Wortham v. Plourde et al

Filing 5

PRISCS-INITIAL REVIEW ORDER, Answer deadline updated for Omprakash Pillai to 2/15/2013., ( Discovery due by 7/5/2013, Dispositive Motions due by 8/5/2013), Barbara LaFrance, Steven J. Plourde, Ricardo Ruiz, Timothy Silvis, Jane Doe and John Doe terminated.. Signed by Judge Dominic J. Squatrito on 12/5/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TERRANCE WORTHAM,
Plaintiff,
v.
STEVEN J. PLOURDE, et al.,
Defendants.

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PRISONER
CASE NO. 3:12-cv-1515(DJS)

INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at Osborn Correctional
Institution in Somers, Connecticut, has filed a complaint pro se
under 42 U.S.C. § 1983 (2000).

The plaintiff names as defendants

Steven J. Plourde, Barbara LaFrance, Timothy Silvis, Omprakash
Pillai, Ricardo Ruiz, John Doe and Jane Doe.
Under 28 U.S.C. § 1915A (2000), the court must review
prisoner civil complaints and dismiss any portion of the
complaint that is frivolous or malicious, that fails to state a
claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief.

Id.

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

Although 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(2007).
allegations are not sufficient.
678 (2009).

Ashcroft v. Iqbal, 556 U.S. 662,

The plaintiff must plead “enough facts to state a

claim to relief that is plausible on its face.”
U.S. at 570.

Conclusory

Twombly, 550

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 asserts four claims.

First he reasserts a qui

tam claim under the federal False Claims Act.

He contends that

IRS forms 1099, issued to him for years 2004-2007, listed him as
self-employed, thereby avoiding payment of payroll taxes on his
wages.

The plaintiff contends that defendant Plourde failed to

submit required forms to support that designation.
The False Claims Act “permits private parties to bring suit
on behalf of the Government against persons who knowingly present
false claims for payment to an officer or employee of the Federal
Government.”

Woods v. Empire Health Choice, Inc., 574 F.3d 92,

98 (2d Cir. 2009).

In Wortham v. Lantz, 3:10cv1127(DJS), the

court dismissed this claim because the plaintiff failed to allege
any facts suggesting that a false claim for payment was presented
to a federal officer or employee.
correct the deficiency.

The reasserted claim does not

This claim is dismissed with prejudice.

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Second, the plaintiff is reasserting a previously dismissed
claim that in August 2009 his leukemia medication was not
automatically refilled, causing him to be without the medication
for two weeks.

He attributed the failure to reorder to

defendants Silvis and LaFrance.
In the prior action, the court dismissed this claim because
the plaintiff failed to allege facts showing that the denial of
medication for two weeks constituted a serious medical need.

The

plaintiff now states that the denial of medication could have
resulted in his leukemia becoming resistant to the medication and
caused him worry and stress.

To constitute a serious medical

need, the condition must be one that may produce death,
degeneration or extreme pain.
553 (2d Cir. 1996).

Hathaway v. Coughlin, 99 F.3d 550,

The plaintiff’s added allegations do not

demonstrate that he suffered a serious medical need.
Accordingly, ths claim is dismissed with prejudice.

In addition,

the court notes that the incident occurred in August 2009 and is
barred by the three-year statute of limitations for filing a
section 1983 claim.
Third, the plaintiff is reasserting a claim previously
dismissed as a disagreement over treatment.

He alleges that in

August 2009 he injured his right knee playing basketball.
Although he was treated and given numerous x-rays, he was not
given an MRI.

In December 2009, during a follow-up visit for

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surgery to his left knee, the surgeon requested an MRI of the
right knee.

The Utilization Review Committee denied the request

for an MRI and sought additional objective data.
Pillai examined the plaintiff.

Defendant

A second request for an MRI was

denied because the plaintiff was doing light weight training to
rehabilitate his left knee.
denied.

Subsequent requests also were

In June 2012 defendant Ruiz, on behalf of the

Utilization Review Committee, denied a request for an MRI.

That

decision was overturned on appeal and the MRI was performed.

The

plaintiff was scheduled for surgery to repair a torn ligament.
Deliberate indifference by prison officials to a prisoner’s
serious medical need constitutes cruel and unusual punishment in
violation of the Eighth Amendment.
97, 104 (1976).

Estelle v. Gamble, 429 U.S.

To state such a claim, the plaintiff must allege

facts demonstrating 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.

Id. at 104-06.

Because mere negligence will not support a section 1983
claim, not all lapses in prison medical care constitute a
constitutional violation.
(2d Cir. 2003).

Smith v. Carpenter, 316 F.3d 178, 184

In addition, inmates are not entitled to the

medical treatment of their choice.
F.2d 207, 215 (2d Cir. 1986).

See Dean v. Coughlin, 804

Mere disagreement with prison

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officials about what constitutes appropriate care does not state
a claim cognizable under the Eighth Amendment.

“So long as the

treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
Amendment violation.”
Cir. 1998).

Chance v. Armstrong, 143 F.3d 698, 703 (2d

The conduct complained of must “shock[] the

conscience” or constitute a “barbarous act.”

McCloud v. Delaney,

677 F. Supp. 230, 232 (S.D.N.Y. 1988)(internal quotation marks
omitted).

In addition, the fact that a prison official did not

alleviate a significant risk that he should have but did not
perceive does not constitute deliberate indifference.

See Farmer

v. Brennan, 511 U.S. 825, 838 (1994).
There are both subjective and objective components to the
deliberate indifference standard.

Hathaway v. Coughlin, 37 F.3d

63, 66 (2d Cir. 1994). Objectively, the alleged deprivation must
be “sufficiently serious.”

Wilson v. Seiter, 501 U.S. 294, 298

(1991). The condition must be one that may produce death,
degeneration or extreme pain.
553 (2d Cir. 1996).

Hathaway v. Coughlin, 99 F.3d 550,

Subjectively, the defendant must have been

actually aware of a substantial risk that the inmate would suffer
serious harm as a result of his actions or inactions.

Salahuddin

v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).
The plaintiff now alleges that he suffers from a torn
ligament in his right knee and must undergo surgery.

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For the

purposes of this order, the court assumes that the plaintiff’s
medical need is serious.

In the prior action, the court

dismissed this claim as a disagreement over treatment that did
not rise to the level of deliberate indifference to a serious
medical need.

The plaintiff alleges that defendant Pillai

recommended the MRI to the Utilization Review Committee.

Thus,

defendant Pillai was not deliberately indifferent to the
plaintiff’s medical need and there is no basis for a claim
against him.
Defendant Ruiz denied the MRI request.
denial was overturned on appeal.

Two days later, the

Clearly, there was a

disagreement over whether the treatment was required.

To

establish deliberate indifference by defendant Ruiz, however, the
plaintiff must allege facts showing that defendant Ruiz was
actually aware of a substantial risk that the plaintiff would
suffer serious harm if he denied the MRI request.

The facts

alleged demonstrate that defendant Ruiz should have realized that
serious harm could result, not that he knew.

Although such

allegations might state a claim of medical malpractice, they do
not rise to the level of deliberate indifference.

See Farmer,

511 U.S. at 837-38; Johnson v. Department of Corrections, No. 92
Civ. 7716 (MGC), 1995 WL 121295, at *3 (S.D.N.Y. Mar. 21, 1995)
(“the Eighth Amendment does not mandate the use of any particular
medical technology”; granting summary judgment for defendants on

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claim that prison doctor’s failure to order MRI constitutes
deliberate indifference).

This claim is dismissed with

prejudice.
Fourth, the plaintiff alleges that following surgery on his
left knee, the surgeon recommended physical therapy.

The

plaintiff did not receive physical therapy and alleges that, as a
result, he did not regain full strength and range of motion.

The

plaintiff attributed the lack of physical therapy to defendant
Pillai.

The case will proceed on this claim.
ORDERS

In accordance with the foregoing analysis, the court enters
the following orders:
(1)

All claims contained in the first three counts of the

complaint against defendants Steven J. Plourde, Barbara LaFrance,
Timothy Silvis, Omprakash Pillai, Ricardo Ruiz, John Doe and Jane
Doe, claims which were previously brought and dismissed, are
DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A.

The case

will proceed only on the claim in the fourth count of the
complaint for denial of prescribed physical therapy by defendant
Pillai.
(2)

The Pro Se Prisoner Litigation Office shall verify the

current work address of defendant Pillai with the Office of Legal
Affairs and mail a waiver of service of process request packet to
him at the confirmed address within fourteen (14) days of this
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Order.

The Pro Se Prisoner Litigation Office shall report to the

court on the status of that waiver request on the thirty-fifth
(35) day after mailing.

If defendant Pillai fails to return the

waiver request, the Pro Se Prisoner Litigation Office shall make
arrangements for in-person service by the U.S. Marshals Service
on the defendant in his individual capacity and the defendant
shall be required to pay the costs of such service in accordance
with Federal Rule of Civil Procedure 4(d).
(3)

The Pro Se Prisoner Litigation Office shall send

written notice to the plaintiff of the status of this action,
along with a copy of this Order.
(4)

The Pro Se Prisoner Litigation Office shall send a

courtesy copy of the Complaint and this Ruling and Order to the
Connecticut Attorney General and the Department of Correction
Office of Legal Affairs.
(5)

The defendant shall file his response to the complaint,

either an answer or motion to dismiss, within seventy (70) days
from the date of this order.

If he chooses to file an answer, he

shall admit or deny the allegations and respond to the cognizable
claims.

He also may include any and all additional defenses

permitted by the Federal Rules.
(6)

Discovery, pursuant to Federal Rules of Civil Procedure

26 through 37, shall be completed within seven months (210 days)
from the date of this order.

Discovery requests need not be
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filed with the court.
(7)

All motions for summary judgment shall be filed within

eight months (240 days) from the date of this order.
(8)

Pursuant to Local Civil Rule 7(a), a nonmoving party

must respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed.

If no response is filed, or

the response is not timely, the dispositive motion can be granted
absent objection.
SO ORDERED this 5th day of December 2012, at Hartford,
Connecticut.
_________/s/ DJS_____________
Dominic J. Squatrito
United States District Judge

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