis. She also noted that she would request a non-formulary trial of Lyrica because "[Gabapentin] 4 diarrhea." (Agnew Decl. at ¶ 5; Agnew Decl. Ex. 4.)6

Mr. Medina found that the Lyrica "was not as effective as the [Gabapentin] but it did help with [his] neuropathy." (Medina Decl. at ¶ 3.)7

Dr. Levitt attempted to increase the dosage of Lyrica when the prescription was due for renewal, (Exhibit 11 to Agnew Decl. [dkt. no. 295-11]; Exhibit 14 to Agnew Decl. ("Agnew Decl. Ex. 14") [dkt. no. 295-14]; Medina Decl. at ¶ 8; Sept. 17, 2018 Tr. at 55:9-18), but neither the dosage increase nor further treatment with Lyrica was approved by the RMD, Dr. Dinello, (Agnew Decl. at ¶¶ 18-19; Exhibit 16 to Agnew Decl. [dkt. no. 295-16]; Exhibit 17 to Agnew Decl. ("Agnew Decl. Ex. 17") [dkt. no. 295-17]; Sept. 17, 2018 Tr. at 55:16-18). Both Mr. Medina and his counsel raised concerns with DOCCS personnel about his pain treatment during this period. (E.g., Exhibit 3 to Medina Decl. [dkt. no. 293-3]; Agnew Decl. Ex. 14; Exhibit 18 to Agnew Decl. ("Agnew Decl. Ex. 18") [dkt. no. 295-18].)8 Indeed, Plaintiff's counsel wrote to defense counsel expressing her concern that Dr. Levitt was adjusting Mr. Medina's pain medication not out of any medical necessity, but due to instructions "from Albany." (Agnew Decl. Ex. 18, at 1.)

On March 15, 2017, Dr. Dinello emailed Dr. Levitt, "I would definitely not recommend Lyrica especially in this situation. Being a Controlled/Scheduled Substance and therefore Addictive in nature, it has an unacceptable risk/benefit ratio. . . . [S]afer alternatives like Cymbalta and even Lamictal should be attempted." (Agnew Decl. Ex. 17.) As noted in the Meds Spreadsheet, Lyrica was discontinued on March 30, 2017.9 (Meds Spreadsheet at 7-9.) By halting the Lyrica — which had been effective — Dr. Dinello willfully interfered with Dr. Levitt's treatment of Mr. Medina based only upon the nature of the particular medications, not Mr. Medina's medical needs.10

Pursuant to Dr. Levitt's referral, Dr. Evgeny Dyskin, an orthopedist, performed surgery on Mr. Medina's left arm on March 24, 2017. (Dyskin Decl. at ¶ 11.) Post-surgery, Dr. Dyskin recommended that Mr. Medina be treated with Gabapentin, (Dyskin Decl. at ¶ 12), but it was not prescribed at Wende when he returned, (see Agnew Decl. Ex. 23 (indicating Mr. Medina is allergic to Gabapentin)). In lieu of the Gabapentin or Lyrica, Dr. Levitt prescribed Cymbalta, but that medication made Mr. Medina incredibly sleepy. (Exhibit 24 to Agnew Decl. ("Agnew Decl. Ex. 24") [dkt. no. 295-24]; Medina Decl. at ¶ 9.) By failing to follow the surgeon's recommendation for Mr. Medina's post-surgical medication, Dr. Dinello willfully caused Dr. Levitt to fail to treat Mr. Medina's pain.

As noted above, on March 30, 2017, Medina's Lyrica prescription was discontinued. (Meds Spreadsheet at 7.) Wende's pharmacy supervisor wrote to Dr. Levitt: "This has now expired per Dr. David Dinello. . . . We have no approval to continue this NF medication, so you will have to use your clinical judgment on how to proceed with his treatment. Lyrica 50mg will have to be discontinued by you at this time however." (Exhibit 20 to Agnew Decl. [dkt. no. 295-20].) Dr. Levitt noted in an Ambulatory Health Record Progress Note ("AHR") that "Lyrica not be approved by RMD for further [treatment] of neuropathy. Will begin Cymbalta. (Exhibit 21 to Agnew Decl. [dkt. no. 295-21].) This further evidences Dr. Dinello's willful interference with Mr. Medina's pain treatment.

The April 13, 2017 entry in Mr. Medina's medical records states that Mr. Medina requested an increase in Tramadol dosage due to his photophobia. It also noted that the surgery helped his left hand, that "[the] pain [is] better — still numb but no further cramping." (Agnew Decl. Ex. 24.) Mr. Medina requested the same surgery for his right arm. The corresponding AHR states, "[Tramadol] does not affect numbness but Lyrica was helpful, Cymbalta not effective . . . claims Cymbalta is antidepressant, makes him tired." (Id.) Dr. Levitt increased the Tramadol prescription to 75mg PO TID11 for 30 days, though she added that she doubted the need for neuropathic medication. (Id.) Despite stating that she felt there was no need for neuropathic medication, Dr. Levitt referred Mr. Medina to Dr. Dyskin for surgery on his right arm. (Exhibit 25 to Agnew Decl. [dkt. no. 295-25].)

Mr. Medina states that on April 18, 2017, "[he] was presented with a disciplinary ticket for a dirty urinalysis. A urine sample was never taken from [him]. The charge was overturned and expunged." (Medina Decl. at ¶ 13; Exhibit 5 to Medina Decl. [dkt. no. 293-5], at 4; Exhibit 26 to Agnew Decl. [dkt. no. 295-26]; Sept. 17, 2018 Tr. at 100:11-14 (charged with dirty urine in last two years but overturned); see also Sept. 17, 2018 Tr. at 124:19-125:1 (Mr. Medina has never had a positive urine test for drugs in over 22 years of imprisonment).)

On April 25, 2017, Mr. Medina wrote Dr. Levitt, stating:

(Exhibit 6 to Medina Decl. [dkt. no. 293-6] (emphasis omitted).)

This is hardly drug-seeking behavior.

The next day, Dr. Levitt amended Mr. Medina's Tramadol prescription to permit him to take the pain medication "as needed." (Exhibit 29 to Agnew Decl. [dkt. no. 295-29].) Mr. Medina replied, "but I was still getting no medication for my neuropathic pain." (Medina Decl. at ¶ 15; see Exhibit 31 to Agnew Decl. [dkt. no. 295-31].)

On June 1, 2017, DOCCS implemented a new Health Care Services Policy regarding Medications with Abuse Potential ("MWAP").12 The policy states that all inmates will have access to medically appropriate medications, however, if a medication is deemed to have abuse potential, the prescription of such medication will require the "review and approval of a Regional Medical Director." (Agnew Decl. at ¶ 39; Exhibit 37 to Agnew Decl. ("Agnew Decl. Ex. 37") [dkt. no. 295-37]; Declaration of David Dinello, M.D. in Opposition to Plaintiff's Motion for Contempt ("Dinello Decl."), dated Aug. 3, 2018 [dkt. no. 325], at ¶ 19.) Dr. David Dinello was RMD at Five Points Correctional Facility at that time. (Agnew Decl. at ¶ 40; Dinello Decl. at ¶ 3.)

At or about the time the MWAP policy was adopted, Dr. Koenigsmann, Chief Medical Officer for DOCCS, (Sept. 18, 2018 Tr. at 183:25-184:3), wrote to Dr. Dinello about Mr. Medina:

(Sept. 18, 2018 Tr. at 187:22-188:4 (quoting Pl. Ex. 212)). At the hearing, Dr. Koenigsmann testified that he meant that "changing meds based on policy is doomed to failure legally." (Sept. 18, 2018 Tr. at 185:5-190:4.) He also testified that "if a patient was on an effective medication, it's possible that after June 1st of 2017, a treating physician would submit an MWAP request, and that that medication would be discontinued despite the fact that it was effective up until that date." (Sept. 18, 2018 Tr. at 191:11-16.) Unfortunately for Mr. Medina, DOCCS medical personnel did in fact discontinue Mr. Medina's effective medication based on policy.

On June 1, 2017, Plaintiff's counsel learned that Mr. Medina had been transferred to Five Points and she, once again, sent an email to Defendants' counsel voicing concern about Mr. Medina's medication. (Exhibit 33 to Agnew Decl. [dkt. no. 295-33]; see also Exhibit 39 to Agnew Decl. ("Agnew Decl. Ex. 39") [dkt. no. 295-39]; Medina Decl. at ¶ 17.) Before Mr. Medina even arrived at Five Points, Dr. Dinello, the RMD, had decided that Mr. Medina would be stripped of Tramadol and Gabapentin. Deputy Superintendent Amy Lamanna inquired of Dr. Dinello about the court order regarding Mr. Medina, and he replied, "The judge cannot order a specific medication. I will see Mr. Medina. [Mr. Medina] will not be receiving a controlled substance medication. . . ." (Sept. 17, 2018 Tr. at 167:9-22 (quoting Pl. Ex. 40).) Dr. Dinello had not examined Mr. Medina since 2006, and he did not have access to his AHR. (Sept. 17, 2018 Tr. at 167:23-168:13; see Exhibit 200 to Agnew Reply Decl. ("Agnew Reply Decl. Ex. 200"), dated Aug. 14, 2018 [dkt. no. 356-39], at 116:20-22 ("[June is] when I first met him, if I'm not mistaken.").) He had not reviewed Mr. Medina's medical records, and he had not read this Court's order. (See Agnew Reply Decl. Ex. 200, at 113:8-114:13 ("When [Medina] first came into Five Points, there was this huge court order, which I have never seen. . . .").) Again, Dr. Dinello willfully interfered with effective treatment of Mr. Medina's pain. When asked why he decided to discontinue Mr. Medina's medication even before he arrived at the facility or had been examined, Dr. Dinello testified:

(Sept. 17, 2018 Tr. at 168:21-169:3.)13

Dr. Dinello admitted that he was well aware of Mr. Medina's pain. (Sept. 17, 2018 Tr. at 169:4-13.) On June 2, 2017, Dr. Dinello went to see Mr. Medina. (Sept. 17, 2018 Tr. at 171:12-15; Agnew Decl. Ex. 39; Dinello Decl. at ¶ 20.) DOCCS had just instituted a MWAP policy which did not allow for the prescription of Tramadol for more than seven days. (Agnew Decl. at 39; Agnew Decl. Ex. 37.) Dr. Dinello ordered that Mr. Medina be weaned from Tramadol but said he would "consider" Gabapentin. (Agnew Decl. at ¶ 43; Agnew Decl. Ex. 39; Exhibit 42 to Agnew Decl. ("Agnew Decl. Ex. 42") [dkt. no. 295-42]; Medina Decl. at ¶ 17.) Tramadol was discontinued on June 25. (Meds Spreadsheet at 10.) Dr. Dinello willfully interfered with Mr. Medina's effective pain treatment, "changing meds based on policy," a course Dr. Koenigsmann correctly stated was "doomed to failure legally." (Sept. 18, 2018 Tr. at 187:22-190:4.)

"Considering" effective treatment but not actually prescribing it is a theme for Dr. Dinello.(See, e.g., Agnew Decl. Ex. 39; Agnew Decl. Ex. 42; Exhibit 50 to Agnew Decl. ("Agnew Decl. Ex. 50") [dkt. no. 295-50]; Exhibit 143 to Agnew Decl. ("Agnew Decl. Ex. 143") [dkt. no. 295-144]; Exhibit 145 to Agnew Decl. ("Agnew Decl. Ex. 145") [dkt. no. 295-146]; Agnew Reply Decl. Ex. 200, at 112:22-113:7.) Dr. Dinello wrote, "[patient] is willing to try alternative treatment modalities, even re-instating Gabapentin which he stated helped but at high doses caused adverse reaction (diarrhea)." (Agnew Decl. at ¶ 49; Exhibit 45 to Agnew Decl. ("Agnew Decl. Ex. 45") [dkt. no. 295-45], at 1.)

When Mr. Medina continued to complain of pain, Dr. Dinello prescribed Lamictal. (Agnew Decl. at ¶ 49; Agnew Decl. Ex. 45, at 1; Medina Decl. at ¶ 17; Sept. 17, 2018 Tr. at 171:19-172:9; Meds Spreadsheet at 10.)14 Mr. Medina had an adverse reaction to the Lamictal on the morning of June 14, 2017, which required medical intervention. (Exhibit 46 to Agnew Decl. [dkt. no. 295-46]; Agnew Reply Decl. Ex. 200, at 115:4-5; Medina Decl. at ¶ 19; Sept. 17, 2018 Tr. at 58:7-22 (Mr. Medina describing the adverse reaction).) When Nurse Gardner reported on June 14 that Mr. Medina had had an adverse reaction to the Lamictal — his vitals were 128/88, he was profusely sweating, and was experiencing heightened anxiety — Dr. Dinello wrote back, "You do realize that his response is overly dramatic and DOES NOT routinely happen after such a small dose of Lamictal. Well played by Mr. Medina . . . well played indeed." (Exhibit 47 to Agnew Decl. ("Agnew Decl. Ex. 47") [dkt. no. 295-47], at 1; Sept. 17, 2018 Tr. at 172:13-21.) When asked what he meant by "well played," Dr. Dinello testified that "[his] initial impression of Mr. Medina was that a lot of his behavior was drug-seeking in nature, and [his] concern was to avoid medications that could make that behavior worse." (Sept. 17, 2018 Tr. at 172:23-25.)

Nurse Gardner responded: "Not so sure, it's hard to fake the sweat that was pouring off of him — he was in class when he reacted." (Agnew Decl. Ex. 47; Sept. 17, 2018 Tr. at 173:3-6.) Dr. Dinello's "well played" remark typifies his adversarial attitude toward Mr. Medina and demonstrates the willfulness of his failure to treat Mr. Medina's pain effectively.

Dr. Dinello discontinued Lamictal without putting an adverse reaction alert in Mr. Medina's medical chart. (Medina Decl. at ¶ 19; Sept. 17, 2018 Tr. at 173:15-22.)

As yet another example of Dr. Dinello's practice of merely "considering" medication but not prescribing it, Dr. Dinello examined Mr. Medina on June 19, 2017, and noted, "[Patient] reluctant to consider Tramadol. MWAP approved 6/16/17. Consider Gabapentin. All other agents have not worked." (Agnew Decl. Ex. 50 (emphasis added).)15 Accordingly, Mr. Medina's Tramadol (for his headaches) was discontinued on June 25, and Gabapentin (for the neuropathy in his arms) was commenced on June 24. (Meds Spreadsheet at 10.)

On or about June 16, when Dr. Dinello submitted the MWAP form for Mr. Medina's Tramadol prescription, he answered "Yes" to the question "Is there evidence of recent drug abuse or diversion?" Under the "Reviewer Comments" section, Dr. Dinello wrote, "Court Ordered until Successful Alternative Treatment is Found." The forms are filed under seal. (Exhibit 49 to Agnew Decl. [dkt. no. 295-49].) But on the June 24 MWAP for Gabapentin, Dr. Dinello answered "No" to the same question about drug-seeking behavior. (Exhibit 54 to Agnew Decl. [dkt. no. 295-54].) As noted in the Meds Spreadsheet and above, though, Mr. Medina only received Tramadol through June 24. (Meds Spreadsheet at 10.)

After a call with the Court, Dr. Dinello met with Mr. Medina on June 24, 2017, and they agreed to explore a course of treatment that included discontinuing Tramadol, prescribing Toradol, re-prescribing Gabapentin, and discontinuing Mr. Medina's programming so he was not exposed to overhead lights. They also agreed that Dr. Dinello would issue Mr. Medina a permit for double mattresses to help alleviate back pain at night. (Medina Decl. at ¶ 21; Exhibit 53 to Agnew Decl. no. 295-53]; Exhibit 58 to Agnew Decl. [dkt. no. 295-58]; Sept. 17, 2018 Tr. at 97:9-98:16.)

Mr. Medina testified credibly that on July 14, 2017, he told Dr. Dinello that the Toradol was working well for his back and neck pain but did not say it was working for his headaches. (Sept. 17, 2018 Tr. at 98:21-99:11.) In Dr. Dinello's notes of their visit that day, however, after an entry spanning two boxes on the form, followed by Dr. Dinello's signature, there is another entry that says "[Patient] states Toradol is working well for [headache] and neck/back pain." (Exhibit 57 to Agnew Decl. ("Agnew Decl. Ex. 57") [dkt. no. 295-57], at 1; Sept. 17, 2018 Tr. at 98:25-99:5.) When asked at the hearing if he added that entry after the visit with Mr. Medina was over, Dr. Dinello initially quibbled, then testified that he "ha[d] no idea." (Sept. 17, 2018 Tr. at 177:9-179:2.)16 The doctor's evasive attitude and demeanor during the exchange (searching for answers, shifting explanations), and the fact that Mr. Medina had taken only two doses of Toradol in the six days before the visit, (Sept. 17, 2018 Tr. at 179:3-20; Pl. Ex. 57-A), persuade the Court that Mr. Medina did not say that the Toradol was working for his headaches and that Dr. Dinello added that comment to the chart without foundation as an afterthought and then lied about it on the stand, (see Agnew Decl. at ¶ 63; Agnew Decl. Ex. 57, at 1).

In any event, Mr. Medina quickly developed blood in his stool, an adverse reaction to the Toradol. (Medina Decl. at ¶ 22; Exhibit 59 to Agnew Decl. ("Agnew Decl. Ex. 59") [dkt. no. 295-59]; Exhibit 60 to Agnew Decl. ("Agnew Decl. Ex. 60") [dkt. no. 295-60].) That adverse reaction was confirmed by Nurse Salotti. (Agnew Decl. Ex. 59.) The Toradol was discontinued on July 18, 2017. (Medina Decl. at ¶ 23; Meds Spreadsheet at 12.)

On July 18, Mr. Medina filed a Reasonable Accommodation request for a deviation from the new MWAP policy so that his eye pain and headaches could be effectively treated with Tramadol. The request was denied by Dr. Koenigsmann. (Exhibit 10 to Medina Decl. [dkt. no. 293-10]; Exhibit 62 to Agnew Decl. ("Agnew Decl. Ex. 62") [dkt. no. 295-62].) Thus, Dr. Koenigsmann willfully denied Mr. Medina effective pain medication.

On August 9, 2017, Dr. Dyskin performed the cubital and carpal releases on Mr. Medina's right arm. (Dyskin Decl. at ¶ 16; Exhibit 9 to Dyskin Decl. [dkt. no. 286-9]; Sept. 17, 2018 Tr. at 61:2-16.) Again, Dr. Dyskin prescribed Gabapentin for post-surgical neuropathic pain relief. (Dyskin Decl. at ¶ 17; Exhibit 10 to Dyskin Decl. [dkt. no. 286-10].) Despite this recommendation and the pleas from Mr. Medina that he still suffered from neuropathy in his right arm, Dr. Dinello started actively weaning Mr. Medina from Gabapentin, contrary to the surgeon's recommendation. (Agnew Decl. at ¶¶ 71-73; Exhibit 65 to Agnew Decl. ("Agnew Decl. Ex. 65") [dkt. no. 295-65]; Exhibit 66 to Agnew Decl. [dkt. no. 295-66]; Exhibit 67 to Agnew Decl. [dkt. no. 295-67]; Medina Decl. at ¶ 27; Sept. 17, 2018 Tr. at 61:14-62:9, 64:16-25, 122:24-123:7; Dyskin Decl. at ¶ 17; see also Sept. 18, 2018 Tr. at 210:19-216:4 (Dr. Dinello testifying about whether Mr. Medina complained of pain following the surgery and his treatment of Mr. Medina); id. at 250:11-251:10 (same).)17 Dr. Dinello wrote: "Following surgery, I temporarily discontinued Plaintiff's prescription for [Gabapentin] pending an anticipated EMG. It was my understanding that [Gabapentin], by potentially masking pain, could prevent a conclusive finding as to whether the surgery had been successful." (Dinello Decl. at ¶ 32; see also Sept. 17, 2018 Tr. at 64:12-14.)18 By weaning Mr. Medina off Gabapentin after surgery, contrary to the surgeon's prescription, Dr. Dinello willfully denied Mr. Medina effective pain medication.

The EMG was not performed until November 14, 2017 — some two months later. When confronted with studies that contradicted his unsupported belief that Gabapentin could interfere with the results of an EMG, Dr. Dinello replied that "[he was] not convinced of the studies" but failed to offer any scientific basis for this disbelief. (Agnew Reply Decl. Ex. 200, at 129:10-25.) Instead, Dr. Dinello said that he once saw "one abstract" that he did not "know if [he] would agree with" about Gabapentin affecting EMGs but that he "c[ouldn't] reproduce and [didn't] remember where [he] saw it" and did not "print it or save it." (Id.) This apparently unremarkable abstract was the only basis offered for Dr. Dinello's rather remarkable decision to disregard the surgeon's advice because he wanted Mr. Medina "off all medications that could even have a hint of a possibility of influence." (Id. at 130:9-19.) A half-remembered abstract was enough for Dr. Dinello to make his decision, perhaps because he was "not necessarily worried about how [Mr. Medina] feels." (Id.)

Again, based on a post hoc and unsupported disbelief of the studies, Dr. Dinello willfully denied Mr. Medina effective pain medication — this time, contrary to the surgeon's advice. To recap, it was now late August of 2017, Mr. Medina had no effective medication for his eye pain and headaches,19 and Dr. Dinello was actively weaning the Gabapentin used to treat Mr. Medina's neuropathic pain. (Medina Decl. at ¶¶ 26-27.) Mr. Medina was still complaining of pain to nurses and Dr. Dinello. (E.g., Exhibit 64 to Agnew Decl. [dkt. no. 295-64]; Agnew Decl. Ex. 65.)

In anticipation of Mr. Medina's transfer to Wende in September, Dr. Dinello wrote to the medical staff there acknowledging, among his other health issues, Mr. Medina's "[s]ignificant photophobia causing frontal lobe headaches," but he also suggested that because Mr. Medina had not requested the Toradol — which caused blood in his stool — he was not in pain. (Exhibit 72 to Agnew Decl. [dkt. no. 295-72].) This is not the reaction of a physician diligently attempting to comply with a court order.

On September 18, Dr. Levitt wrote:

(Exhibit 75 to Agnew Decl. ("Agnew Decl. Ex. 75") [dkt. no. 295-75].)

Dr. Levitt was prescient. Dr. Paula Bozer replied: "Re. court order, the court's comment `or an alternative,' is, as you said, up to interpretation. I will support you if this is your clinical decision and interpretation of the court order. I would have interpreted it differently." (Exhibit 76 to Agnew Decl. ("Agnew Decl. Ex. 76") [dkt. no. 295-76].) This is another example of senior DOCCS medical personnel discouraging pain treatment that had been effective for Mr. Medina.

On September 22, Mr. Medina wrote to Dr. Levitt stating that he was experiencing eye and back pain, and "[w]hen [he] complain[s] to the nurses Tylenol and Motrin is offered, neither of which is effective. . . . Please rescribe [sic] the [Tramadol]." (Exhibit 13 to Medina Decl. [dkt. no. 293-13].) He also wrote to Deputy Superintendent of Health for Wende Correctional Facility, Robin Neal, stating the same. (See Exhibit 14 to Medina Decl. [dkt. no. 293-14].)

Mr. Medina wrote Dr. Levitt again on September 27, stating that he was "constantly exposed to light," was not receiving medication to relieve his pain, and asking for "[Tramadol] at 100mgs." (Exhibit 15 to Medina Decl. [dkt. no. 293-15].) He states that "Dr. Levitt told [him] she could not prescribe [Tramadol] because of `notes' in [his] file. She prescribed [him] Lamictal to which [he had] had a bad reaction." (Medina Decl. at ¶ 34.) In addition to Lamictal, Dr. Levitt prescribed Esgic, and she continued weaning him from the Gabapentin. (Medina Decl. at ¶¶ 35-36; Exhibit 80 to Agnew Decl. ("Agnew Decl. Ex. 80") [dkt. no. 295-81], at 3.) Dr. Levitt also refused Mr. Medina a program waiver to keep him out of bright lights, a decision Mr. Medina grieved. (Medina Decl. at ¶¶ 37-38; Exhibit 17 to Medina Decl. ("Medina Decl. Ex. 17"), dated June 21, 2018 [dkt. no. 293-17].)

Mr. Medina testified that "Esgic is for migraine headaches," (Sept. 17, 2018 Tr. at 65:4-6), a fact confirmed by Dr. Wolf, (Medina Decl. at ¶ 43; Exhibit 92 to Agnew Decl. ("Agnew Decl. Ex. 92") [dkt. no. 295-93]; Exhibit 93 to Agnew Decl. ("Agnew Decl. Ex. 93") [dkt. no. 295-94]; Sept. 17, 2018 Tr. at 109:11-14). He then went on to say that he explained to Drs. Wolf, Dinello, and Levitt that his eye pain was not being treated:

(Sept. 17, 2018 Tr. at 65:7-14.) There can be no doubt that DOCCS medical personnel were well aware of Mr. Medina's eye pain.

Mr. Medina repeatedly refused to take the Lamictal due to his history of adverse reactions. (E.g., Medina Decl. at ¶ 39; Exhibit 81 to Agnew Decl. [dkt. no. 295-82]; Exhibit 83 to Agnew Decl. [dkt. no. 295-84]; Exhibit 87 to Agnew Decl. [dkt. no. 295-88].) He testified:

(Sept. 17, 2018 Tr. at 66:14-25.)

In his September 30 grievance, Mr. Medina stated,

(Exhibit 16 to Medina Decl. ("Medina Decl. Ex. 16") [dkt. no. 293-16], at 5 (emphasis omitted).)

Dr. Levitt initially responded to Mr. Medina's grievances about the Lamictal that she did not see an allergy in his AHR but later found an entry which indicated a bad reaction. (Exhibit 88 to Agnew Decl. ("Agnew Decl. Ex. 88") [dkt. no. 295-89)20 Even after Plaintiff's counsel reached out to Defendants' counsel on October 6, 2017, about this prescription, it took until October 23 and the intervention of an administrator at Sullivan to get the Lamictal discontinued. (Meds Spreadsheet at 16-18; see Medina Decl. at ¶¶ 39-42 ("1 repeatedly refused Lamictal as there was no way I wanted to risk another reaction. I told anyone I could that I could not take Lamictal. . . . Finally, on October 16, an administrator intervened and the Lamictal was finally discontinued. It took almost a full month for anyone to stop the Lamictal prescription."); Exhibit 86 to Agnew Decl ("Agnew Decl. Ex. 86") [dkt. no. 295-87]; Exhibit 90 to Agnew Decl. [dkt. no. 29591]; Agnew Decl. Ex. 92; see also Exhibit 82 to Agnew Decl. ("Agnew Decl. Ex. 82") [dkt. no. 295-83]; Exhibit 85 to Agnew Decl. ("Agnew Decl. Ex. 85") [dkt. no. 295-86].) Dr. Levitt willfully denied Mr. Medina effective pain medication.21

Mr. Medina continued to complain about right arm pain, (Exhibit 101 to Agnew Decl. ("Agnew Decl. Ex. 101") [dkt. no. 295-102]), and grieved Deputy Superintendent Gabel's rescinding the waiver from programming granted by Dr. Dinello to prevent headaches from light exposure, (Medina Decl. Ex. 17, at 5-7; Exhibit 22 to Medina Decl. ("Medina Decl. Ex. 22") [dkt. no. 293-22], at 4-7). Those grievances were denied. (Medina Decl. Ex. 17, at 8-10; Medina Decl. Ex. 22, at 2.)

On October 23, 2017, when corresponding with Dr. Wolf and Dr. Susan Mueller about Mr. Medina, Dr. Koenigsmann wrote: "I am not familiar with his eye condition being associated with pain. We need input from ophthalmology regarding pain associated with keratoconus or resultant headaches from the condition," and Dr. Mueller wrote back to say that "[t]he usual, if any, complaint is itching, which, if present, is matched with antihistamine, gtts [drops]." (Sept. 18, 2018 Tr. at 193:5-19 (quoting P1. Ex. 214).) The record contains no complaints of eye itching by Mr. Medina. Dr. Koenigsmann admitted that he never followed up to see if that was what the ophthalmologist actually said or to request ophthalmology records. (Sept. 18, 2018 Tr. at 194:1-7.)

At the end of October, Mr. Medina was transferred to Sullivan Correctional Facility. (Medina Decl. at ¶ 41.) He testified that at that time, he was not being treated for his neuropathy, (Sept. 17, 2018 Tr. at 68:5-9), and that he requested "[Gabapentin] or Lyrica for the neuropathy" and Tramadol for an upcoming court appearance, (Sept. 17, 2018 Tr. at 68:10-16).

Mr. Medina met with Dr. Wolf, who discontinued the Esgic because it was for "migraine headaches," and on October 18, she finally submitted a MWAP request to prescribe Tramadol. (Medina Decl. at ¶ 43; Agnew Decl. Exs. 92-93; Exhibit 94 to Agnew Decl. ("Agnew Decl. Ex. 94") [dkt. no. 293-95].)22 She refused to reinstate his Gabapentin prescription, despite the fact that the EMG, necessary to "justify" his neuropathic pain, had still not occurred. (Exhibit 91 to Agnew Decl. [dkt. no. 295-92]; Agnew Decl. Ex. 93.)23

When RMD Dr. Mueller did not respond to the MWAP request on October 22, 2017, Dr. Gusman told Dr. Wolf that he had submitted an MWAP for a five-day emergency supply of Tramadol because "the patient [Mr. Medina] said he was having pain." (Sept. 17, 2018 Tr. at 132:13-133:7; Pl. Ex. 178.)24 Dr. Mueller left a message for Dr. Wolf saying that she, Dr. Mueller, did not feel that Tramadol was a good choice because Mr. Medina's problem was chronic, he had a history of addiction, and had a urinalysis test positive. But Dr. Wolf admitted that she did not know the dirty urine charge had been expunged or that Mr. Medina had not had any positive urine results in over twenty-two years of incarceration. Dr. Wolf testified that she did not have access to that information — only RMDs and the Chief Medical Officer did.(Sept. 17, 2018 Tr. at 151:16-152:13.)25 The MWAP was denied by Dr. Koenigsmann because "[a]fter lengthy consultation [with] Dr. Wolf, [they had] agreed that there are several better treatment alternatives available for this patient." (Exhibit 99 to Agnew Decl. [dkt. no. 295-100], at 8.)

At that time, Dr. Mueller told Dr. Wolf to consult the "current approach to neuropathic pain handout." (Sept. 17, 2018 Tr. at 152:14-25.) Upon being asked at the hearing where the document refers to pain management for eye pain and headaches, Dr. Wolf gave yet another two-page evasive answer before admitting that the document does not cover that topic. (Sept. 17, 2018 Tr. at 152:14-154:21.)26

Dr. Wolf also conceded that she was aware from Mr. Medina's medical records of the "many, many times he had been on [Tramadol] for lengthy periods of time" and that "his pain had been effectively controlled on [Tramadol] during those periods of time." (Sept. 18, 2018 Tr. at 159:25-160:13.) When asked why Mr. Medina would not be put back on the medication that had worked, Dr. Wolf testified that it was "[b]ecause of the side effects including death." She also testified that she relied on Mr. Medina's supposed "history of substance abuse" but conceded that "all of the medical problem lists entries dealing with diversion, cheeking, dirty urinalysis were" "most likely" added after he filed his lawsuit. (Sept. 17, 2018 Tr. at 159:25162:9.)27 Mr. Medina was not given Tramadol. (Exhibit 20 to Medina Decl. [dkt. no. 293-20]; Exhibit 21 to Medina Decl. [dkt. no. 293-21]; Exhibit 100 to Agnew Decl. [dkt. no. 295-101]; Sept. 17, 2018 Tr. at 69:24-25.)

Dr. Wolf willfully interfered with Mr. Medina's effective pain treatment, relying on general side-effects without considering his medical history. Also, because no contrary evidence was submitted, Dr. Wolf's testimony that the medical problem list entries dealing with diversion, cheeking, and dirty urinalysis were "most likely" added after this action was filed, that testimony is undisputed. From that testimony, the Court infers that DOCCS medical personnel deliberately and willfully attempted to interfere with Mr. Medina's effective pain treatment by adding problem list entries to Mr. Medina's records in retaliation for his filing a lawsuit.

Instead of Tramadol, Dr. Wolf prescribed Topamax, yet another medication to which Mr. Medina has a history of adverse reaction. (Agnew Decl. Ex. 101; Medina Decl. at ¶ 49; Sept. 17, 2018 Tr. at 70:1-25.) Again, with knowledge of Mr. Medina's pain, DOCCS medical personnel willfully failed to prescribe effective pain medication for Mr. Medina and instead continued their practice of prescribing medications that he had already had adverse reactions to.28 As set out on the Meds Spreadsheet at 18-20, between October 23 and December 9, Mr. Medina was not given Tramadol for his headaches or Gabapentin for his neuropathic arm pain. Instead, he was given only Esgic for migraines, which he did not suffer from, (Sept. 17, 2018 Tr. at 65:4-6; Agnew Decl. Exs. 92-94); Pamelor, which was ineffective, (Sept. 17, 2018 Tr. at 80:23-81:2); Toradol, which he previously had an adverse reaction to, (Medina Decl. at ¶ 22; Agnew Decl. Exs. 59-60); or Topamax, which he also previously had an adverse reaction to, (Agnew Decl. Ex. 101; Medina Decl. at ¶ 49; Sept. 17, 2018 Tr. at 70:1-25). This willful and deliberate violation of the 2017 Order lasted some seven weeks.

On November 19, 2017, Mr. Medina wrote to Dr. Wolf, asking "[w]hy do we not try other forms of treatment that do not include medications," which Dr. Wolf understood referred to physical therapy. (Exhibit 29 to Medina Decl. ("Medina Decl. Ex. 29") (dkt. no. 293-29], at 5; Sept. 17, 2018 Tr. at 142:7-13.) The physical therapist, however, noted that Mr. Medina was reporting tingling, cramping, and numbness and recommended occupational therapy and an EMG. (Sept. 17, 2018 Tr. at 142:25-143:14; Pl. Ex. 130.) In response, the DOCCS nurse practitioner wrote "Case discussed with Dr. Wolf" "Without referral to occupational therapy needed." (Sept. 17, 2018 Tr. at 143:15-20 (quoting Pl. Ex. 130).) When asked if that meant she was not going to send him to physical therapy, Dr. Wolf responded, "That is what it says, but that is not what I indicated" and then went on to imply that she would not send Mr. Medina out to occupational therapy because he was a flight risk. (Sept. 17, 2018 Tr, at 143:21-144:15.)29 The record does not contain any reference to Mr. Medina as a flight risk, so to say this about a blind inmate who had been incarcerated for some two decades is ludicrous. This is yet another example of DOCCS medical personnel, here Dr. Wolf, willfully denying Mr. Medina effective pain treatment — this time a non-medication treatment.

In early November, Mr. Medina was returned to Wende for a court date in the Western District of New York before the Honorable Francis J. Geraci. Mr. Medina was very concerned that his headaches would interfere with the trial. (Medina Decl. at ¶ 52.) In order to get Mr. Medina effective medication for his headaches, Judge Geraci sent a letter to Superintendent Stewart Eckert of Wende, along with the 2017 Order. (Exhibit 102 to Agnew Decl. ("Agnew Decl. Ex. 102") [dkt. no. 295-103].) In response, Dr. Levitt prescribed Mr. Medina Esgic, which Dr. Wolf had discontinued because it was only for migraines, and Lidoderm patches. (Exhibit 104 to Agnew Decl. [dkt. no. 295-105]; Exhibit 107 to Agnew Decl. [dkt. no. 295-108]; Sept. 17, 2018 Tr. at 72:6-16.) Both Judge Geraci's order and Mr. Medina's insistence on Tramadol for the court appearances were ignored. (Exhibit 105 to Agnew Decl. [dkt. no. 295-106]; Exhibit 106 to Agnew Decl. [dkt. no. 295-107]; see generally Agnew Decl. Ex. 102 (Judge Geraci's order).)30 Again, Dr. Levitt willfully denied Mr. Medina effective pain treatment for his court appearance.

Not only did Mr. Medina not get effective pain management for the trial, but when he was faced with disciplinary tickets for banging his head against the van window, (Sept. 17, 2018 Tr. at 102:18-103:6), Doctor Wolf testified in the disciplinary hearing that Mr. Medina only took two Esgic pills and thus could not have had a reaction, (Exhibit 160 to Agnew Decl. [dkt. no. 295-161], at 10-11). However, Dr. Levitt wrote a contemporaneous note that Mr. Medina had "7 pills × 4d" (seven pills for four days), and Mr. Medina testified credibly that he indeed had that quantity and that he took fifteen to sixteen pills. (Exhibit 108 to Agnew Decl. [dkt. no. 295-109]; Sept. 17, 2018 Tr. at 74:7-75:23, 100:22-101:22.) He also testified credibly that the Esgic did not help his pain and that he eventually vomited. (Sept. 17, 2018 Tr. at 76:5-12.) Again, Mr. Medina did not have effective medication for his eye pain and headaches and was very sick in court. (Affirmation of Donald W. O'Brien, Jr., Esq., dated June 21, 2018 [dkt. no. 287], at ¶¶ 7-18.) By Mr. Medina's own admission, the next day he was able to get Tramadol from someone other than a staff member at DOCCS and was able to make it through the day. (Exhibit 161 to Agnew Decl. [dkt. no. 295-162], at 2:20-3:5.)

Back at Sullivan in mid-November, the Toradol, which caused bleeding, was re-prescribed, and Topamax, yet another medication to which Mr. Medina had a history of adverse reaction, was added. (Medina Decl. at ¶¶ 54-55; Exhibit 111 to Agnew Decl. [dkt. no. 295-112]; Exhibit 112 to Agnew Decl. [dkt. no. 295-113]; Exhibit 117 to Agnew Decl. [dkt. no. 295-118]; Meds Spreadsheet at 18-20.) Mr. Medina confirmed that he still suffered neuropathic pain during this period. (Sept. 17, 2018 Tr. at 77:23-25.) Again, DOCCS medical personnel failed to prescribe effective pain medication and continued to prescribe medications that Mr. Medina previously had adverse reactions to.

During this period, Mr. Medina refused ineffective medications (e.g., Esgic) and medications that caused side effects (e.g., Lamictal), (see Meds Spreadsheet at 16-21),31 and wrote more letters. For example, on November 11, Mr. Medina wrote Deputy Superintendent Williams, informing him that "a nurse tried to give [him] Topamax and Tylenol to combat [his] eye pain and headaches," that "[he] had a negative reaction to Topamax and it was discontinued and the Tylenol [was] ineffective," and asking to "have [him] put on an effective pain medication and have the doctors stop recycling the medications that have proven ineffective." (Exhibit 26 to Medina Decl. [dkt. no. 293-26].) Mr. Medina also wrote to Dr. Wolf on November 13 informing her that he was still without effective pain relief. (Exhibit 27 to Medina Decl. [dkt no. 293-27]; see also Medina Decl. Ex. 29.) On a few occasions, Mr. Medina was forced to take Toradol, despite the risk of bleeding, due to his severe pain. (Medina Decl. at ¶ 58; Exhibit 119 to Agnew Decl. [dkt. no. 295-120]; Exhibit 120 to Agnew Decl. [dkt. no. 295-121]; Exhibit 121 to Agnew Decl. [dkt. no. 295-122]; Exhibit 122 to Agnew Decl. [dkt. no. 295-123]; Exhibit 123 to Agnew Decl. [dkt. no. 295-124]; Exhibit 125 to Agnew Decl. [dkt. no. 295-126].) Again, DOCCS medical personnel willfully denied Mr. Medina effective pain medication.

On November 14, 2017, Mr. Medina's follow-up EMG was finally performed. The EMG showed progress on Mr. Medina's right side, but it also demonstrated that Mr. Medina was still suffering neuropathic arm pain. (Exhibit 114 to Agnew Decl. [dkt. no. 295-115]; Medina Decl. at ¶ 57; see Dyskin Decl. at ¶¶ 18-20.) Ms. Arlotti, the technician who conducted the EMG, (Sept. 17, 2018 Tr. at 79:9-15), told Mr. Medina that there was no reason he should not be on neuroanalgesics until the nerves healed, (Medina Decl. at ¶ 57). Dr. Dyskin, the surgeon who performed Mr. Medina's surgeries, agreed. (Dyskin Decl. at ¶¶ 19-20 ("[I]n my medical judgment there is no reason not to treat Mr. Medina's residual neurological pain with Gabapentin until it is fully healed.").) Again, DOCCS medical personnel willfully refused to prescribe effective pain medications for Mr. Medina — despite the opinions of outside medical providers. (Medina Decl. at ¶¶ 59-63; Exhibit 28 to Medina Decl. ("Medina Decl. Ex. 28") [dkt. no. 293-28]; Medina Decl. Ex. 29; Exhibit 30 to Medina Decl. [dkt. no. 293-30]; Agnew Decl. at ¶¶ 121-132; Agnew Decl. Exs. 114-117, 119-123; Exhibit 118 to Agnew Decl. [dkt. no. 293-119]; Exhibit 126 to Agnew Decl. ("Agnew Decl. Ex. 126") [dkt. no. 295-127]; Exhibit 127 to Agnew Decl. [dkt. no. 295-128].)

On November 29, 2017, Dr. Jeffrey Arliss, another orthopedist, examined Mr. Medina and made the same finding — that neuroanalgesic medication was appropriate treatment for Mr. Medina while his nerves continued to heal. (Exhibit 11 to Dyskin Decl. ("Dyskin Decl. Ex. 11") [dkt. no. 286-11].) Dr. Arliss wrote, "I do not disagree [with] restarting the Gabapentin."(Id.; Sept. 17, 2018 Tr. at 145:19-146:7; Pl. Ex. 129.) Indeed, Dr. Dyskin wrote, "I have reviewed the reports and found that . . . Dr. Arliss . . . believed use of neuromodulating medications by Mr. Medina while his nerves healed would be beneficial. . . . I also have no reason to believe Mr. Medina is malingering about residual neuropathic pain." (Dyskin Decl. at ¶ 20 (citing Dyskin Decl. Ex. 11).) Despite the recommendation of these specialists and Mr. Medina's assertions of pain, Dr. Wolf determined that "no action" was necessary and refused to restart Gabapentin. (Medina Decl. at ¶¶ 63-64; Exhibit 31 to Medina Decl. ("Medina Decl. Ex. 31") [dkt. no. 293-31], at 5-6; Agnew Decl. Ex. 126; Exhibit 129 to Agnew Decl. [dkt. no. 295-130].)

Instead, in response to the specialists' recommendations, Dr. Wolf wrote to her colleagues, indicating that "[she] may have a problem." (Sept. 17, 2018 Tr. at 146:15-147:16 (quoting Pl. Ex. 215).) The problem, she admitted at the hearing, was that she and the RMD did not want Mr. Medina back on Gabapentin. (Sept. 17, 2018 Tr. at 147:17-149:1.)32 Disregarding specialists' recommendations are not the responses of medical personnel diligently trying to obey a court order.

Dr. Wolf admitted that Mr. Medina was the only patient she treated with a federal court order regarding his healthcare, (Sept. 17, 2018 Tr. at 149:2-4), and conceded that the various doctors wrote among themselves about his care, (Sept. 17, 2018 Tr. at 149:5-8). Upon being asked why Mr. Medina's care could not be coordinated, even when he is transferred to a different facility, Dr. Wolf gave an evasive answer which boiled down to DOCCS medical personnel's not wanting to prescribe Gabapentin. (Sept. 17, 2018 Tr. at 149:2-150:20.)33 Again, DOCCS medical personnel willfully failed to treat Mr. Medina's pain because of the general concerns about addictive drugs without regard to his medical history.

Finally, with an emergency contempt hearing looming, on December 4, 2017, Dr. Wolf, under the direction of Dr. Koenigsmann, prescribed Gabapentin to address Mr. Medina's neuropathic pain. (Exhibit 132 to Agnew Decl. [dkt. no. 295-133]; Exhibit 133 to Agnew Decl. [dkt. no. 295-134]; Exhibit 134 to Agnew Decl. [dkt. no. 295-135]; Exhibit 135 to Agnew Decl. ("Agnew Decl. Ex. 135") [dkt. no. 295-136].) The MWAP form lists medicines that have failed to treat Mr. Medina's pain management issues., including, but not limited to, Celebrex, Topamax and Lamictal. Dr. Wolf wrote: "[Medina] has been on [L]amictal, [C]ymbalta, [M]obic, [T]rileptal [C]elebrex, [T]opamax, [M]otrin all with non-toerable [sic] side effects or no relief." (Exhibit 180 to Agnew Reply Decl. ("Agnew Reply Decl. Ex. 180") [dkt. no. 356-19].) Dr. Koenigsmann approved the MWAP. (Agnew Decl. Ex. 135, at 2.) At the hearing on September 18, 2017, counsel asked Dr. Koenigsmann what changed his mind to prescribe Gabapentin after he and the RMDs under his supervision refused to do so until that point in time; he answered, "I have no idea." (Sept. 18, 2018 Tr. at 196:4-8.) Dr. Dinello professed himself to be "disappointed" that Gabapentin was re-prescribed.34 (Exhibit 140 to Agnew Decl. [dkt. no. 295-141], at 1.) Again, this is not the reaction of a physician diligently trying to comply with a court order.

It was Dr. Dinello's testimony that he intended to wean Mr. Medina off the medication after surgery and that Mr. Medina agreed with that course of treatment. (Sept. 18, 2018 Tr. at 210:1-18.) He also denied that Mr. Medina told him that he was still having pain in his right arm and that he had requested that the Gabapentin be reinstated. (Sept. 18, 2018 Tr. at 210:19-211:5.) In light of the written complaints of pain by Mr. Medina in the record, (e.g., Medina Decl. Exs. 28, 31; Exhibit 33 to Medina Decl. [dkt. no. 293-33]), the Court finds Dr. Dinello's denial to be less than honest.

Dr. Dinello went to see Mr. Medina on January 4, 2018, and while Dr. Dinello agreed to discontinue many of the failed medications, he failed to implement any other changes to Mr. Medina's treatment, even when coaxed by the Court on a call. (Agnew Decl. Ex. 143.) Finally, after that Court call, in a January 22, 2018, email to Dr. Wolf, Dr. Dinello went through Mr. Medina's ailments and suggested increasing the Gabapentin prescription to the "correct dos[e]" and giving him one to two tablets (50-100mg) of Tramadol when Mr. Medina might be exposed to light for more than two hours. (Agnew Decl. Ex. 145.)

However, these recommended treatments were never implemented — again denying Mr. Medina effective pain medication. Dr. Dinello then wrote: "Since Dr. Koenigsman[n] approved the Gabapentin, I might just be sending him the MWAP request forms." (Sept. 18, 2018 Tr. at 212:11-12 (quoting Pl. Ex. 140).) After struggling at the hearing to find a benign explanation for that email (and denying that he was being petulant in his response), Dr. Dinello then launched into a condescending, patronizing soliloquy about how Mr. Medina was "getting kind of a bad rap."35 Dr. Dinello's testimony about his concerns for Mr. Medina was not credible.

Then, a month later, Dr. Dinello increased the dosage of Gabapentin to three times per day, writing: "Since we are ordered to treat his neuropathic pain and have him on Gabapentin, it can be increased to 500 milligrams TID instead of BID. That's the [correct] dosing regimen anyway." (Sept. 18, 2018 Tr. at 215:1-5 (quoting Pl. Ex. 145).) After counsel noted at the hearing Dr. Dinello's reluctance a month earlier to increase Mr. Medina's dosage, Dr. Dinello testified that he "felt compelled by the court order" to do so but then testified that he did not feel compelled to treat Mr. Medina's headaches with Tramadol, which had been shown to be effective. (Sept. 18, 2018 Tr. at 215:7-216:4.) When asked the basis for that view, he retreated to the general risk factors without addressing Mr. Medina's specific medical history.36 Again, there is no doubt that Dr. Dinello was well aware of Mr. Medina's headache pain:

(Sept. 18, 2018 Tr. at 220:12-19.) By refusing to treat Mr. Medina's headache pain, Dr. Dinello willfully failed to obey the 2017 Order.

Dr. Dinello also acknowledged the recommendation of the ophthalmologist, Dr. Robert Eden, from January 31, 2018, that Mr. Medina was "stable long term on Tramadol — recommend restarting oral med." (Sept. 18, 2018 Tr. at 222:3-16; Exhibit 3 to Eden Decl.37 [dkt. no. 285-3].) Yet again, Dr. Dinello willfully denied Mr. Medina effective pain medication recommended by an outside specialist.

On January 24, 2018, Mr. Medina wrote a "letter to Deputy Superintendent Williams informing him that [he] was not receiving any medication for [his] eye pain and resulting headaches." (Medina Decl. at ¶ 72; Exhibit 36 to Medina Decl. [dkt. no. 293-36].) On February 20, 2018, Mr. Medina's eyes became so irritated while working on a desktop CCTV that Dr. Wolf had to treat him over three days. (See Agnew Decl. at ¶ 161; Exhibit 153 to Agnew Decl. [dkt. no. 295-154].) On March 13, 2018, Mr. Medina vomited at his deposition due to light exposure. (Agnew Decl. at ¶¶ 163-168; Medina Decl. at ¶ 82; Exhibit 41 to Medina Decl. ("Medina Decl. Ex. 41"), dated June 25, 2018 [dkt. no. 293-41]; Sept. 17, 2018 Tr. at 87:15-17.) Again, DOCCS medical personnel willfully failed to provide Mr. Medina with effective pain medication over this period.

Thereafter, Mr. Medina grieved the lack of pain medication for his headaches as well as the MWAP policy as applied to him. (Medina Decl. at ¶¶ 84-85, Exhibit 42 to Medina Decl. [dkt. no. 293-42]; Exhibit 43 to Medina Decl. [dkt. no. 293-43].) In early June, Mr. Medina attended a trial via video conference and, once again, suffered from headaches. (Medina Decl. at ¶ 86.) After two more "documented" episodes in June 2018 and with the contempt hearing looming, Dr. Dinello and Mr. Medina discussed releasing Mr. Medina into general population if Mr. Medina would drop all his lawsuits. (Sept. 18, 2018 Tr. at 223:21-227:24; Pl. Ex. 204.) When asked why he did this, Dr. Dinello responded, "I felt compelled by the federal court order to do so." (Sept. 18, 2018 Tr. at 227:17-21.) Dr. Dinello also testified that he removed the medical problem codes from Mr. Medina's Medical Problem List to "destress" him. (Sept. 18, 2018 Tr. at 229:21-231:8.)

On July 10, 2018, Dr. Dinello wrote the prescription of Tramadol for `Q12 PRN," meaning Mr. Medina could have one 50mg pill every 12 hours, and the medication was received July 18. (Dinello Decl. at ¶ 39; Exhibit 199 to Agnew Reply Decl. [dkt. no. 356-38] (last entry); Meds Spreadsheet at 29; Sept. 17, 2018 Tr. at 175:8-12.) Mr. Medina took one dose on July 18, one dose on July 19, one dose on July 20, none on July 21, one dose on July 22, none on July 23, two on July 24, and one on July 25, (see Meds Spreadsheet at 29-30) — not "every day for a week" as Defendants assert in their brief, (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Contempt, dated Aug. 3, 2018 [dkt. no. 341], at 26). Mr. Medina took seven out of sixteen available doses in accordance with his prescription. While Dr. Dinello characterized Mr. Medina as "exhibiting addictive or drug seeking behavior," (Dinello Decl. at ¶ 39), in fact, Mr. Medina had never taken a dose above or even at the prescription level, (Sept. 17, 2018 Tr. at 125:18-25). It was the same dose Mr. Medina took consistently February 6, 2017, to March 7, 2017, and less than the dose prescribed from March 8, 2017, to June 1, 2017. While admitting that he had no idea how many doses Plaintiff had taken or when he had taken them, Dr. Dinello discontinued Mr. Medina's medication on July 26, 2018, because Mr. Medina had been rude to a nurse when he was in pain and did not receive medication for over four hours. (Sept. 18, 2018 Tr. 246:5-248:14; Sept. 17, 2018 Tr. at 90:17-91:7, 115:4117:5, 127:1-8.) Again, this is not the reaction of a physician trying diligently to comply with a Court order.

3. Post-2017 Order Window Tinting

The Court has reviewed in detail the evidence and testimony with respect to window tinting. There were certainly occasions when DOCCS was not in compliance with the 2017 Order. For example, following the issuance of the 2017 Order, Mr. Medina was housed in Cell B-11-7 at Wende which, according to Deputy Superintendent for Security Kevin Brown, "does not have any windows inside the cell" or "directly face a window." (Declaration of Deputy Superintendet [sic] Kevin Brown in Opposition to Plaintiff's Motion for Contempt, dated Aug. 1, 2018 [dkt. no. 328], at ¶ 3.) While that might technically be true, the photographs clearly showed windows across from the cell at a slight diagonal with light streaming in and no tinting. (Exhibit 209 to Agnew Reply Decl. [dkt. no. 356-48].)

On March 2, 2017, Mr. Medina filed a grievance, stating: "I was in the Tri-ICP mental health program in B-Block. My cell faced a wall but also part of a window; and the other window allowed sunlight to directly enter my cell. Thus, I requested that the windows be tinted. In response, Ms. [Katherine] Bergamasco [,Instructor of the Blind,] stated, `we are not tinting the windows.'" (Exhibit 2 to Medina Decl. ("Medina Decl. Ex. 2") [dkt. no. 293-2]). The superintendent cited to Ms. Bergamasco's report dated March 17, 2017, and later stated on March 27, 2017, that there "[were] currently no cells available" and that Mr. Medina "ha[d] been offered both fit-over lenses and sleeping masks for use in his cell; however, he refuse[d] them both." (Medina Decl. Ex. 2.) "We are not tinting the windows" is not the reaction of an administrator diligently trying to comply with a court order.

On October 25, Mr. Medina filed a grievance at Sullivan due to a lack of tint on the windows in his cell. (Exhibit 24 to Medina Decl. ("Medina Decl. Ex. 24") [dkt. no. 293-24].) In the Grievance Report from Sgt. L. Brown to Superintendent E. Burnett, DOCCS stated that "Inmate Medina did not provide evidence of a federal court order to have his cell windows tinted," but the report then noted that Sgt. Brown "f[ou]nd a portion of th[e] grievance with merit as the court order has warranted Inmate Medina to have tint on his window. Upon his arrival back to Sullivan Correctional Facility the window will be tinted." (Medina Decl. Ex. 24.)

Then, on January 24, 2018, Mr. Medina wrote a letter to Deputy Superintendent Burnett informing him that he "was currently without any pain medication" and that his "cell [was] bright with sunshine" because the tint had not yet been installed. (Exhibit 35 to Medina Decl. [dkt. no. 293-35].). This continued for at least four days. (Sept. 18, 2018 Tr. 47:2-22.)

On the other hand, there was much evidence of compliance. For example, when Mr. Medina arrived at Five Points on June 1, 2017, tinting was ordered for the fixed window in his cell. (Declaration of Amy Lamanna in Opposition ("Lamanna Decl."), dated Aug. 3, 2018 [dkt. no. 332], at ¶¶ 2-5.) Furthermore, on June 5, Tricia Miller, Deputy Superintendent for Administration, emailed Lt. Edward Rizzo and others, saying, "Following conversation with DSP, it has been determined that the overhead light in [Medina's] cell should be turned off since we are unable to dim it. Maintenance/MVO is working on getting the window tinting." (E-mail from Tricia M. Miller to Edward J. Rizzo and Maurice J. Bouvia (June 5, 2017, 1:43 PM) (on file at MEDINA006582).)

Moreover, on June 14, Mr. Medina was dissatisfied with the 35% tint on his window, he created a disturbance, ripped the tinting from the window, and replaced it with manila folders and yellow paper. "Five Points Security staff allowed the paper to remain in place temporarily since Plaintiff spent much of the following two months, July 15, 2017, through August 31, 2017 in the Infirmary" before being transferred to Wende on September 5. (Lamanna Decl. at ¶ 8.) Mr. Medina testified that he was placed in his own room in the infirmary, exposed to the same amount if light in the infirmary as in B Block cell, and didn't complain about the window because he "put paper in the window." (Exhibit A to Turkle Decl.38 [dkt. no. 342-1], at 70:1-22.)

Then, in late October of 2017, Mr. Medina returned to Sullivan where he was placed in a cell, and the window across from his cell was not tinted. Mr. Medina grieved the lack of tint, and requested that the window be tinted and that DOCCS allow him to sleep with his head away from the window. (Medina Decl. Ex. 24, at 5.) The grievance report stated: "the grievant is entitled to have his cell window tinted per court order. When the grievant arrived to [Sullivan] the material needed to tint the grievant's window was not available, but is currently on order." (Id. at 1.) Additionally, Mr. Medina spent substantial periods of time in cells with some degree or other of window tint.

II. LEGAL STANDARD

A. Standard for Contempt

When a party fails to comply with a court order, he or she may be held in civil contempt if "(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner." Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004) (citing King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995)). It is not necessary to "establish[] that the violation was willful." Paramedics Electromedicina, 369 F.3d at 655 (citing Donovan v. Sovereign Sec. Ltd., 726 F.2d 55, 59 (2d Cir. 1984)).

An order is clear and unambiguous when it "leaves no uncertainty in the minds of those to whom it is addressed" and instead allows them "to ascertain from the four corners of the order precisely what acts are forbidden." King, 65 F.3d at 1058; see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 292 (2d Cir. 2008) ("[T]he decree underlying contempt must be sufficiently clear to allow the party to whom it is addressed to ascertain precisely what it can and cannot do."). The proper analysis focuses on "whether [the order] unambiguously proscribes the challenged conduct," not whether it is "clear in some general sense." Chao, 514 F.3d at 292.

The purpose for which the relief was granted is also relevant to "deciding whether an injunction has been violated," as "the spirit of the injunction" may have been violated "even though its strict letter may not have been disregarded." John B. Stetson Co. v. Stephen L. Stetson Co., 128 F.2d 981, 983 (2d Cir. 1942).

A plaintiff must also clearly and convincingly demonstrate that "defendants did not . . . comply with the order." Latino Officers Ass'n City of N.Y., Inc. v. City of N.Y., 558 F.3d 159, 164 (2d Cir. 2009). For civil contempt, this clear and convincing standard requires "proof adequate to demonstrate a reasonable certainty that a violation occurred." BeautyBank, Inc. v. Harvey Prince LLP, 811 F.Supp.2d 949, 956 (S.D.N.Y. 2011) (internal quotation omitted).

Finally, the court must determine "whether defendants have been reasonably diligent and energetic in attempting to accomplish what was ordered." Powell v. Ward, 487 F.Supp. 917, 933 (S.D.N.Y. 1980), aff'd and modified, 643 F.2d 924 (2d Cir. 1981) (quoting Aspira of N.Y. v. Board of Education of City of N. Y., 423 F.Supp. 647, 653-54 (S.D.N.Y. 1976)). When a defendant acts based on what appears to be "`a good faith and reasonable interpretation of (the court's order),' he should not be held in contempt." Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982) (alteration in original) (quoting Rinehart v. Brewer, 483 F.Supp. 165, 171 (S.D. Iowa 1980) (cited with approval by Schmitz v. St. Regis Paper Co., 758 F.Supp. 922, 927 (S.D.N.Y. 1991)). However, a defendant is "not reasonably diligent" when he or she ignores the order or takes only superficial actions that "strain both the language and intent of the order." Powell, 487 F. Supp. at 933-34. It is even more troubling when a defendant takes actions "that contravene the provisions of the order." Id. at 934.

B. Standard for Attorney's Fees and Fines

As the Court of Appeals held in Weitzman v. Stein, "the sanctions for civil contempt serve two purposes: to coerce future compliance and to remedy any harm past noncompliance caused the other party." 98 F.3d 717, 719 (2d Cir. 1996) (citing United States v. United Mine Workers of America, 330 U.S. 258, 302-04 (1947)). A district judge "is vested with wide discretion in fashioning a remedy" to encourage future compliance. Id. (citing Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir. 1979)). However, "[t]he compensatory goal . . . can only be met by awarding to the plaintiff any proven damages." Id. Regardless of the relief granted, the district court "may award appropriate attorney fees and costs to a victim of contempt." Id.

The Court of Appeals has found that "the willfulness of the contemnor's misconduct" can support a decision to award fees. Id.; Vuitton et Fils, 592 F.2d at 130 ("[I]t is appropriate for the court . . . to award the reasonable costs of prosecuting the contempt, including attorney's fees, if the violation of the decree is found to have been willful."). It remains an open question whether a finding of willfulness is required to award fees. Jacobs v. Citibank, N.A., 318 F. App'x 3, 5 n.3 (2d Cir. 2008). However while it "may not necessarily be a prerequisite to an award of fees and costs, a finding of willfulness strongly supports granting them." Weitzman, 98 F.3d at 719. To survive review after finding willfulness, a district court "would need to articulate persuasive grounds for any denial of compensation for the reasonable legal costs of the victim of contempt." Id.

The court may also answer civil contempt with "a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance." Hutto v. Finney, 437 U.S. 678, 691 (1978). When the plaintiff proves harm caused by the violation, "compensatory damages are appropriate." Vuitton et Fils, 592 F.2d at 130. The purpose of these sanctions is "not to vindicate the court's authority but to make reparation to the injured party and restore the parties to the position they would have held had the injunction been obeyed." Id. Once damages are established, "[t]he district court is not free to exercise its discretion and withhold an order in civil contempt awarding [them]." Id.; Weitzman, 98 F.3d at 720 ("It is error to withhold damages that are supported by the record.").

III. DISCUSSION

A. Pain Medication

There is no question on this record that the 2017 Order was clear and unambiguous. First, Defendants neither appealed that immediately appealable preliminary injunction nor requested clarification. Second, the record is littered with emails where DOCCS medical personnel discuss among themselves the need to treat Mr. Medina with Tramadol or an equally effective pain medication. For example, Deputy Superintendent Lamanna wrote to Tricia Miller, saying, "I was correct in my assumption that the Judge can't order a specific medicine be prescribed only that this pain needs to be addressed appropriately." (Exhibit 40 to Agnew Decl. ("Agnew Decl. Ex. 40") [dkt. no. 295-40]; see also, e.g., Exhibit 52 to Agnew Decl. [dkt. no. 295-52]; Agnew Decl. Exs. 62, 75-76, 140.) Similarly, Dr. Levitt wrote her colleagues regarding Mr. Medina's return to Wende:

(Agnew Decl. Ex. 75 (emphasis added).)

These emails, as well as the other communications, remove all doubt that the 2017 Order left "no uncertainty in the minds of those to whom it [was] addressed" as to what conduct was proscribed. King, 65 F.3d at 1058 (internal quotation marks omitted) (quoting Hess v. N.J. Trans Rail Operations, Inc., 846 F.3d 114, 116 (2d Cir. 1988)); see also Chao, 514 F.3d at 292. "Both the Order and the prior opinions in this case make it clear that the central concern was" to ensure Mr. Medina's pain was treated with medication at least as effective as Tramadol. Powell, 643 F.2d at 932. Thus, the first requirement for a finding of contempt is met.

Proof of non-compliance is clear and convincing. First, there is no question that from October 23 through December 9, 2017, Mr. Medina received no Tramadol (for his headaches) and no Gabapentin (for his neuropathic pain), but only a few doses of Esgic (established on this record to be for migraines which Mr. Medina does not suffer from), Topamax and Toradol (to which he had previously suffered adverse reactions), and Pamelor (which was ineffective). There is also no question that Mr. Medina suffered pain throughout this time.

Second, the written record establishes clearly and convincingly that Mr. Medina's pain treatment over the post-2017 Order period was generally ineffective. His and his counsel's scores of communications with DOCCS personnel clearly document his pain complaints. The outside experts, Drs. Dyskin and Arliss, saw no reason to believe he was not in pain or that he was malingering. (Dyskin Decl. at ¶ 9; Dyskin Decl. Ex. 11.) Even Dr. Dinello believed that Mr. Medina was in pain. (Sept. 17, 2018 Tr. at 169:4-12.) There is also no question that Mr. Medina vomited after a court appearance before Judge Geraci and at a deposition. (Sept. 17, 2018 Tr. at 76:5-12; Agnew Decl. at ¶ 166; Medina Decl. at ¶ 53; Medina Decl. Ex. 41.) And, as noted above, the Court credited Mr. Medina's testimony that he was in pain. Mr. Medina's continued pain, combined with DOCCS' provision of medications that either did not address his health issues, were dangerous for him to take, or were otherwise ineffective, are more than adequate "to demonstrate a reasonable certainty" that "defendants did not . . . comply with the order" requiring them to treat Mr. Medina's pain with Tramadol or an equally effective medication. Latino Officers Ass'n, 558 F.3d at 164; BeautyBank, 811 F. Supp. 2d at 956. Thus, the second requirement for a finding of contempt is met.

Third, the Court finds that DOCCS personnel did not diligently attempt to comply with the 2017 Order. In fact, as set out at length above, the evidence establishes clearly and convincingly that DOCCS medical personnel energetically worked NOT to comply with the 2017 Order. On numerous occasions, they ignored Mr. Medina's complaints of pain and, in an effort to avoid prescribing Tramadol or Gabapentin, repeatedly prescribed medications he had previously suffered an adverse reaction to. AND they did so in the face of Mr. Medina's telling them of the adverse reactions and even his writing facility superintendents to the same effect. Most charitably, such actions suggest "superficial changes" that "cut off consideration of the necessity . . . to comply with the letter and spirit of the order." Powell, 487 F. Supp. at 934. More likely, and more troublingly, these actions indicate that defendants knowingly and directly "contravene[d] the provisions of the order." Id. Regardless, asserting that such actions represent a reasonably diligent attempt to comply would "strain both the language and intent of the order." Id.

The record also establishes that, while the dangers of opioid medications were known to DOCCS medical personnel at least by 2003, they ignored Mr. Medina's effective pain treatment with such medications (without incident) by DOCCS personnel for many years and worked hard to avoid prescribing these medications based only on the most general counterindications.(See, e.g., Sept. 17, 2018 Tr. at 159:25-162:9, 167:18-22; Sept. 18, 2018 Tr. at 215:1-217:22; Pl. Ex. 232, at Ex. 5; Agnew Decl. Exs. 17, 40, 62; Medina Decl. at ¶¶ 34, 49; Medina Decl. Exs. 16, 23.) Indeed, Mr. Medina testified that Dr. Dinello told him that, in his opinion, "outside of cancer, no condition should be treated with opioids." (Sept. 17, 2018 Tr. at 95:16-96:6.) This was particularly egregious in light of the lecture given by DOCCS' expert, Dr. Argoff, to the effect that for some patients, opioid therapy is "effective and safe" and that the medical community "must maintain the availability of . . . analgesics to meet the specific and personalized needs of the people [they] treat." (Sept. 18, 2018 Tr. at 319:23-320:11.) Defendants ignored Mr. Medina's complaints of pain and failed to consider Mr. Medina's particular medical needs. This clearly "violated their obligations under the [2017 Order] by failures of diligence . . . and steadfast purpose to effectuate the prescribed goals" of effectively treating Mr. Medina's pain. Powell, 487 F. Supp. at 933 (citation omitted); Aspira, 423 F. Supp. at 654. Thus, the third and final requirement for a finding of contempt is satisfied.

B. Window Tinting

The 2017 Order might not have been clear and unambiguous with respect to the window tinting because it did not specify the level of tint required.

Although there were instances of non-compliance, one or two of which might even be clear and convincing evidence of noncompliance, e.g., after Mr. Medina requested window tinting, Ms. Bergamasco responded "we are not tinting the windows," (Medina Decl. Ex. 2, at 3), the evidence overall not does support a finding of clear and convincing non-compliance.

Finally, the evidence overall demonstrates efforts to comply with the spirit of the order, particularly the occasions when DOCCS personnel permitted Mr. Medina to cover his windows with manila envelopes or to hang a blanket in front of the window. See Chao, 514 F.3d at 293 (concluding that it was reasonable not to impose sanctions for contempt "under a decree that did not, at the relevant time, unambiguously proscribe [defendant's] actions and . . . with which the [defendant] attempted to comply in a reasonable manner"). Accordingly, the Civil Contempt Motion with respect to window tinting is denied.

C. Attorney's Fees and Fines

Having found DOCCS medical personnel in contempt for failing to comply with the effective pain treatment portion of the 2017 Order, the Court now considers appropriate sanctions. As noted above, the Court of Appeals held in Weitzman, 98 F.3d at 719 (citing United Mine Workers, 330 U.S. at 302-04), "the sanctions for civil contempt serve two purposes: to coerce future compliance and to remedy any harm past noncompliance caused the other part." Because Mr. Medina has been released from custody, see Inmate Population Information Search, N.Y. STATE DEP'T OF CORR. & CMTY. SUPERVISION, http://nysdoccslookup.doccs.ny. gov/GCAOOPOO/WIQ3/WINQ130 (last visited Feb. 12, 2019) (enter "Medina" into the "Last Name" field, enter "Anthony" into the "First Name" field, enter "99-A-2999" into the "DIN" field, then click "Submit"), coercive sanctions are no longer appropriate.39

As the district court held in Powell, judges must "consider the character and magnitude of the harm." 487 F. Supp. at 935 (quoting United Mine Workers, 330 U.S. at 304). As in Powell, Mr. Medina suffered "irreparable harm" due to the "continu[ed] deprivation of [his] constitutional rights," id., here suffering severe pain and other discomfort needlessly. Because of this, the Court "conclude[s] that a fine is necessary to demonstrate to the defendants the seriousness with which [the Court] view[s] their . . . non-compliance." Id.

Because Mr. Medina has clearly and convincingly proved that he suffered serious pain and other discomfort as a result of DOCCS medical personnel's failure to comply with the effective pain treatment portion of the 2017 Order, the Court will award compensation to him to remedy the harm caused by non-compliance. In Parker v. United States, 153 F.2d 66 (1st Cir. 1946),

Vuitton et Fits, 592 F.2d at 130 (citing Parker, 153 F.2d at 70). The sanction awarded, therefore, must be sufficient to compensate Mr. Medina for his pain and other discomfort.

The Court acknowledges that although willfulness "may not necessarily be a prerequisite to an award of fees and costs, a finding of willfulness strongly supports granting them." Weitzman, 98 F.3d at 719. Here, the Court has found that DOCCS medical personnel's failure to treat Mr. Medina's pain was willful. Accordingly, the Court will award to Plaintiff's counsel the reasonable costs of prosecuting the contempt, including attorney's fees. Vuitton et Fils, 592 F.2d at 130.

As a result of the hundreds of docket entries since Plaintiff's counsel's initial letter raising the issue of contempt and the mountains of evidence submitted on the Civil Contempt Motion, the Court is very familiar with the quality and quantity of work performed by Ms. Agnew. Obtaining documents was difficult, and the numerous types of documents, e.g., medication records, Ambulatory Health Records, Grievance files, transcripts, etc., only exacerbated the situation. Ambulatory Health Records were generally in handwriting, so deciphering them was particularly difficult. Counsel also undertook tedious but very helpful work in preparing the Meds Spreadsheet. In addition, Plaintiff's expert, Dr. Carinci, and his report were impressive. Most importantly, Ms. Agnew was a tireless advocate for Mr. Medina. She communicated frequently with DOCCS medical personnel and DOCCS counsel in service of her client. Such advocacy is to be commended and compensated.

The above shall constitute the Court's findings of fact and conclusions of law.

IV. CONCLUSION

Plaintiff Medina's Civil Contempt Motion [dkt. no. 284] against DOCCS personnel for failing to comply with the effective pain treatment portion of the 2017 Order is granted. The portions of the Civil Contempt Motion addressed to tinted windows is denied, and the portion addressed to CCTV use was withdrawn.(See Sept. 17, 2018 Tr. at 6:14-18.)

In order to remedy the non-compliance, Mr. Medina will be awarded compensation for the pain and other discomfort he suffered as a result of the non-compliance. His attorney will also be awarded the fees and costs of prosecuting the Civil Contempt Motion.

Counsel shall confer as to the amount of damages to be awarded for pain and suffering and the amount of attorney's fees and costs to be awarded and shall inform the Court by letter no later than February 27, 2019 as to the status of such discussions.

SO ORDERED.