Siminausky v. Starkowski et al
Filing
13
INITIAL REVIEW ORDER: See attached memorandum. Signed by Judge Vanessa L. Bryant on 1/20/2016.(Nadler, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANDREW SIMINAUSKY,
Plaintiff,
v.
JANE STARKOWSKI, et al.,
Defendants.
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CASE NO. 3:15-cv-159 (VLB)
INITIAL REVIEW ORDER
The plaintiff, Andrew Siminausky, currently incarcerated at the Cheshire
Correctional Institution in Cheshire, Connecticut, has filed a complaint pro se
under 42 U.S.C. § 1983 (2000). The complaint was filed on February 4, 2015, and
the plaintiff’s motion to proceed in forma pauperis was granted on March 5, 2015.
The plaintiff names twenty-three defendants: Jane Starkowski, Correctional
Managed Health Care Providers, Nurse Francis, Dr. Monica Farinella, Dr.
Omprakash Pillai, Supervisor E. Dolan, Health Services Administrator Lightner,
Nurse Joy Burns, Nurse Tim Granahan, Podiatrist Henry Fedus, Supervisor Patti
Wollenhauph, Dr. Michael Clements, Correctional Officer Turner, Correctional
Officer Peters, Addiction Services Counselor Willie McCreary, Correctional
Officer Alxander, Acting Warden Barone, Captain Hall, Warden Chapdelaine,
District Administrator Quiros, Warden John Tarascio, and Warden Peter Murphy.
The plaintiff asserts claims for violations of his constitutional rights, as well as
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
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[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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, 555-56
(2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662,
678 (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)).
I.
Allegations
The allegations in the complaint span the period from February 2012,
through December 2014 and are not presented in chronological order. The
defendants are from four different correctional facilities: MacDougall-Walker
Correctional Institution, Corrigan Correctional Institution, Osborn Correctional
Institution and Willard Cybulski Correctional Institution.
The plaintiff suffers from Raynaud’s Phenomenon, a circulatory disease
2
that results in diminished blood flow to the extremities. The condition causes the
plaintiff to suffer severe pain in his hands and feet and prevents him from
participating in programs or activities in cold, damp and rainy climates or airconditioned facilities.
The plaintiff alleges the following facts.
On February 6, 2012, the plaintiff filed an administrative remedy. The
plaintiff alleges that defendant Francis “checked off the exhaustion of remedies
box” thereby denying him a right of appeal, but the attached document does not
support this allegation. On February 8, 2012, the plaintiff filed a second medical
grievance which defendant Francis failed to answer. This grievance stated that
the plaintiff lost blood circulation in his extremities during outdoor recreation in
30 degree weather.
On February 14, 2012, the plaintiff saw Dr. Pillai. The plaintiff complained
about the lack of medical items he was provided to protect his extremities. Dr.
Pillai agreed to look into the matter but would not record the plaintiff’s complaints
in his medical records. Dr. Pillai conditioned his medical order for soft restraints
on approval by custody staff.
In March 2012, private attorney Jane Starkowski sent the plaintiff a letter in
which she stated that custodial staff had approved use of soft restraints to
address the plaintiff’s condition.
On March 14, 2012, the plaintiff was transferred from MacDougall-Walker
Correctional Institution to Corrigan Correctional Institution. He was placed in
3
metal restraints and, allegedly to cover-up staff misconduct, defendant Farinella
discontinued the soft-restraint order without examining the plaintiff. On March
27, 2012, the plaintiff was visited by an attorney retained by his family. Following
the visit, the plaintiff was transferred. Many of the plaintiff’s documents were
stolen when officers packed up his property for the transfer.
In April 2012, defendant Turner searched the plaintiff’s cell and confiscated
the plaintiff’s gloves. Defendant Turner stated that they were work gloves and the
plaintiff did not have a prison job. Defendant Turner refused to review the
plaintiff’s property matrix which referenced medically-issued gloves. The plaintiff
complained to the warden who referred the request to the medical department.
The medical staff stated that there was no glove order. After a visit with his
attorney, the plaintiff was issued black cotton gloves by the medical department.
The plaintiff returned to MacDougall-Walker Correctional Institution on
April 27, 2012. Upon his arrival, defendant Peters confiscated the black gloves.
The plaintiff sent a request to defendant Warden Murphy seeking return of the
gloves. The unit manager called the plaintiff to his office and told him that
Warden Murphy stated he could have the black gloves. The plaintiff also
requested the white gloves that previously had been confiscated. Ultimately, the
plaintiff received the white gloves and learned that the black gloves had been
discarded.
On May 14, 2012, the plaintiff filed a medical remedy in response to Dr.
Farinella discontinuing the soft-restraint order. Defendant Burns responded that
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the soft-restraint order had been renewed in February 2012 and that the plaintiff
should address these issues with the medical department rather than by
grievance. She failed to address the recent discontinuance of the order. The
plaintiff raised the issue at sick call but a soft-restraint order was not added to his
medical chart. The plaintiff also was denied a bucket in which to soak his feet.
The plaintiff then filed another medical grievance. Defendant Burns stated that
the plaintiff would be scheduled to see a doctor.
On November 21, 2012, the plaintiff was transferred to Osborn Correctional
Institution. Defendant Granahan failed to ask the plaintiff if he needed any
reasonable accommodations during medical orientation or advise the plaintiff of
his rights under the ADA. When the plaintiff asked for ADA forms, defendant
Granahan stated that the plaintiff would see a doctor the following day. There
was a six-month wait to see a doctor.
In December 2012, defendant McCreary denied the plaintiff access to an
anger management program that plaintiff contends was required for parole
eligibility, because the plaintiff was wearing his gloves.
In August 2013, the plaintiff refused a transfer to an air-conditioned facility.
Defendant Alxander placed the plaintiff in handcuffs and escorted him to
restrictive housing. During the escort, defendant Alexander tried to make the
plaintiff fall. After placing the plaintiff in his cell, defendant Alexander pulled the
plaintiff’s hands through the food trap causing pain in the plaintiff’s neck and
shoulders. The medical department did not deem this an emergency and did not
5
immediately provide pain medication.
On an unspecified date, the plaintiff was transferred back to MacDougallWalker Correctional Institution. In September 2013, the plaintiff submitted a
request to Warden Murphy regarding his pain. Defendant Acting Warden Barone
responded to the request but did not respond to a follow-up request regarding all
of the plaintiff’s medical concerns. The plaintiff received no response to a
September 2013 medical request regarding treatment for Raynaud’s Phenomenon
or to September 2013 requests to the ADA coordinator.
On March 31, 2014, the plaintiff sent a request to Warden Chapdelaine to
have his medical level reduced to level 2. On April 7, 2014, defendant Dolan
responded to this request and refused to order a level reduction for reasons with
which the plaintiff disagreed. In follow-up communications, defendant Dolan
acknowledged that the plaintiff did not require a climate controlled facility but
declined to become involved in custody placement issues. After repeated
requests, defendant Dolan reconsidered her medical classification decision and
stated that the plaintiff’s medical level could be reduced to 2, subject to increase
in the future depending on the level of medical care the plaintiff required.
Although defendant Dolan noted in the plaintiff’s medical file on May 22, 2014,
that she would lower the plaintiff’s medical level to 2, documents from August
2014 indicate that his level again was 3.
In April and May 2014, the plaintiff encountered difficulty obtaining gloves.
His gloves were confiscated during a March 2014 cell search and were held in
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defendant Lightner’s office. Custody staff informed him that the gloves were
issued by the medical department, but defendant Dolan told the plaintiff to
request the gloves from custody staff.
In June 2014, defendant Dolan disagreed with the plaintiff’s request for a
correctional facility without climate control. In August 2014, the plaintiff asked
defendant Dolan to categorize Raynaud’s Phenomenon as a disability. Defendant
Dolan refused, stating that she was not authorized to make that determination.
Also in June 2014, the plaintiff sent his counselor a request for a reasonable
accommodation. The request was not processed in accordance with the two-day
time period specified in the directives, and the response was not provided by the
correct person.
On June 30, 2014, the plaintiff contacted defendant Lightner regarding a
request for gloves that he had submitted to Lightner and defendant Warden
Chapdelaine in March. Defendant Lightner noted that the order for gloves had
been renewed in May but did not provide him with any gloves. In July 2014,
defendant Lightner failed to respond to a request regarding transfer to a facility
without air conditioning. The plaintiff sent this same request to several persons.
Defendants Dolan and Warden Chapdelaine responded to the request. The
plaintiff filed multiple requests regarding these concerns in July and August 2014
and sent those requests to multiple persons.
On July 25, 2014, the plaintiff wrote to defendant Captain Hall to remind her
that the prior practice was for him to be transferred to a court date one-on-one
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because of the medical order that flexible cuffs be used. In response, defendant
Hall stated that there was no special transfer list.
On August 4, 2014, the plaintiff attempted to address concerns about hot
water in his cell directly to Warden Chapdelaine. He was instructed to use the
chain of command. The following day, the plaintiff communicated his concerns
regarding the lack of insulated footwear and gloves.
On August 8, 2014, the plaintiff was transferred to Willard Cybulski
Correctional Institution. The nurse completed an ADA intake form and issued the
plaintiff an extra blanket. Although the nurse requested a medical appointment,
the doctor visit did not immediately occur. On August 17, 2014, the plaintiff
submitted a sick call request seeking a doctor visit and stating that the air
conditioning was causing him to experience pain. The plaintiff saw the medical
supervisor, defendant Wollenhauph, the following day. The plaintiff explained
that his extra blanket had been confiscated. Wollenhauph took the plaintiff’s
pass for the extra blanket and told the plaintiff that no extra blankets were issued
at the facility.
The plaintiff filed a medical grievance complaining about Wollenhauph’s
demeanor, and Wollenhauph reviewed and denied the grievance. She returned
the plaintiff’s extra blanket after the plaintiff’s family contacted the
commissioner’s office. On August 25, 2014, the plaintiff sought a transfer to a
level 2 facility without air conditioning. The plaintiff was informed that he again
was classified as medical level 3. Defendant Wollenhauph responded to the
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plaintiff’s grievance and reduced his medical level to 2. Before doing so, she
cautioned him that his medical needs required confinement in a facility that was
staffed at all times, and that this level of coverage was not available in a medical
level 2 facility.
In September 2014, the plaintiff and defendant Dr. Clements disagreed
about the treatment for Raynaud’s Phenomenon. During the course of medical
visits for the prescribed treatment, defendant Wollenhauph improperly charged
the plaintiff a sick call fee for a follow-up visit.
On September 16, 2014, the plaintiff wrote to defendant Warden Tarascio
expressing difficulty contacting the ADA coordinator. Defendant Tarascio
responded with the coordinator’s name. The following day, the plaintiff wrote to
defendant Tarascio, stating that the mittens defendant Wollenhauph had provided
him were in gang colors and that staff was harassing him to wear the mittens at
all times. Later that day, the plaintiff met with defendants Tarascio and
Wollenhauph to discuss his condition. The plaintiff requested medical footwear
that had been prescribed. Defendant Tarascio referred the matter to defendant
Wollenhauph, who denied the request.
On September 19, 2014, the plaintiff was placed in metal handcuffs and leg
restraints with a tether chain and black box for a court trip. The plaintiff told
custody staff that he had a medical order for soft restraints. Defendant
Wollenhauph stated that the plaintiff had no such order and noted in the plaintiff’s
medical record that the order applied only in cold weather. She noted that she
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had examined the plaintiff’s extremities and found no problems and indicated the
outside temperature. The plaintiff states the he was required to remain in the
restraints in a cold damp courthouse basement and experienced pain as a result
of defendant Wollenhauph’s actions.
In November 2014, the plaintiff filed a grievance regarding Warden
Chapdelaine’s failure to respond to his request submitted the previous month
while the plaintiff was held in restrictive housing. Warden Chapdelaine denied
receiving the requests. Defendant Quiros denied the appeal of the grievance.
On December 10, 2014, the plaintiff saw Dr. Fedus for complaints of severe
foot pain and inability to sit at his desk or stand on cold concrete floors for any
length of time. The plaintiff worried that without proper medical care he would
lose circulation in his feet and experience severe pain. Dr. Fedus told the plaintiff
that he had been instructed to tell the plaintiff to wear three pairs of socks for
outdoor recreation and to stay outside for only twenty minutes. Dr. Fedus had
been treating the plaintiff since 2011, and on April 5, 2013, the plaintiff learned
that Dr. Fedus had entered an order in the computer system denying the plaintiff
insulated footwear even though Dr. Fedus had previously arranged for the
plaintiff to be seen by a rheumatologist, and the rheumatologist had ordered
insulated footwear to address the plaintiff’s condition.
II.
Discussion
The plaintiff describes his legal claims as follows: defendant Starkowski
failed to protect his rights; defendant Francis retaliated against the plaintiff by
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answering an administrative remedy and denying him a right to appeal; defendant
Farinella retaliated against the plaintiff by discontinuing a medical order without
evaluating the plaintiff; defendant Pillai denied the plaintiff basis medical care;
defendants Dolan and Lightner denied the plaintiff medical care, denied his right
to appeal the denials of medical care and retaliated against the plaintiff by
responding to an administrative remedy; defendant Burns denied the plaintiff his
right to appeal and retaliated against him by responding to a grievance;
defendant Granahan denied the plaintiff the right to utilize ADA forms and have
his ADA rights explained to him; defendant Fedus failed to comply with a medical
order from a specialist; defendant Wollenhauph denied the plaintiff basic medical
care and retaliated against him by responding to a grievance; defendant
Clements denied the plaintiff medical care and ignored medical orders; defendant
Turner denied the plaintiff gloves issued by the medical unit; defendant Peters
denied the plaintiff use of the medically-issued gloves; defendant McCreary
denied the plaintiff access to a program recommended for his parole eligibility;
defendant Alxander used excessive force against the plaintiff; defendant Barone
failed to respond to the plaintiff’s request for medical treatment; defendant Hall
lacked knowledge of ADA requirements and conspired with defendant Lightner to
forge ADA forms; defendant Chapdelaine failed to acknowledge the plaintiff’s
requests for medical care; defendant Tarascio denied the plaintiff medical care
and had him handcuffed and shackled with a tether chain and black box when he
was aware of the medical order that only soft restraints be used; and defendant
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Murphy failed to help the plaintiff obtain medical treatment, conspired to cover-up
a transfer for harassment purposes and failed to forward a medical grievance to
the proper correctional facility.
A.
Attorney Starkowski
Attorney Starkowski is a private attorney who provides legal assistance to
Connecticut inmates through the Inmates’ Legal Assistance Program. To state a
section 1983 claim, the plaintiff must allege that his constitutional or federally
protected rights were violated by a person acting under color of state law. A
person acts under color of state law when he exercises “some right or privilege
created by the State … or by a person with whom the State is responsible,” and is
“a person who fairly may be said to be a state actor.” See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937 (1988).
Private attorneys do not act under color of state law and are not state
actors merely because they possess a state-issued license to practice law. See
Polk County v. Dodson, 454 U.S. 312, 325 (1981). Any assistance provided by
Attorney Starkowski would be adverse to the State’s interest in the action.
Attorney Starkowski is not a state actor and cannot be sued under section 1983.
All claims against Attorney Starkowski are dismissed pursuant to 28 U.S.C. §
1915A.
B.
District Administrator Quiros
In the lengthy statement of facts, the plaintiff merely alleges that
defendant Quiros decided the appeal of a December 2014 grievance against
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defendant Warden Chapdelaine. In the grievance, the plaintiff complained that
defendant Chapdelaine ignored his grievance regarding medical care. Defendant
Quiros noted that there was no evidence to support a claim of negligence against
defendant Chapdelaine and reminded the plaintiff that he previously had been
advised to address his medical concerns to the medical department. The court
cannot discern any constitutionally protected right that was violated by this
response. Accordingly, all claims against defendant Quiros are dismissed
pursuant to 28 U.S.C. § 1915A(b)(1).
C.
Defendants UConn Health and the Connecticut Department of
Corrections
As discussed below, Plaintiff states only Eighth Amendment deliberate
indifference claims. Accordingly, all claims against Defendants UConn Health
and the Connecticut Department of Corrections must be dismissed in their
entirely, pursuant to 28 U.S.C. § 1915A(b)(1), because neither entity is “a ‘person’
within the meaning of § 1983.” Martin v. UConn Health Care, No. 3:99-cv-2158
(DJS), 2000 WL 303262, at *1 (D. Conn. Feb. 9, 2000) (dismissing claims against
UConn Health Care and Correctional Management); Torrence v. Pelkey, 164 F.
Supp. 2d 264, 271 (D. Conn. 2001) (dismissing claims against State of Connecticut
Department of Corrections).1
1
The Court construes named defendant Connecticut Managed Health Care
Providers, as UConn Health Care and Correctional Management, since the
plaintiff describes the named defendant as “a division of University of
Connecticut Health Center . . . working under contract with the DOC at MWCI.”
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D.
Prior Federal Action
In 2014, the plaintiff filed a federal civil rights action concerning some of
these same issues. See Siminausky v. Sean, No. 3:14-cv-243(VLB). In that case,
the plaintiff alleged facts concerning his treatment at Osborn Correctional
Institution. The allegations in this complaint concerning defendant Granahan,
identified as Nurse John Doe #1 in plaintiff’s earlier complaint, his claims
regarding his refusal to accept a transfer to a climate-controlled facility in August
2013, and his claims alleging excessive force by defendant Alexander, identified
in the prior complaint as John Doe #2, were all pled in the prior complaint.
A district court may stay or dismiss a suit that is duplicative of another
federal suit as part of its general power to administer its docket. Curtis v.
Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). A party has no right to maintain
two lawsuits against the same parties in the same court at the same time. Id. at
139. This prohibition may also be applied to claims that duplicate claims in
pending cases. See Ziemba v. Clark, 167 F. App’x 831, 832 (2d Cir. 2006)
(affirming dismissal under the prior pending action doctrine of claims that
duplicated claims in an earlier case filed by the plaintiff). Accordingly, all claims
relating to the plaintiff’s treatment at Osborn Correctional Institution are
dismissed pursuant to 28 U.S.C. § 1915A.
[Dkt. #1, Compl. at ¶ 5].
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D.
ADA and RA Claims
The plaintiff contends that all of the defendants violated his rights under
the ADA and RA by failing to ensure that he was provided insulated footwear,
thermal socks and gloves, received prompt medical attention and was not
transferred to a climate-controlled facility.
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the Services, programs, or activities of a public entity, or be
subjected to discrimination by such entity.” 42 U.S.C. § 12132. Similarly, the RA
prohibits discrimination “solely by reason of her or his disability.” 29 U.S.C. §
794(a). The ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(2)(A). It
also provides a non-exhaustive list of major life activities, including “eating,
sleeping, . . . concentrating, thinking, communicating, and working.” Id. In
addition, the degree of impairment must be significant enough to substantially
limit that activity. Id. When analyzing these claims, “courts have been careful to
distinguish impairments which merely affect major life activities from those that
substantially limit those activities.” Troeger v. Ellenville Cent. Sch. Dist., 523 F.
App’x 848, 852 (2d Cir. 2013) (citation and quotation marks omitted).
The plaintiff identifies his disabling impairment as Raynaud’s
Phenomenon. However, in support of his claim that this condition substantially
impacted a major life activity, he offers only the bare assertion that he “could not
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sleep, stand on the cold concrete floor, [] sit at a desk to eat or recreate outdoors
because of his disability.” [Dkt. #1, Compl. at ¶ 147]. While these allegations
touch upon activities listed in the statute as major life activities, the plaintiff does
not allege any “facts regarding the manner or duration of his alleged conditions
to indicate that they restrict any major life activity to the extent required under the
ADA.” Ray v. Weit, No. 13-cv-6416 (RRM) (CLP), 2015 WL 1299198, at *6 (E.D.N.Y.
Mar. 20, 2015) (dismissing pro se claim under the ADA). Therefore, he fails to
state a plausible ADA or RA claim. In addition, the court notes that there are no
reported cases finding a person who suffers only from Raynaud’s Phenomenon
disabled, and other cases considering this condition have concluded that the
plaintiff was unable to show the required substantial limitation of major life
activities. See, e.g., Loberg v. Gordon Flesch Co., Inc., 308 F. Supp. 2d 890, 892
(N.D. Ill. 2004) (Raynaud’s Phenomenon did not qualify as a disability under the
ADA because plaintiff failed to show that condition substantially limited any
major life activities). Because the plaintiff has failed to allege facts showing that
he suffers from a disability within the meaning of the ADA, his ADA and RA
claims are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
E.
Equal Protection Claim
The plaintiff generally asserts a claim for violation of his right to equal
protection of the laws. The Equal Protection Clause protects prisoners from
invidious discrimination. It does not mandate identical treatment for each
individual. Rather, it requires that similarly situated persons be treated the same.
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See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985). To state
an equal protection claim, the plaintiff must allege facts showing that he was
treated differently from other similarly situated individuals and the reason for the
different treatment was based on “impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.” Diesel v. Town of Lewisboro,
232 F.3d 92, 103 (2d Cir. 2000) (internal quotation marks and citation omitted).
Although the plaintiff characterizes all of his claims as violating his right to equal
protection, he has not alleged facts showing that he was treated differently from
similarly situated inmates or that his treatment was based on impermissible
considerations.
The plaintiff also can assert an equal protection claim on a “class of one”
theory. To state a valid equal protection “class of one” claim, the plaintiff must
allege, first, that he has been intentionally treated differently from others similarly
situated and, second, that there is no rational basis for the difference in
treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The plaintiff
must allege an “extremely high” level of similarity with the person to whom he is
comparing himself. Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005). The
plaintiff’s circumstances and the other person’s must be “prima facie identical.”
Id. at 105. The plaintiff has identified no other inmate who was treated differently
under similar circumstances. Thus, he fails to state an equal protection class of
one claim. See Page v. Lantz, No. 3:03-cv-1271 (MRK), 2007 WL 1834519, at *6 (D.
17
Conn. June 25, 2007) (holding that class of one equal protection claim fails as a
matter of law where plaintiff did not allege that similarly situated inmates were
treated differently under similar circumstances). The plaintiff’s equal protection
claim is dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
F.
First Amendment Retaliation Claim
The plaintiff generally alleges that defendants Francis, Farinella, Dolan,
Lightner, Burns and Wollenhauph violated his First Amendment right to be free
from retaliatory conduct. Prison officials may not retaliate against inmates for
exercising their constitutional rights. To state a retaliation claim, the plaintiff
must show that his actions were protected by the Constitution or federal law and
that his protected conduct was a “substantial or motivating factor” in the alleged
retaliatory conduct. Friedl v. City of New York, 210 F.3d 79, 85 (2000). 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.
1983). To support a claim of retaliation, the allegedly retaliatory conduct must
deter a similarly situated inmate of ordinary resolve from exercising his
constitutional rights. See Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004).
Lesser conduct is considered de minimis and will not support a retaliation claim.
The plaintiff alleges only that defendant Francis responded in what the
plaintiff considers an improper manner to one grievance and failed to respond to
another. He alleges that Dr. Farinella altered a medical order without examining
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him. The plaintiff was not satisfied with the manner in which defendants Dolan,
Lightner, Burns and Wollenhauph responded to his medical requests. He alleges
no facts showing that their actions were taken in response to complaints or
grievances he filed. Absent such facts, the plaintiff fails to state a cognizable
retaliation claim. The retaliation claims are dismissed pursuant to 28 U.S.C. §
1915A(b)(1).
G.
Eighth Amendment Claims
Liberally construing the Complaint and accompanying exhibits in a light
most favorable to the plaintiff, the Complaint appears to raise a series of Eighth
Amendment claims against the following defendants: Francis, Farinella, Pillai,
Dolan, Lightner, Burns, Fedus, Wollenhauph, Clements, Turner, Peters, Barone,
Hall, Chapdelaine, Tarascio, and Murphy. The Court notes that all of these claims
arise out of the failure of the Connecticut Department of Corrections to
accommodate the plaintiff’s acknowledged, diagnosed, medical condition,
Raynaud’s Phenomenon, that these alleged failures occurred in four different
facilities, over a three year period, and involve numerous individuals. This
suggests the possibility that claims have been improperly joined, and that the
Defendants may properly move to sever some of these claims into different
cases.
ORDERS
In accordance with the foregoing analysis, the court enters the following
orders:
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(1)
All claims against defendants Starkowski, Quiros, Granahan,
McCreary, and Alexander, all claims for violation of the ADA and RA, denial of
equal protection and retaliation, and all claims arising from the plaintiff’s
confinement at Osborn Correctional Institution are DISMISSED pursuant to 28
U.S.C. § 1915A.
(2)
The Clerk shall verify the current work address of defendants
Francis, Farinella, Pillai, Dolan, Lightner, Burns, Fedus, Wollenhauph, Clements,
Turner, Peters, Barone, Hall, Chapdelaine, Tarascio, and Murphy with the
Department of Correction Office of Legal Affairs, and mail waiver of service of
process request packets to them at the confirmed addresses within twenty-one
(21) days of this Order. The Clerk shall report to the court on the status of that
waiver request on the thirty-fifth (35) day after mailing. If any defendant fails to
return the waiver request, the Clerk shall make arrangements for in-person
service by the U.S. Marshals Service on that defendant in his or her 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 Clerk shall prepare a summons form and send an official
capacity service packet to the U.S. Marshal Service. The U.S. Marshal is directed
to effect service of the complaint on defendants Francis, Farinella, Pillai, Dolan,
Lightner, Burns, Fedus, Wollenhauph, Clements, Turner, Peters, Barone, Hall,
Chapdelaine, Tarascio, and Murphy in their official capacities at the Office of the
Attorney General, 55 Elm Street, Hartford, CT 06141, within twenty-one (21) days
20
from the date of this order and to file a return of service within thirty (30) days
from the date of this order.
(4)
The Clerk shall send written notice to the plaintiff of the status of this
action, along with a copy of this Order.
(5)
The Clerk 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.
(6)
The defendants shall file their response to the complaint, either an
answer or motion to dismiss, within sixty (60) days from the date the waiver
forms are mailed. If they choose to file an answer, they shall admit or deny the
allegations and respond to the cognizable claims recited above. They also may
include any and all additional defenses permitted by the Federal Rules.
(7)
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 filed with the court.
(8)
All motions for summary judgment shall be filed within eight months
(240 days) from the date of this order.
(9)
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.
(10)
If the plaintiff changes his address at any time during the litigation of
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this case, Local Court Rule 83.1(c)2 provides that the plaintiff MUST notify the
court. Failure to do so can result in the dismissal of the case. The plaintiff must
give notice of a new address even if he is incarcerated. The plaintiff should write
PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just put the
new address on a letter without indicating that it is a new address. If the plaintiff
has more than one pending case, indicate the case numbers in the notification of
change of address. The plaintiff should also notify the defendant or the attorney
for the defendant of his new address.
SO ORDERED this 20th day of January 2016, at Hartford, Connecticut.
/s/
Vanessa L. Bryant
United States District Judge
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