St. Pierre v. Semple et al
Filing
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INITIAL REVIEW ORDER and ORDER denying 9 Motion to Appoint Counsel without prejudice. Discovery due by 6/9/2016; Dispositive Motions due by 7/9/2016. Signed by Judge Victor A. Bolden on 11/9/2015. (Shin, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JON A. ST. PIERRE,
Plaintiff,
v.
WARDEN SEMPLE, ET AL.,
Defendants.
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Case No. 3:14cv1866(VAB)
RULING AND ORDER
Plaintiff, Jon A. St. Pierre, incarcerated and pro se, has filed a civil rights
complaint against Wardens Scott Semple, Scott Erfe and Chapdelaine. Health
Administrator Mary Maurto and Lightner, Nurses Tawana, Heidi, Kim Martin and Jane
Doe, Drs. Fedus and Berkawitz, Vlnayak M. Salhe, John Doe #1 and John Doe #2 and
the University of Connecticut Medical Center. Before the Court is Plaintiff’s complaint
and motion for appointment of counsel. For the reasons set forth below, the complaint
is dismissed in part and the motion for appointment of counsel is denied.
I.
Complaint [Doc. No. 1]
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil
complaints against governmental actors and “dismiss . . . any portion of [a] complaint
[that] is frivolous, malicious, or 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.
This requirement applies both where the inmate has paid the filing fee and where he is
proceeding in forma pauperis. See Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999)
(per curiam). Rule 8 of the Federal Rules of Civil Procedure requires that a complaint
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contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citations omitted). A complaint that includes only “‘labels and conclusions,’
‘a formulaic recitation of the elements of a cause of action’ or ‘naked assertion[s]’ devoid
of ‘further factual enhancement,’ ” does not meet the facial plausibility standard. Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts
still have an obligation to interpret “a pro se complaint liberally,” the complaint must
include sufficient factual allegations to meet the standard of facial plausibility. See
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).
At some point during the month of March 2012, at Garner Correctional Institution,
a foot locker door fell on Plaintiff’s left foot and crushed his great left toe. After
undergoing x-rays, a doctor informed Plaintiff that he had suffered a fracture to his foot
and toe. A week later, Dr. Berkawitz, who is a podiatrist, examined Plaintiff and
determined that Plaintiff’s left foot and toe were not fractured. He allegedly explained
that surgery would not be necessary because Plaintiff’s injuries would heal on their own.
He allegedly noticed that Plaintiff’s great left toe looked deformed, but insisted the
condition would correct itself without surgery.
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The injuries allegedly did not heal on their own. Plaintiff subsequently filed a
habeas petition in state court seeking surgery to correct the injuries to his left foot. A
judge granted the petition and issued an order that Plaintiff undergo surgery and that
the Department of Correction provide him with a pass to receive sneakers that would
properly fit his injured foot.
At some point in April 2013, prison officials transferred Plaintiff to Corrigan
Correctional Institution. On April 28, 2013, Plaintiff suffered another injury to his left
foot. Medical personnel noted that Plaintiff had been scheduled for surgery to repair the
foot injury suffered by Plaintiff in March 2012. Medical staff gave Plaintiff an ice pack to
apply to his foot.
On September 5, 2013, at the University of Connecticut Medical Center, John
Doe #1 operated on Plaintiff’s left foot. After his return to the Department of Correction,
Plaintiff discovered that John Doe #1 had completed only part of the surgical procedure.
In addition, John Doe #1 allegedly had removed the wrong bone from Plaintiff’s foot
which caused Plaintiff’s condition to become worse. Plaintiff allegedly experienced
pain, had difficulty sleeping and could not perform daily activities. He allegedly could
not walk and needed crutches to get around. Plaintiff claims Nurse Tawana allegedly
refused to grant his requests for medical treatment in connection with the symptoms he
experienced after the surgery.
Beginning in October 2013, Nurse Martin allegedly began to harass and retaliate
against Plaintiff for filing a grievance against her in September 2013. She allegedly
dropped his food tray on the floor and threatened to make his life difficult if he did not
stop filing grievances. He filed a second grievance against Nurse Martin in October
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2013. Nurse Martin allegedly continued to harass and retaliate against Plaintiff until he
transferred back to MacDougall.
On May 1, 2014, prison officials transferred Plaintiff to the University of
Connecticut Medical Center for a second surgical procedure to correct the result of the
first surgery. John Doe #2 performed the second surgery, which involved cutting
tendons in Plaintiff’s left foot. Plaintiff claims that the surgeon did not correct the
surgical mistakes made by the first surgeon. Nor did the surgeon repair the injuries to
his left foot. Following the surgery, Plaintiff allegedly experienced pain in his foot and
was unable to walk properly. Since the surgery, Plaintiff allegedly has been unable to
move around without using crutches.
After his second surgery in May 2014, Plaintiff returned to MacDougall
Correctional Institution and Nurse Heidi allegedly began to retaliate against him for filing
grievances against medical staff. She allegedly refused to provide him with pain
medication that had been prescribed by physicians/surgeons at the University of
Connecticut Medical Center. In response to a grievance filed by Plaintiff against Nurse
Heidi, a physician re-prescribed the pain medication. Two days later, Nurse Heidi again
allegedly discontinued Plaintiff’s prescribed medication and forced Plaintiff to take
Motrin instead. Plaintiff filed another grievance against Nurse Heidi. A physician
allegedly apologized for Nurse Heidi’s conduct and re-prescribed medication for
Plaintiff’s pain.
On May 12, 2014, Nurse Heidi allegedly spoke with Plaintiff and asked him to
drop the grievances against her and the medical department. When Plaintiff said he
would not withdraw his grievances, Nurse Heidi allegedly threatened to discontinue his
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pain medication. She then gave Plaintiff a shot of medication that caused him to break
out in hives. Plaintiff’s additional grievances about Nurse Heidi’s conduct went
unanswered.
On July 24, 2014, Plaintiff allegedly asked Dr. Berkawitz for a pass to enable him
to purchase sneakers that would fit his injured foot. He allegedly explained that a
podiatrist at the University of Connecticut Medical Center had ordered the Department
of Correction to issue Plaintiff a sneaker pass. Dr. Berkowitz allegedly denied Plaintiff a
sneaker pass and instead tried to fit Plaintiff with a diabetic shoe. The shoe was too
tight and caused Plaintiff pain.
On July 25, 2014, a nurse allegedly dropped a package containing Plaintiff’s
medication through the slot in his cell door. After taking the medication, Plaintiff
allegedly started to feel strange. Plaintiff’s cellmate allegedly noticed that the package
of medication had Plaintiff’s name on it but a different inmate number. Nurse Jane Doe
#1 allegedly came to Plaintiff’s cell and Plaintiff explained that he had taken another
inmate’s medication by mistake. Nurse Doe allegedly just waived Plaintiff off. Later that
morning, Plaintiff was seen in the medical department. The medical staff allegedly did
not provide him with treatment for his symptoms.
Plaintiff asserts claims under 42 U.S.C. §§ 1983, 1985, and 1986. The Court
addresses the section 1983 first.
A.
Section 1983 Claims
Plaintiff claims that the defendants were deliberately indifferent to his medical
needs and retaliated against him for exercising his First Amendment rights.
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1.
University of Connecticut Medical Center
As a preliminary matter, the University of Connecticut Medical Center is not a
person subject to suit under 42 U.S.C. § 1983. To state a claim under section 1983, the
plaintiff must allege facts showing that the defendant, a person acting under color of
state, law deprived him of a federally protected right. See Lugar v. Edmondson Oil Co.,
457 U.S. 922, 930 (1982). A state agency is not a person within the meaning of section
1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (state and
state agencies not persons within meaning of 42 U.S.C. § 1983); Gaby v. Board of
Trustees of Community Technical Colleges, 348 F.3d 62, 63 (2d Cir. 2003) (per curiam)
(noting decisions holding that state universities and their boards of trustees are not
persons within the meaning of section 1983); Stewart v. John Dempsey Hospital, No.
3:03-cv-1703, 2004 WL 78145, at *2, 2004 U.S. Dist. LEXIS 429, at *6 (D. Conn. Jan. 9,
2004) (holding that John Dempsey Hospital University of Connecticut Health Center is
not a person within the meaning of section 1983). Thus, the claims against defendant
University of Connecticut Medical Center are dismissed as lacking an arguable legal
basis. See 28 U.S.C. § 1915A(b)(1).
2.
Official Capacity Claims for Money Damages
Plaintiff seeks injunctive and declaratory relief and monetary damages. To the
extent Plaintiff seeks damages against the defendants in their official capacities, the
claims are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159
(1985); Quern v. Jordan, 440 U.S. 332, 342 (1979). All such claims are dismissed
pursuant to 28 U.S.C. § 1915A(b)(2).
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3.
Semple, Erfe, Chapdelaine, Maurto, Lightner, Fedus and Salhe
Plaintiff does not mention Wardens Semple, Erfe, or Chapdelaine, Health
Administrators Maurto or Lightner, or Drs. Fedus or Salhe, other than in the caption of
the complaint and the description of the parties. As such, he has not alleged that these
defendants have violated his constitutionally or federally protected rights. See Gibson
v. Brown, No. 12-cv-622, 2012 WL 1744845, at *6, 2012 U.S. Dist. LEXIS 68669, at
*17-18 (E.D.N.Y. May 16, 2012) (dismissing complaint against two named defendants
where complaint “fails to set forth any factual allegations against these individuals”); see
also Iqbal, 556 U.S. at 678 (complaint does not suffice “if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement’”) (quoting Twombly, 550 U.S. at 557); cf. Wright
v. Smith, 21 F.3d 496, 501 (2d Cir.1991) (“It is well settled in this Circuit that ‘personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’”). The claims against defendants Semple, Erfe,
Chapdelaine, Maurto, Lightner, Dr. Fedus and Dr. Salhe are dismissed pursuant to 28
U.S.C. § 1915A(b)(1).
4.
Retaliation Claims
Plaintiff describes various situations which he alleges involve retaliatory conduct
on the part of some defendants. Because claims of retaliation are easily fabricated, the
courts consider such claims with skepticism and require that they be supported by
specific facts; conclusory statements are not sufficient. See Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir. 2003). To state a retaliation claim, Plaintiff must show that his
conduct or speech was protected by the Constitution or federal law, prison officials took
adverse action against him and the protected conduct or speech was a substantial or
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motivating factor in the alleged retaliatory or adverse action by prison officials. See Gill
v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citations and internal quotation marks
omitted).
Plaintiff alleges that defendant Martin engaged in adverse action against him
within a month of his having filed a grievance against her with the Board of Nursing.
She dropped his food tray on the floor and threatened to make his life difficult if he did
not stop submitting grievances. Plaintiff states that after he filed grievances against
medical staff at MacDougall, defendant Heidi refused to continue his prescription for
pain medication after his second surgery, despite a doctor’s order to do so. Plaintiff
filed several grievances against defendant Heidi for failing to provide him with pain
medication. Shortly thereafter, defendant Heidi complained that if Plaintiff did not
withdraw his grievances, she would continue to stop giving Plaintiff his pain medication.
In addition, she administered a medication to Plaintiff that contained an ingredient to
which Plaintiff had a known allergy. The Court concludes that Plaintiff has stated
plausible claims of retaliation against defendants Martin and Heidi. See Gill, 389 F.3d
at 384 (“plaintiff has sufficiently alleged . . . participation in protected activity” the use of
the prison grievance system”); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)
(holding that prison officials are prohibited from retaliating against prisoners who
exercise a right to petition for redress of grievances). The retaliation claims will proceed
against defendants Heidi and Martin.
Plaintiff’s allegations against Dr. Berkawitz regarding his alleged denial of
Plaintiff’s request for a sneaker pass and attempts to prescribe a diabetic shoe for
Plaintiff’s injured foot do not state a claim for retaliation. Plaintiff simply assumes that
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defendant Berkawitz denied his request for a sneaker pass because he had filed
grievances against medical staff. Plaintiff has not plausibly alleged a causal connection
between defendant Berkawitz’s acts and his protected speech. See Dorsey v. Fisher,
468 F. App’x 25, 27 (2d Cir. 2012) (claim that correctional officer filed a false
misbehavior report solely because Plaintiff had filed a grievance against another officer,
without more, was insufficient to show retaliatory intent).
Plaintiff also alleges that defendant Nurse Jane Doe #1 refused to treat him after
he ingested medication that had been prescribed to another inmate in retaliation for
complaints made against medical staff. The general allegation that the conduct of Jane
Doe #1 must have been retaliatory is not supported by any facts. See Flaherty, 713
F.2d at 13 (retaliation claims may not be “in wholly conclusory terms”). Thus, any
retaliation claims against defendants Nurse Jane Doe #1 and Dr. Berkawitz are
dismissed as lacking an arguable legal basis. See 28 U.S.C. § 1915A(b)(1).
5.
Medical Claims
Plaintiff alleges that defendants Heidi, Tawana, Berkawitz and Jane Doe #1
denied him medical treatment for his severely injured left foot and toe and defendants
John Doe #1 and John Doe #2 were deliberately indifferent to his serious injury to his
foot when the operated on his foot. They failed to surgically repair the injuries and in
fact caused further injuries to his foot.
Deliberate indifference by prison officials to a prisoner’s serious medical needs
constitutes cruel and unusual punishment in violation of the Eighth Amendment. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998). There are both subjective and objective components to the deliberate
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indifference standard. Objectively, the alleged deprivation must be “sufficiently serious.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991). The condition must produce death,
degeneration or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). Plaintiff must also allege that, subjectively, the defendant prison official “act[ed]
with a sufficiently culpable state of mind.” Hathaway, 99 F.3d at 553 (citations omitted).
Thus, 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. See Salahuddin, 467
F.3d at 279-80. Because mere negligence will not support a section 1983 claim, not all
lapses in prison medical care constitute a constitutional violation. See Smith v.
Carpenter, Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003). The conduct
complained of must “shock the conscience” or constitute a “barbarous act.” U.S. ex rel.
Hyde v. McGinnis, 429 F.2d 864, 866 (2d Cir. 1970).
Plaintiff claims that when Nurse Jane Doe #2 came to his cell and he informed
her that he had ingested medication that had been prescribed by to another inmate, she
did not take him seriously. Plaintiff concedes that a correctional officer then arranged to
have him escorted to the medical unit. Plaintiff claims that nurses in the medical unit
took his vital signs, but provided no other medical treatment for him. He does not
indicate, other than experiencing “a weird feeling” after taking the medication that had
been prescribed to another inmate, that he suffered any other symptoms or ill effects
from the medication. Thus, Plaintiff has not alleged facts to plausibly meet the objective
prong of the Eighth Amendment standard. See Hathaway v. Coughlin, 99 F.3d at 553
(sufficiently serious medical need requires “a condition of urgency, one that may
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produce death, degeneration, or extreme pain”). The claims of denial of medical
treatment against Nurse Jane Doe #1 are dismissed. See 28 U.S.C. § 1915A(b)(1).
The Court concludes that Plaintiff has stated plausible Eighth Amendment
claims of deliberate indifference to serious medical needs against defendants Heidi,
Tawana, and Berkawitz and John Doe #1 and John Doe #2. The case will proceed as
to these claims as well as the state law claims of negligence and medical malpractice
against defendants Heidi, Tawana, and Berkawitz and John Doe #1 and John Doe #2 in
their individual and official capacities.
B.
Section 1985 and 1986 Claims
Plaintiff claims that the defendants conspired to deny him medical treatment and
to retaliate against him in violation of 42 U.S.C. §§ 1985 and 1986. The first two
subsections of 42 U.S.C. § 1985 clearly are not relevant to this action. Section 1985(1)
prohibits conspiracies to prevent federal officials from performing their duties and
section 1985(2) prohibits conspiracies intending to deter witnesses from participating in
state or federal judicial proceedings. Plaintiff is not a federal official and his claims are
not related to participation of witnesses in judicial proceedings.
In order to state a claim under section 1985(3), plaintiff must allege: (1) the
defendants were part of a conspiracy; (2) the purpose of the conspiracy was to deprive
a person or class of persons of the equal protection of the laws, or the equal privileges
and immunities under the laws; (3) an overt act taken in furtherance of the conspiracy;
and (4) an injury to his person or property, or a deprivation of a right or privilege. See
Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Importantly, Plaintiff must show
that the conspiracy was motivated by a “racial, or perhaps otherwise class-based
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invidiously discriminatory animus.” Id. at 102. Section 1985(3) may not be construed
as a “general federal tort law”; it does not provide a cause of action based on the denial
of due process or other constitutional rights. See id. at 101-02.
Plaintiff asserts no facts to support a claim of conspiracy on the part of the
defendants. Nor does Plaintiff allege that the actions of any defendant were taken
because of his race or other class-based discriminatory animus. Thus, Plaintiff fails to
state a claim cognizable under section 1985(3). The Section 1985 claim is dismissed.
See 28 U.S.C. § 1915A(b)(1).
Section 1986 provides no substantive rights; it provides a remedy for the violation
of section 1985. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 222 n.28 (1970)
(Brennan, J., concurring in part and dissenting in part). Thus, a prerequisite for an
actionable claim under section 1986 is a viable claim under section 1985. Because
Plaintiff has not stated a section 1985 claim, his section 1986 is not actionable and is
dismissed. See 28 U.S.C. § 1915A(b)(1).
II.
Motion for Appointment of Counsel [Doc. No. 9]
Plaintiff is seeking an appointment of pro bono counsel in this action. As a
preliminary matter, civil litigants, unlike criminal defendants, do not have a constitutional
right to the appointment of counsel. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d
Cir. 1986) (district judges are afforded “broad discretion” in determining whether to
appoint pro bono counsel for an indigent litigant in a civil case); 28 U.S.C. § 1915(e)(1)
(“The court may request an attorney to represent any person unable to afford counsel.”)
(emphasis added). The Second Circuit repeatedly has cautioned the district courts
against the routine appointment of counsel. See, e.g., Hendricks v. Coughlin, 114 F.3d
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390, 393 (2d Cir. 1997); Cooper v. A. Sargenti Co., 877 F. 2d 170, 172 (2d Cir. 1989).
The Second Circuit has made clear that before an appointment is even considered, the
indigent person must demonstrate that he is unable to obtain counsel. See Hodge, 802
F.2d at 61.
In 2012, Plaintiff made two attempts to find an attorney to represent him in this
action. In 2013, Plaintiff made a third attempt to find counsel. None of the attempts
were successful. Plaintiff has made no recent attempts to find counsel. Furthermore,
there is no indication that Plaintiff has made any attempts to contact the Inmate Legal
Aid Program (“ILAP”) with regard to any questions he might have about litigating this
case. As of July 1, 2015, the Inmates’ Legal Aid Program operated by Bansley
Anthony, LLC replaced the former ILAP operated by Sydney T. Schulmann Associates.
Attorneys at the new program may be contacted at the following address and telephone
number: Inmate Legal Aid Program, Bansley Anthony, LLC, 265 Orange Street, New
Haven, CT 06510; Telephone 1-866-311-4527.
Accordingly, the Court concludes that Plaintiff has not shown that he is unable to
secure legal representation or assistance without the court’s intervention. The motion is
denied without prejudice. Plaintiff may renew this motion at a later stage of the litigation
after he has made efforts to find counsel to represent him in this case.
ORDERS
The Court enters the following orders:
(1)
The Motion for Appointment of Counsel [Doc. No. 9] is DENIED without
prejudice. The section 1985 and 1986 claims are DISMISSED as to all defendants
pursuant to 28 U.S.C. § 1915A(b)(1). The section 1983 claims against all defendants in
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their official capacities for money damages are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(2) and all section 1983 claims against Wardens Semple, Erfe and
Chapdelaine, Health Administrators Maurto or Lightner, and Drs. Fedus and Salhe are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). The section 1983 claims of
retaliation against defendants Jane Doe #1, Martin and Berkawitz and the section 1983
claims of deliberate indifference to medical needs against as to Jane Doe #1 are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Thus, all claims against
defendants Semple, Erfe, Chapdelaine, Maurto, Lightner, Fedus, Salhe, and Jane
Doe #1 have been DISMISSED.
The section 1983 claims of retaliation will proceed against defendants Nurse Kim
Martin and Nurse Heidi and the section 1983 claims of deliberate indifference to medical
needs as well as the state law claims of negligence and medical malpractice will
proceed against defendants Heidi, Tawana, and Berkawitz and John Doe #1 and John
Doe #2 in their individual and official capacities.
2)
Because Plaintiff paid the filing fee to commence this action, he
is not entitled to have service effected by the court. Plaintiff shall effect service of
the complaint on each of the following defendants in his or her individual capacity:
Nurse Heidi, Nurse Tawana, Nurse Kim Martin, Dr. Berkawitz, Dr. John Doe #1 and Dr.
John Doe #2 in accordance with the requirements of Rule 4, Fed. R. Civ. P., within 60
days of the date of this order and file returns of service within 70 days of the date of this
order. Failure to comply with this order will result in the dismissal of all claims against
defendant Buchanan.
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(3)
The Clerk shall send plaintiff instructions for service of the complaint,
together with six blank Notice of Lawsuit forms and six blank Waiver of Service of
Summons forms to enable Plaintiff to serve a copy of the complaint on each defendant
in his or her individual capacity and six blank summons forms for plaintiff to complete
and return to the Clerk for issuance to enable plaintiff to serve a copy of the summons
and complaint on each defendant in his or her official capacity using the address of the
Office of the Attorney General, 55 Elm Street, Hartford, Connecticut 06141.
(4)
Defendants shall file their response to the complaint, either an answer or
motion to dismiss, within sixty (60) days from the date the notice of lawsuit and waiver
of service of summons forms are mailed to them. If the defendants choose to file an
answer, they shall admit or deny the allegations and respond to the cognizable claims
recited above. They may also include any and all additional defenses permitted by the
Federal Rules.
(5)
Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37,
shall be completed within six months (180 days) from the date of this order.
Discovery requests need not be filed with the court.
(6)
All motions for summary judgment shall be filed within seven months
(210 days) from the date of this order.
SO ORDERED at Bridgeport, Connecticut this 9th day of November, 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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