Pierce v. Omprakash

Filing 15

ORDER denying Defendant's 9 Motion to Dismiss. See attached memorandum of decision. The case shall proceed to discovery. Signed by Judge Vanessa L. Bryant on 9/30/2015. (Nadler, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANDREW PIERCE,
Plaintiff,
v.
OMPRAKASH PILLAI,
Defendant.

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CASE NO. 3:14-cv-1477 (VLB)
September 30, 2015

MEMORANDUM OF DECISION DENYING
DEFENDANT’S MOTION TO DISMISS [Dkt. #9]
Plaintiff, Andrew Pierce (“Pierce”), incarcerated and proceeding pro se, has
filed this action under 42 U.S.C. § 1983 against defendant Dr. Omprakash Pillai
(“Pillai”), alleging deliberate indifference to a serious medical need in connection
with Plaintiff’s exposure to Methicillin-resistant Staphylococcus aureus
(“MRSA”). The Defendant moves to dismiss on the grounds that the Complaint is
time-barred and fails to state a claim. For the reasons that follow, the
Defendant’s motion to dismiss is DENIED.
I.

Factual Background
Plaintiff alleges that, on September 5, 2011, while he was a pretrial

detainee, a nurse accidently inserted a needle into his arm incorrectly
during his dialysis treatment, causing a bubble to form. [Dkt. #1, Compl. at
¶ 1]. The next day, September 6, 2011, the bubble ruptured, and Plaintiff
was taken to the University of Connecticut Health Center (“UConn Health”),
where a doctor repaired the rupture and prescribed antibiotics. [Id. at ¶¶ 23]. Specifically, the doctor explained that the antibiotics were intended “to
prevent an infection.” [Id. at ¶ 4]. Although the doctor sent the

prescription to the prison’s medical department, Plaintiff did not receive
antibiotics upon his return. [Id. at ¶ 5]. Over the following two weeks,
Plaintiff submitted request slips to the prison infirmary inquiring when he
would receive the antibiotics. [Id.] During this time, Plaintiff also sent two
request slips to Defendant, informing him that a doctor at UConn Health
had prescribed him antibiotics and inquiring as to when he would receive
them. [Id. at ¶ 6]. Plaintiff received no response. [Id.]
On September 14, 2011, a nurse at the prison infirmary took a blood
sample from Plaintiff, and two days later, on September 16, 2011, she
determined that the sample tested positive for an MRSA infection. [Id. at ¶
7]. Defendant did not inform Plaintiff of the test results. [Id.] Plaintiff’s
medical records identify Defendant as Plaintiff’s attending physician, and
indicate that the Defendant received and reviewed at least some of his
medical records. [Id. at 13 (Plaintiff’s post-surgery discharge document
from UConn Health noting his prescription for “antibiotics” initialed and
stamped by defendant); 16 (October 7, 2011 blood test results displaying a
positive test for MRSA and listing Defendant as Plaintiff’s “ATTENDING
PHYSICIAN”)].
Four days later, on September 20, 2011, Plaintiff filed a grievance
against Defendant based on his not receiving “the antibiotics prescribed by
the doctor at UConn Health.” [Id. at ¶ 8].
On September 22, 2011, Plaintiff received medication to treat the
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MRSA infection. [Id. at ¶ 9]. Plaintiff does not allege that he knew the
purpose of the medication that he received at the time it was administered.
Instead, Plaintiff contends that he “had MRSA for 40 days, walking around
the institution . . . and did not know [he] had MRSA.” [Id. at ¶ 10].
Plaintiff’s condition worsened after he received the first medication,
and a second medication also did not work. [Id.] On October 26, 2011,
Plaintiff was taken to the University of Connecticut Medical Center and was
hospitalized in isolation for one month. [Id. at ¶ 11]. It was at the Medical
Center when a “contagious disease specialist” informed him “that [he] had
contracted the MRSA infection.” [Id.]. Plaintiff underwent surgery to
remove the infected tissue in his upper arm, which resulted in a “gruesome
scar” and “numbness” in his arm that presently impairs his physical
activity. [Id. at ¶ 12]. Since that time, Plaintiff has experienced difficulty
“obtaining [his] medical records” and claims that they “are being
deliberately withheld.” [Id. at ¶ 15]. Nevertheless, Plaintiff filed his
Complaint on October 6, 2014. [Id. at 1].
II.

Standard of Review
When considering a motion to dismiss filed pursuant to Rule 12(b)(6), the

court accepts as true all factual allegations in the complaint and draws inferences
from these allegations in the light most favorable to the plaintiff. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper Corp., 343 F.3d
140, 143 (2d Cir. 2003). The court considers not whether the plaintiff ultimately
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will prevail, but whether he has stated a claim upon which relief may be granted
so that he should be entitled to offer evidence to support his claim. See York v.
Association of Bar of City of New York, 286 F.3d 122, 125 (2d Cir. 2002), cert.
denied, 537 U.S. 1089 (2002).
In reviewing the complaint in response to a motion to dismiss, the court
applies “a ‘plausibility standard,’ which is guided by two working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the requirement that the court
accept the allegations in the complaint as true “‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements . . . .’” Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Second, to survive a motion to
dismiss, the complaint must state a plausible claim for relief. Determining
whether the complaint states a plausible claim for relief is “‘a context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.’” Id. (quoting Iqbal, 556 U.S. at 679). Even under this standard,
however, the court liberally construes a pro se complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boykin v. KeyCorp, 521 F.3d 202, 21314, 216 (2d Cir. 2008).
III.

Application
Defendant first contends that Plaintiff’s claims are time-barred. See [Dkt.

#9-1, Def.’s Memo. in Supp. of Mot. to Dismiss at 4-6]. Construing the allegations
in the Complaint in a light most favorable to Plaintiff, the Court, at the present
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stage, finds that Defendant is incorrect.
The limitations period for filing a section 1983 action is three years. See
Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994). A section 1983 claim
generally accrues “when the plaintiff knows or has reason to know of the injury
which is the basis of his action.” Covington v. City of New York, 171 F.3d 117,
121 (2d Cir. 1999). Thus, it is “discovery of the injury, not discovery of the other
elements of the claim, [that] starts the clock.” Gonzalez v. Wright, 665 F. Supp.
2d 334, 348-49 (S.D.N.Y. 2009) (citation and quotation omitted).
Here, Defendant is alleged to have committed two acts constituting
deliberate indifference: (i) denying Plaintiff his prescribed antibiotics and (ii)
withholding from Plaintiff the fact that he had contracted MRSA. Plaintiff knew or
should have known about the denial of the antibiotics no later than September 22,
2011, when he filed his grievance against Defendant. However, his knowledge as
to the second act is less clear. While Plaintiff tested positive for MRSA on
September 16, 2011, he pleads that Defendant, his attending physician, did not
disclose this to him, and that this information was kept hidden from him until he
learned about it on October 26, 2011, from an unaffiliated physician. Given
Plaintiff’s allegations that he has limited access to his medical records,
Defendant did receive his records and served as his attending physician, and that
the Defendant did not inform him of his condition, Plaintiff has pled sufficient
“non-conclusory” facts to render his claim timely under the fraudulent
concealment doctrine, which permits for a tolling of the statute of limitations of a
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§ 1983 claim, where a “fraudulent wrong [has] precluded his possible discovery
of the harms that he suffered.” Pinaud, 52 F.3d 1139, 1157-58 (2d Cir. 1995).
Thus, Plaintiff’s claim accrued on October 26, 2011, when he was finally informed
of his condition by a third-party physician. See Keating v. Carey, 706 F.2d 377,
382 (2d. Cir. 1983) (when “a defendant fraudulently conceals the wrong, the time
[limit of the statute of limitations] does not begin running until the plaintiff
discovers, or by the exercise of reasonable diligence should have discovered, the
cause of action”). Since Plaintiff filed his Complaint on October 6, 2014,
Defendant’s timeliness argument fails.
Alternatively, Defendant asserts that the Complaint fails to state a claim,
because it is “[m]issing [] any allegations that [Defendant] knew of a substantial
risk that the plaintiff would suffer serious harm as a result of his failure to
immediately prescribe antibiotics.” [Dkt. #9-1, Def.’s Memo. in Supp. of Mot. to
Dismiss at 8-9].1 The Court disagrees.
The Complaint alleges that Defendant knew that the antibiotics had been
prescribed by “the doctor at UConn [Health]” who performed major surgery on
the Plaintiff, and that they were prescribed in order “to prevent an infection.”
[Dkt. #1, Compl. at ¶¶ 6, 14]. In addition, the documents Plaintiff attached to his
Complaint list Defendant as Plaintiff’s attending physician and strongly suggest
Defendant knew Plaintiff had contracted MRSA weeks before Plaintiff learned of

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Defendant does not contest, for the purposes of his motion, that the
Complaint “alleges a sufficiently serious medical condition.” [Dkt. #9-1,
Def.’s Memo. in Supp. of Mot. to Dismiss at 7].
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it. See [id. at 16]. These facts, coupled with Plaintiff’s contention that he was not
made aware of the nature of his infection until much later, by a doctor at a
separate medical facility, permit for the reasonable inference that, at the time he
denied Plaintiff the antibiotics, Defendant knew that the denial raised a
substantial risk of serious harm. See Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d
Cir. 1998).2 They also serve to plainly distinguish the allegations here, from the
ones in Arnold v. Westchester Cnty. Corr. Facility, No. 10 Civ. 1249 (PAC) (RLE),
2011 WL 3501897 (S.D.N.Y. Jul. 18, 2011), the lone case Defendant cites in
support of his position. In Arnold, the plaintiff himself requested and was refused
antibiotics, when he came to the defendant complaining of irritation in his upper
lip. Id. at *1. The seriousness of that plaintiff’s medical condition and need for
antibiotics was discovered only after the defendant refused the plaintiff’s request.
Id. at *4. Here, Plaintiff’s need for preventative antibiotics following major surgery
was far more obvious to the Defendant, as were the attendant risks in failing to
provide Plaintiff with the prescribed medication.

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Indeed, the allegations permit for the inference that Defendant purposely
kept Plaintiff in the dark about his diagnosis in hopes of treating him with
proper medication without ever having to disclose to Plaintiff the likely
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IV.

Conclusion
The Defendant’s motion to dismiss is DENIED.
SO ORDERED at Hartford, Connecticut, this 30th day of September 2015.

/s/
Vanessa L. Bryant
United States District Judge

cause of his condition, and thus, the Defendant’s role in bringing it about.
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