Vializ v. Dzurenda et al

Filing 19

PRISCS- RULING AND ORDER granting in part and denying in part 5 and 6 Motions to resubmit. Signed by Judge Robert N. Chatigny on 11/8/2011. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID VIALIZ,
Plaintiff,

:
:
:
:
:
:
:

v.
JAMES DZURENDA, et al.,
Defendants.

CASE NO. 3:11-cv-59(RNC)

RULING AND ORDER
The plaintiff, a Connecticut inmate proceeding pro se,
brings this action under 42 U.S.C. § 1983.
complaint, he named eight defendants:

In his original

James Dzurenda, Michael

Lajoie, Captain Regan, C.S. Mudano, Counselor Moss, Medical
Supervisor Furey, Medical Supervisor Dolan and Medical Supervisor
Wollenhaupt.

The complaint alleged that the plaintiff has a

medical need for special footwear due to a painful condition and
that his requests for special footwear had been ignored as had
his complaints of pain.

Pursuant to 28 U.S.C. § 1915A, the Court

reviewed the complaint and dismissed all claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., plus
all other claims against the named defendants except Medical
Supervisor Dolan.

See Doc. 4.

Since then, the plaintiff has filed two motions to resubmit
defendants and two amended complaints.

In the motions to

resubmit defendants, he seeks to add factual allegations against
some of the defendants named in the original complaint and also
seeks to add other persons as defendants.

In the second amended

complaint, he names eighteen defendants and adds claims unrelated

to his foot condition and need for special shoes.
Leave to amend is granted when justice so requires.
Civ. P. 15(a)(2).

Fed. R.

Leave to amend should be denied when the

amendment fails to state a claim.

Hunt v. Alliance North Am.

Gov’t Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998).
Leave to amend should also be denied if the amendment seeks to
add a new defendant in violation of the limits on permissive
joinder of defendants.

Under Rule 20(a)(2) of the Federal Rules

of Civil Procedure, permissive joinder of defendants is allowed
only if a “right to relief is asserted against them jointly,
severally or in the alternative arising out of the same
transaction, occurrence, or series of transactions” and “a
question of law or fact common to all [of them] will arise in the
action.”

Fed. R. Civ. P. 20(a)(2).

The original complaint in this action concerns the
plaintiff’s medical need for special footwear.

The allegations

in the second amended complaint against defendants Mundano, David
Gregory, Lucy, Tugie and Chris Chomroi relate to acts or
omissions that allegedly interfered with the plaintiff’s access
to courts.

These allegations are unrelated to the allegations in

the original complaint.

The claims against Lisa Bisset, Patty

and Gloria Jones relate to providing the plaintiff with
medication and copies of medical records but these claims also
are unrelated to the denial of medical care for foot problems
alleged in the original complaint.
2

Permitting the plaintiff to

amend the complaint to add these unrelated claims against new
defendants would not comport with the requirements of Rule
20(a)(2).

Accordingly, the plaintiff will not be permitted to

amend the complaint to include the claims against these
defendants in this action.

The plaintiff can assert these claims

in separate actions if he chooses.

See Williams v. Kurk, No. C

10-02146 JF(PR), 2011 WL 4436235, at *1 (N.D. Cal. Sept. 23,
2011) (dismissing without prejudice misjoined causes of action
raised in amended complaint).

See also

Gillion v. Federal

Bureau of Prisons, 424 Fed. Appx. 722, 725-26 (10th Cir. 2011)
(prisoner’s attempt to join unrelated claims against numerous
officials properly refused); Nasious v. City and County of
Denver-Denver Sheriff’s Dep’t, 415 Fed. Appx. 877, 881 (10th Cir.
2011) (affirming determination that plaintiff failed to comply
with Rule 20(a)(2) when he included in complaint three separate
and unrelated sets of claims against three separate and unrelated
sets of defendants, but noting that magistrate judge should have
dismissed or severed improperly joined parties instead of
directing plaintiff to choose which set of claims would proceed);
Wilson v. Bruce, 400 Fed. Appx. 106, 108 (7th Cir. 2010)
(district court properly ruled that prisoner’s complaint
misjoined claims because no single transaction or occurrence
connected all the named defendants).
The allegations against the remaining defendants relate in
some manner to the plaintiff’s medical needs arising from the
3

condition of his feet.

The court reviews these allegations under

28 U.S.C. § 1915A to determine whether the plaintiff has stated
cognizable claims against any of the remaining newly added or
restored defendants.
In reviewing a pro se complaint, the court must assume the
truth of the allegations, and interpret them liberally to “raise
the strongest arguments [they] suggest[].”
F.3d 636, 639 (2d Cir. 2007).

Abbas v. Dixon, 480

Though detailed allegations are

not required, the complaint must include sufficient facts to
afford the defendants fair notice of the claims and the grounds
upon which they are based and to demonstrate a right to relief.
Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
Conclusory allegations are not sufficient.

Ashcroft v. Iqbal,

___ U.S. ___, 129 S. Ct. 1937, 1949 (2009).

The plaintiff must

plead “enough facts to state a claim to relief that is plausible
on its face.”

Twombly, 550 U.S. at 570.

But “‘[a] document

filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.’”

Boykin v.

KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
The plaintiff has now named as a defendant Dr. Helen Macuil,
a podiatrist mentioned in the original complaint.
Nancy Hill, a nurse.

He also names

The allegations against Dr. Macuil were

included in the original complaint and the allegations against
4

Nurse Hill relate to the plaintiff’s foot problems.

The claims

against these persons are sufficiently related to the claims in
the original complaint to be pursued in one action.
The plaintiff also names Dr. Fedus, another podiatrist, who
allegedly was involved in treating plaintiff’s painful feet at
Willard Correctional Institution.

Plaintiff alleges that Dr.

Fedus told him to request special shoes from the lieutenant in
charge of his housing unit.

Am. Compl., Doc. 14, ¶¶ 92, 95.

Plaintiff seems to be trying to sue Dr. Fedus for deliberate
indifference to a serious medical need.

But he alleges no

harmful acts or omissions by Dr. Fedus evincing deliberate
indifference.

See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976)

(to establish deliberate indifference to a serious medical need,
plaintiff must provide evidence of sufficiently harmful acts or
omissions and intent to either deny or unreasonably delay access
to needed medical care or the wanton infliction of unnecessary
pain by prison personnel).

Thus, he fails to state a plausible

claim against Dr. Fedus.
Finally, the plaintiff attempts to restore defendants
Dzurenda, Lajoie, Furey and Wollenhaupt and add defendants
Whidden and Kendrick.

These are all suprevisory officials.

The

plaintiff alleges generally that these defendants created or
condoned the policy of denying his request for special shoes or
permitting inmates to wear ill-fitting shoes.
and 30, ¶ 96.
5

Am. Compl. at 7

Supervisors are not automatically liable under section 1983
when subordinates commit a constitutional tort.

To establish a

claim for supervisory liability, the plaintiff must demonstrate
one or more of the following criteria: (1) the defendant actually
and directly participated in the alleged acts; (2) the defendant
failed to remedy a wrong after being informed of the wrong
through a report or appeal; (3) the defendant created or approved
an unconstitutional policy or custom or allowed such a policy or
custom to continue; (4) the defendant was grossly negligent in
his supervision of the correctional officers who committed the
constitutional violation; or (5) the defendant was deliberately
indifferent to the plaintiff’s rights by failing to act in
response to information that unconstitutional acts were
occurring.
2003).

See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.

The plaintiff also must demonstrate a causal link between

the supervisor’s wrongful acts or omissions and the plaintiff’s
injury.

See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).1

Here, the plaintiff has alleged no facts suggesting that
defendants Dzurenda, Lajoie, Whidden, Kendrick, Wollenhaupt and
Furey were involved in or even aware of the incidents alleged.

1

In Iqbal the Supreme Court found that a supervisor can be
held liable only “through the official’s own individual actions.”
129 S. Ct. at 1948. This decision arguably casts doubt on the
continued viability of some of the categories for supervisory
liability. The Second Circuit has not revisited the criteria for
supervisory liability following Iqbal. See Gonzalez v. Sarreck,
No. 08 Civ. 3661, 2011 WL 5051341,at *14 n.3 (S.D.N.Y. Oct. 24,
2011).
6

Nor has the plaintiff alleged facts showing the existence of a
department-wide policy prohibiting an inmate from obtaining
special shoes even though they are medically required.

As a

result, the plaintiff has failed to state a plausible claim
against defendants Dzurenda, Lajoie, Whidden, Kendrick,
Wollenhaupt and Furey.
Accordingly,
ORDERS
In accordance with the foregoing, it is hereby ordered:
(1) The plaintiff’s motions to re-submit defendants [Docs.
5, 6] are GRANTED to the extent that the plaintiff seeks to add
Dr. Macuil and Nurse Hill as defendants and DENIED in all other
respects.
(2) The second amended complaint will be served on
Dr. Macuil and Nurse Hill only.
(3)

The case will proceed against defendants Dolan, Macuil

and Hill only.
(4)

All claims in the second amended complaint against

defendants Bisset, Mudano, Gregory, Lucy, Tugie, Patty, Jones and
Chomroi are dismissed without prejudice in accordance with the
limits on permissive joinder of defendants under Rule 20(a)(2).
(5)

All claims against defendants Fedus, Dzurenda, Lajoie,

Whidden, Kendrick, Wollenhaupt and Furey are dismissed pursuant
to 28 U.S.C. § 1915A.
(6)

The Pro Se Prisoner Litigation Office will verify the
7

current work addresses for Dr. Macuil and Nurse Hill with the
Department of Correction Office of Legal Affairs, mail waiver of
service of process request packets containing the second amended
complaint to each defendant in her individual capacity within
fourteen (14) days of this Order, and report to the court on the
status of those waiver requests on the thirty-fifth (35) day
after mailing.

If either defendant fails to return the waiver

request, the Pro Se Prisoner Litigation Office will make
arrangements for in-person service by the U.S. Marshals Service
on the defendant in her individual capacity and the defendant
will be required to pay the costs of such service in accordance
with Federal Rule of Civil Procedure 4(d).
(7)

The Pro Se Prisoner Litigation Office will send written

notice to the plaintiff of the status of this action, along with
a copy of this Order.
It is so ordered this 8th day of November 2011.

/s/
Robert N. Chatigny
United States District Judge

8