Braham v. Perelmuter et al

Filing 149

RULING denying 130 MOTION to Amend 1 Complaint, 92 Amended Complaint. See attached Ruling for details. Signed by Judge Sarah A. L. Merriam on 11/23/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
MICHAEL BRAHAM
:
:
v.
:
:
BRIAN PERELMUTER, et al.
:
:
------------------------------x

Civ. No. 3:15CV01094(JCH)

November 23, 2016

RULING ON MOTION FOR LEAVE TO FILE AMENDED COMPLAINT [Doc. #130]
Pending before the Court is a motion by self-represented
plaintiff Michael Braham (“plaintiff”) for Leave to File an
Amended Complaint. [Doc. #130]. Plaintiff seeks to file a Third
Amended Complaint to add new allegations against existing
defendants Commissioner Semple and Johnny Wu in their individual
capacities; to add five new defendants; and to add various
factual allegations against the current defendants. See
generally Doc. #130-2. For the reasons set forth below,
plaintiff’s Motion for Leave to File an Amended Complaint is
DENIED.
I.

BACKGROUND
On July 17, 2015, plaintiff, an incarcerated self-

represented party, filed a Complaint and a Motion for Injunctive
Relief against defendants Brian Perelmuter, Johnny Wu,
Commissioner Scott Semple, and John Doe. [Docs. ##29, 30]. On
July 22, 2015, Chief Judge Janet C. Hall issued an Initial

~ 1 ~

Review Order, dismissing plaintiff’s claims for monetary damages
against defendants Wu and Semple in their individual capacities.
[Doc. #6]. Plaintiff filed a motion to amend his Complaint on
December 4, 2015, which Judge Hall granted, in part, on March
16, 2016. [Docs. ##62, 86]. Specifically, at that time,
plaintiff was permitted to amend his Complaint to allege claims
against a new defendant, Health Services Administrator Brown, in
her individual capacity, and to add a claim sounding in
retaliation against existing defendant Perelmuter in his
individual capacity. See Doc. #86. Judge Hall denied plaintiff’s
motion to amend his Complaint to add a claim of conspiracy, to
add claims against defendants Wu and Semple in their individual
capacities, and to add Richard Benoit as a defendant. See id.
Plaintiff filed an Amended Complaint in accordance with this
order on March 29, 2016. [Doc. #92]. He filed a Second Amended
Complaint on April 18, 2016, adding defendant Sue O’Loughlin,
whose identity had recently been disclosed to plaintiff. [Doc.
#98]. At that time, plaintiff believed, based on the discovery
materials he had received to date, that O’Loughlin “was
responsible for the scheduling and facilitation” of plaintiff’s
dental treatment. Doc. #98 at 5.

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Defendants filed an Answer on May 17, 2016.1 [Doc. #103].
Written discovery closed on May 30, 2016, and depositions were
to be completed by June 30, 2016. [Doc. #97 at 4].
On June 17, 2016, plaintiff filed a “Notice of Intent to
Amend Complaint.”2 [Doc. #106]. Plaintiff’s Notice indicated
that, based on answers he had received to the written
depositions of defendants Brown and O’Loughlin, plaintiff would
be seeking leave of the Court to amend his Complaint to add two
additional defendants: “Sheryl Estrom and the ‘facility UR
tracker,’ or the ‘CMHC UR Scheduler’[.]” Doc. #106 at 1.
Plaintiff sought this amendment based on new information he
had received relating to the question of who was responsible for
scheduling an appointment for plaintiff to receive dental

Defendant O’Loughlin has not yet filed a response to
plaintiff’s Second Amended Complaint. On October 19, 2016, Judge
Hall issued an Order directing service of the Second Amended
Complaint and a waiver of service of process upon O’Loughlin at
her place of employment. See Doc. #147 at 1-2. O’Loughlin’s
response to plaintiff’s Second Amended Complaint is due within
sixty days from the date the Notice and Waiver of Service were
sent to her, or, on or before December 20, 2016. See Doc. #147
at 2.
1

Plaintiff’s notice was docketed as a Motion to Amend Complaint.
See Doc. #106. Plaintiff notes that although prison officials
received the notice for docketing on June 2, 2016, “human or
mechanical error necessitated that it be rescanned and emailed
on June 17, 2016.” Doc. #141 at 2 n.2. Indeed, plaintiff’s
notice is dated June 1, 2016, and is stamped as received by
Cheshire Correction Institution on June 2, 2016, and then again
on June 17, 2016. See Doc. #106 at 1.
2

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treatment. Plaintiff had propounded written deposition questions
to defendant O’Loughlin on April 12, 2016, [Doc. #112-7] and she
responded on May 18, 2016. [Doc. #112-8]. Ms. O’Loughlin
testified that she was not responsible for booking the dental
surgery appointments for prisoners. Specifically, she testified
as follows:
Q15: Okay, Ms. O’Laughlin [sic], isn’t it true that you
are responsible for scheduling dental surgeries for
prison inmates?
A15: Let me clarify something for you, while I am an
employee of UCONN Health Center, technically I work for
the School of Dental Medicine under UCHC. It is the
primary responsibility of clerks to book office
appointments. I am not a clerk.
....
Q17: Please explain the process by which you schedule
these inmate surgeries.
A17: Today, the process is as follows: The School of
Medicine is contacted by CMHC with requests for
available dates to book patient office visits. The oral
and Maxillofacial Surgery Department offers varying
dates over the next month or so and the CMHC chooses
which patients that are to be assigned.
Q18: Now, according to the Director of Dental Services,
Dr. Richard Benoit, once a dental surgery is approved by
the Utilization Review Committee, the case is referred
to you for scheduling, is that correct?
A18: No, as I said before, UCONN Health Center
coordinates a date with CMHC at the availability of the
UCONN Health center dental surgeons.
Doc. #112-7 at 3; Doc. #112-8 at 2-3. Plaintiff thus
continued to seek information regarding the identity of any

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employees tasked with making dental appointments for
prisoners like him.
On July 27, 2016, the undersigned held a telephonic Status
Conference, on the record. [Doc. #118]. At the conference, the
Court ordered counsel for the defendants to “use her best
efforts to identify the specific clerk responsible for
scheduling plaintiff’s dental appointment” and to provide the
name of said clerk to plaintiff on or before August 17, 2016.
Doc. #118 at 2. In light of the Court’s rulings at that
conference, the Court extended the dispositive motion deadline
from July 29, 2016, to September 30, 2016. Id. at 4.
On August 18, 2016, defendants filed a Status Report
asserting that “the identity of the requested clerks cannot be
readily attained,” and that “Ms. O’Loughlin was the individual
who assumed responsibility for scheduling surgical procedures
with oral surgeons in the out-patient clinic in the School of
Dental Medicine under UCHC during the period 2014-2015.” Doc.
#122 at 1. This assertion was in direct contradiction to
defendant O’Loughlin’s sworn deposition testimony. On August 31,
2016, the undersigned held a telephonic status conference to
address this ongoing issue. See Doc. #129. During the
conference, plaintiff again indicated that he intended to seek
leave to amend his Complaint to add additional defendants.
Plaintiff was advised “that the Court is unlikely to grant such
~ 5 ~

a motion at this late stage of the proceedings, particularly
where discovery is now closed and the deadline for filing
dispositive motions is less than a month away.” Id. at 3. On
September 2, 2016, plaintiff filed the instant Motion to Amend
his Complaint, along with a proposed Third Amended Complaint.
[Doc. #130].
II.

LEGAL STANDARD
Pursuant to Rule 15 of the Federal Rules of Civil

Procedure, a party may amend his pleading “only with the
opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Rule 21 governs the addition of parties: “On motion
or on its own, the court may at any time, on just terms, add or
drop a party.” Fed. R. Civ. P. 21.
With respect to the interaction of Rules 15(a) and 21,
it has been held that Rule 15(a) generally governs the
amendment of complaints, but in the case of proposed
amendments where new defendants are to be added, Rule 21
governs. The perceived supremacy of Rule 21 is, however,
of no practical consequence, since it is generally held
that the standards governing motions to amend under Rule
15 apply with equal force to motions to add parties under
Rule 21.
Meyers v. Kishimoto, No. 3:14CV535(CSH), 2015 WL 4041438, at *3
(D. Conn. July 1, 2015) (quotation marks and citations omitted).
In determining whether to grant leave to amend, the Supreme
Court has held:

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If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought
to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason
— such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc. — the leave
sought should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, where, as
here, a plaintiff moves for leave to amend the complaint to add
new claims and parties, a court will look to factors including
whether the opposing party is unduly prejudiced, whether
plaintiff has unduly delayed in seeking the proposed amendment,
and whether the proposed amendment would be futile. See, e.g.,
Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002)
(“Leave to amend should be freely granted, but the district
court has the discretion to deny leave if there is a good reason
for it, such as futility, bad faith, undue delay, or undue
prejudice to the opposing party.”(citing Foman, 371 U.S. at
182)).
A.

Prejudice

“[P]rejudice to the opposing party resulting from a
proposed amendment [is] among the most important reasons to deny
leave to amend.” AEP Energy Servs. Gas Holding Co. v. Bank of
Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010) (quotation marks and
citation omitted).

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In determining what constitutes “prejudice,” we consider
whether the assertion of the new claim would: (i) require
the opponent to expend significant additional resources
to conduct discovery and prepare for trial; (ii)
significantly delay the resolution of the dispute; or
(iii) prevent the plaintiff from bringing a timely
action in another jurisdiction.
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993).
“One of the most important considerations in determining whether
amendment would be prejudicial is the degree to which it would
delay the final disposition of the action.” H.L. Hayden Co. of
N.Y. v. Siemens Med. Sys., Inc., 112 F.R.D. 417, 419 (S.D.N.Y.
1986) (collecting cases). Thus, “a proposed amendment is
especially prejudicial when discovery [has] already been
completed and non-movant [has] already filed a motion for
summary judgment.” Krumme v. WestPoint Stevens Inc., 143 F.3d
71, 88 (2d Cir. 1998) (quotation marks and citation omitted);
see also Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d
442, 446 (2d Cir. 1985) (“ Moreover, permitting the proposed
amendment would have been especially prejudicial given the fact
that discovery had already been completed and [defendant] had
already filed a motion for summary judgment.”). Further, “the
longer the period of an unexplained delay, the less will be
required of the nonmoving party in terms of a showing of
prejudice.” Block, 988 F.2d at 350 (quotation marks and citation
omitted).

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B.

Futility

“Although Fed. R. Civ. P. 15(a) provides that leave to
amend should be given freely when justice so requires, where ...
there is no merit in the proposed amendments, leave to amend
should be denied.” Health-Chem Corp. v. Baker, 915 F.2d 805, 810
(2d Cir. 1990); see also S.S. Silberblatt, Inc. v. E. Harlem
Pilot Block--Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d
Cir. 1979)(“A trial court does not abuse its discretion in
denying leave to amend a complaint which even as amended would
fail to state a cause of action.”). “An amendment to a pleading
will be futile if a proposed claim could not withstand a motion
to dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)
(citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d
Cir. 1991)). See also, Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991). “Thus, the Court cannot consider
facts outside the pleadings in considering the futility of an
amendment.” A. ex rel. A. v. Hartford Bd. of Educ., No.
3:11CV1381(CSH), 2012 WL 3887020, at *4 (D. Conn. Sept. 6,
2012).
C.

Undue Delay

While undue delay in bringing a motion to amend is a factor
for the Court to consider in determining whether leave to amend
is appropriate, “[m]ere delay, ... absent a showing of bad faith
~ 9 ~

or undue prejudice, does not provide a basis for a district
court to deny the right to amend.” State Teachers Ret. Bd. v.
Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); see also Middle
Atl. Utilities Co. v. S. M. W. Dev. Corp., 392 F.2d 380, 384 (2d
Cir. 1968) (“The three-year delay from the filing of the initial
complaint is an inadequate basis for denying a motion to amend.
It may be a factor to be considered but unless the motion either
was made in bad faith or will prejudice defendant, delay by
itself is not enough to deny the requisite relief.” (citation
omitted)).
“The court plainly has discretion, however, to deny leave
to amend where the motion is made after an inordinate delay, no
satisfactory explanation is offered for the delay, and the
amendment would prejudice the defendant.” Cresswell v. Sullivan
& Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).
Moving to amend pleadings after the close of discovery
may constitute an inordinate delay even if certain
testimony adduced during discovery purportedly gives the
opposing party “full and fair notice” of a new theory
not alleged in the operative complaint. McCarthy v. Dun
& Bradstreet Corp., 482 F.3d 184, 201–02 (2d Cir. 2007).
This is because a defendant that received notice in the
complaint of the asserted claims and the grounds on which
they rest “may conduct ... trial preparation accordingly
and is not required, based on the plaintiff’s subsequent
conduct in litigation, to anticipate future claims that
a plaintiff might intend to pursue.” Id. at 202[.]
Hutter v. Countrywide Bank, N.A., 41 F. Supp. 3d 363, 371
(S.D.N.Y. 2014).

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III. DISCUSSION
Plaintiff seeks to amend his Complaint to add several new
defendants, to replead allegations against two existing
defendants, and to add new factual allegations. In support of
his motion, plaintiff argues that he has not unduly delayed in
seeking these proposed amendments, and that therefore, leave
should be granted to amend. See Doc. #130-1 at 2, Doc. #141 at
1-2. Plaintiff contends that he promptly filed a notice to the
Court of his intent to seek amendment in June 2016, and that he
has diligently prosecuted this case from its inception. See Doc.
#130-1 at 2; Doc. #141 at 1-2. Plaintiff argues that he has only
recently obtained through discovery the information needed to
assert the new allegations. See Doc. #130-1 at 2-3; Doc. #141 at
2. Further, plaintiff argues that defendants will not be unduly
prejudiced, as it was their own delay throughout the pendency of
this action that caused the need for plaintiff to amend at this
time. See Doc. #130-1 at 2.
Defendants oppose plaintiff’s motion for leave to amend.
[Docs. ##110, 133].3 Defendants assert that granting plaintiff’s

On June 29, 2016, defendants filed an opposition to plaintiff’s
Notice to Amend, which, as previously noted, had been docketed
as a Motion to Amend. [Doc. #110]. On September 23, 2016,
defendants filed an opposition to plaintiff’s Motion to Amend.
[Doc. #133]. The Court has considered the arguments made in both
submissions.
3

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motion would necessitate additional discovery and would cause
undue prejudice to defendants. As noted, discovery has closed in
this matter, and defendants have now filed their motion for
summary judgment.4 See Doc. #133 at 3. Defendants also claim that
plaintiff was aware of the identities of the proposed new
defendants and the information serving as a basis for the
proposed new allegations months prior to the filing of the
instant motion. See id. at 3-4. Thus, they argue, plaintiff
could have developed the proposed claims while discovery was
open, and could have sought leave to amend earlier in the case.
See id. Finally, defendants argue that it would be futile to
permit the proposed amendments, specifically with reference to
plaintiff’s attempts to replead claims against defendants
Semple, Wu, and against Benoit. See id. at 4. The Court will
address each of the proposed amendments in turn.
A.

Addition of New Defendants Erica Roman, David Salgado,
and Charlene DeCampos

Plaintiff seeks to add Correctional Managed Health Care
(“CMHC”) employees Erica Roman, David Salgado, and Charlene
DeCampos as defendants. See Doc. #130-2 at 2. Plaintiff alleges
that these three individuals each had responsibilities
concerning the scheduling of an appointment for plaintiff’s

Defendants’ opposition papers were filed on September 23, 2016;
defendants filed a Motion for Summary Judgment on September 30,
2016. [Doc. #137].
4

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surgery. See id. at 8-9. Specifically, plaintiff claims that
Roman and Salgado were tasked with requesting plaintiff’s
surgical dental appointment at the University of Connecticut
Health Center’s School of Dental Medicine (“UConn”). See id.
Plaintiff alleges that these proposed defendants were required
to fax an appointment request to defendant Sue O’Loughlin every
two weeks until the appointment was “completed.” Id. By failing
to fulfill these responsibilities, plaintiff contends that these
proposed defendants caused plaintiff’s surgery to be delayed for
over a year, and that said acts or omissions constitute
deliberate indifference to plaintiff’s medical needs. See id. at
8-9.
Plaintiff’s allegations are based, in part, on the
affidavit of Dr. Richard Benoit, the Director of Dental Services
for UConn and CMHC. See Doc. #130-1 at 3; Doc. #130-2 at 37. He
states: “The individual who grants appointments in the Oral
Surgery Department is Assistant Nurse Manager Sue O’Laughlin.
The CMHC staff who email or fax requests to her are David
Salgado, or Erica Roman. It is impossible to say who faxed over
the request to Ms. O’Laughlin after it was approved as both
likely did since it was sent every two weeks after that until
the appointment was complete.” Doc. #130-2 at 37 [sic].
Defendants have also represented that they “do not dispute that
the request for extraction, though approved, was not scheduled,
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regardless whether it was requested by David Salgao, Erica Roman
or Sue O’Laughlin.” Doc. #112 at 5 [sic].
Plaintiff’s proposed Third Amended Complaint also asserts
claims against Charlene DeCampos, alleged to be the individual
responsible for contacting UConn to request available dates for
plaintiff’s surgery. See Doc. #130-2 at 9. Plaintiff claims that
DeCampos failed to request an available date, or, if she did
request a date, “CMHC’s policy and practice of pre-exempting
service to accommodate patients with more urgent clinical needs,
necessitated DeCampos cancelling Braham’s surgery.” Doc. #130-2
at 9. Plaintiff alleges that these acts and/or omissions caused
plaintiff’s surgery to be delayed for over a year. See id.
Plaintiff has unduly delayed in bringing the instant claims
against these proposed new defendants. Plaintiff has long been
aware of the identities of Roman and Salgado, who were disclosed
in an affidavit of Benoit dated March 30, 2016. Defendants
represent that this information was provided to plaintiff on
April 1, 2016. See Doc. #133 at 3. Indeed, plaintiff requested
discovery related to these individuals on April 6, 2016. See
Doc. #105-1 at 13. Defendants also state that plaintiff learned
about the identity and role of Charlene DeCampos by June 16,
2016. See Doc. #133 at 3.
The Court recognizes that plaintiff has made numerous
attempts to ascertain the identity of the individual or
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individuals responsible for the scheduling of his dental
procedures. Conflicting information has been provided to
plaintiff during discovery in this regard. To date, defendants
have not identified the specific clerk responsible for
scheduling plaintiff’s dental appointment. Instead, defendant
O’Loughlin has “assumed responsibility” for scheduling
procedures, despite her contradictory testimony. Doc. #122 at 1;
see also Doc. #118 at 1-2. Nevertheless, neither Roman, nor
Salgado, nor DeCampos was tasked with scheduling plaintiff’s
surgery.
Plaintiff’s Eighth Amendment claims arise from allegations
of inadequate dental care. “A cognizable claim regarding
inadequate dental care, like one involving medical care, can be
based on various factors, such as the pain suffered by the
plaintiff, the deterioration of the teeth due to a lack of
treatment, or the inability to engage in normal activities[.]”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal
citations and explanatory parentheticals omitted). “The
Constitution does not mandate comfortable prisons, but neither
does it permit inhumane ones, and it is now settled that the
treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth
Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(quotation marks and citations omitted). “[P]rison officials
~ 15 ~

must ensure that inmates receive adequate food, clothing,
shelter, and medical care[.]” Id. However, “[b]ecause the Eighth
Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law, not every lapse in
prison medical care will rise to the level of a constitutional
violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.
2003). Thus, “[i]n order to establish an Eighth Amendment claim
arising out of inadequate medical care, a prisoner must prove
deliberate indifference to his serious medical needs.” Chance,
143 F.3d at 702 (quotation marks and citation omitted).
Here, plaintiff alleges that he suffered great pain and his
teeth deteriorated due to a unconstitutional delay in dental
treatment. See generally Doc. #98. While the scheduling of
plaintiff’s dental appointment is central to this suit, the
individual who is claimed to have been deliberately indifferent
to plaintiff’s serious dental needs by failing to schedule
plaintiff’s surgery -- O’Loughlin -- is a current defendant in
this action. Plaintiff has not pled facts sufficient to
establish that Roman, Salgado or DeCampos acted with deliberate
indifference to plaintiff’s serious medical needs. Thus,
amendment to include these additional individuals as defendants
would be futile.
The Court has also considered the substantial prejudice
that would result to the defendants in permitting the addition
~ 16 ~

of these three defendants. This case is close to resolution.
Discovery has closed, and defendants’ summary judgment motion
was filed while the instant motion to amend was pending. During
the pendency of this matter, the Court was called upon to
resolve several discovery motions, and the Court conducted
numerous telephonic and in-person conferences to address
disputes between the parties. It is clear to the Court that
permitting plaintiff to add new parties and claims would
significantly delay the resolution of the matter, would require
additional discovery, and would “give rise to motion practice
aimed at summary dismissal of [those] claim[s].” Vermont Mut.
Ins. Co. v. Ciccone, No. 3:09CV00445(VAB), 2015 WL 4999894, at
*2 (D. Conn. Aug. 21, 2015).
Accordingly, the Court finds that the factors weigh against
permitting plaintiff to amend his Complaint to add Roman,
Salgado and DeCampos as defendants in this matter, and the
motion to amend is denied as to these requests.
B.

Addition of New Defendant Sheryl Estrom

Plaintiff also seeks to add Sheryl Estrom as a defendant in
this matter. See Doc. #130-2 at 15. Plaintiff alleges that
Estrom was employed by CMHC as the Health Services Review
Coordinator, and that her duties included reviewing prisoners’
medical grievances. See id. Plaintiff alleges he filed a
grievance on April 5, 2015. See id. at 16. He contends that even
~ 17 ~

though he followed the Department of Correction procedures,
Estrom returned plaintiff’s grievance without disposition,
thereby delaying, denying and interfering with plaintiff’s
dental treatment. See id. Plaintiff alleges that Estrom’s
“rejection of Braham’s grievance was intended to deny him access
to the DOC’s administrative remedies process.” Id.
Plaintiff was aware of the identity and role of this
individual in April of 2015, as she signed, dated and returned
the grievance to him. See Doc. #130-2 at 35. “A court may deny a
motion to amend when the movant knew or should have known of the
facts upon which the amendment is based when the original
pleading was filed, particularly when the movant offers no
excuse for the delay.” Ruotolo v. City of New York, No.
03CV5045(SHS), 2006 WL 2372236, at *2 (S.D.N.Y. Aug. 16, 2006),
aff’d, 514 F.3d 184 (2d Cir. 2008) (quotation marks and citation
omitted). As noted above, any amendments to the Complaint at
this late date carry significant prejudice to the defendants.
Accordingly, the Court finds that the factors weigh against
permitting plaintiff to amend his Complaint to add Estrom as a
defendant in this matter, and the motion to amend is denied as
to this request.

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C.

Addition of Claim Against Defendant Johnny Wu in His
Individual Capacity

Plaintiff seeks to add a claim against existing defendant
Johnny Wu, in his individual capacity, for monetary damages. See
Doc. #130-2 at 16-17. Plaintiff’s Second Amended Complaint
alleges a claim against defendant Wu in his official capacity,
for injunctive relief. [Doc. #98]. On two prior occasions, the
Court has denied plaintiff’s requests to plead allegations
against defendant Wu in his individual capacity. See Doc. #6 at
4; Doc. #86 at 9-10. Plaintiff’s proposed Third Amended
Complaint newly alleges that defendant Wu failed to train the
other co-defendants in this matter, that “Wu’s acts and
omissions to act created [] policies and customs that caused
Braham to be denied adequate dental care” and that these acts
and omissions “constitute deliberate indifference to Braham’s
serious dental needs.” Doc. #130-2 at 17.
“[T]o establish a defendant’s individual liability in a
suit brought under §1983, a plaintiff must show, inter alia, the
defendant’s personal involvement in the alleged constitutional
deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138
(2d Cir. 2013) (collecting cases).
The personal involvement of a supervisory defendant may
be
shown
by
evidence
that:
(1)
the
defendant
participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of
the violation through a report or appeal, failed to
remedy the wrong, (3) the defendant created a policy or
~ 19 ~

custom under which unconstitutional practices occurred,
or allowed the continuance of such a policy or custom,
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation
omitted).
Plaintiff’s proposed Third Amended Complaint does not
allege facts sufficient to infer that defendant Wu was
personally involved in plaintiff’s alleged constitutional
deprivation. Plaintiff’s unsupported, conclusory allegation that
Wu’s actions or inactions created “policies and customs” that
led to the harm alleged is insufficient to subject defendant Wu
to liability in his individual capacity for his supervisory
role. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not [meet
the facial plausibility standard]. Nor does a complaint suffice
if it tenders naked assertions devoid of further factual
enhancement.” (quotation marks and citation omitted)). See also
Farrow v. Martinez, No. 3:16CV333(JAM), 2016 WL 3546205, at *2
(D. Conn. June 23, 2016) (“[C]onclusory, unsupported allegations
of ... the existence of a policy are simply insufficient to
establish liability of supervisory prison officials under
§1983.” (quotation marks and citation omitted)); Bennett v.
~ 20 ~

Goord, No. 03CV6577, 2006 WL 2794421, at *5 (W.D.N.Y. Aug. 1,
2006), aff’d, No. 06-3818, 2008 WL 5083122 (2d Cir. Dec. 2,
2008) (finding no personal involvement by supervisory employee
where “plaintiff neither states what the policies are, nor does
he provide any evidence supporting his assertion that
[defendant] allowed any policy or custom under which
unconstitutional practice occurred to continue”).
Further, plaintiff has not alleged that defendant Wu was
aware of plaintiff’s medical needs and deliberately ignored
them. See Chance, 143 F.3d at 702 (“An official acts with the
requisite deliberate indifference when that official ‘knows of
and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.’” (quoting Farmer, 511 U.S.
at 825)). As plaintiff has not alleged a plausible claim against
defendant Wu for liability in his individual capacity,
permitting amendment would be futile.
Additionally, plaintiff has unduly delayed in filing the
request to amend for this claim. Wu has been a defendant in this
matter since its inception and plaintiff has offered no
persuasive reason for his delay in requesting leave to amend
with regards to this defendant. The Court has also considered
the prejudice that would result if plaintiff was permitted to
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proceed against Wu in his individual capacity, and has
determined it is significant.
Accordingly, the Court finds that the factors weigh against
permitting plaintiff to amend his Complaint to proceed against
Wu in his individual capacity, and the motion to amend is denied
as to this request.
D.

Addition of Claim Against Commissioner Scott Semple in
His Individual Capacity

Plaintiff also seeks to add a claim against existing
defendant Semple, in his individual capacity, for monetary
damages. The Court has twice previously denied this request. See
Doc. #6 at 4; Doc. #86 at 5-6. Plaintiff’s proposed Third
Amended Complaint newly alleges that defendant Semple is
responsible for the development and implementation of Department
of Correction policies and procedures; that some of these
policies and practices are “diametrically opposite” to CHMC
policies and procedures; that this “opposition” caused
interference with plaintiff’s dental care; and that interference
was “indicative of foreseeable dental care deficiencies that are
evident from CMHC’s written policies.” Doc. #130-2 at 18.5

Plaintiff’s allegations regarding the policies at issue relate
to his claims under the Eighth Amendment for monetary damages.
Plaintiff does not seek a declaratory judgment that said
policies are unconstitutional, nor does he seek an injunction to
enjoin the defendants from implementing these policies
prospectively. Plaintiff has sought to amend his Complaint
several times during the pendency of this lawsuit, but his focus
5

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Plaintiff further alleges that defendant Semple was made aware
of the deficiencies through prior lawsuits filed against him.
See id.
“[M]ere linkage in the prison chain of command is
insufficient to implicate a state commissioner of corrections or
a prison superintendent in a §1983 claim.” Richardson v. Goord,
347 F.3d 431, 435 (2d Cir. 2003) (quotation marks and citation
omitted); see also Gill, 824 F.2d at 196; Wright v. Smith, 21
F.3d 496, 501 (2d Cir. 1994). Here, plaintiff has not pled facts
sufficient to subject defendant Semple to liability in his
individual capacity. Plaintiff has offered no factual basis for
his conclusory allegation that defendant Semple was personally
involved in actions that directly caused plaintiff harm. Thus,
the proposed amendment would be futile.
Additionally, plaintiff has unduly delayed in filing the
request to amend for this claim. Semple has been a defendant in
this matter since its inception and plaintiff has offered no
persuasive reason for his delay in requesting leave to amend
with regards to this defendant. The Court has also considered

has been on his claims for monetary damages. While the Court
believes that plaintiff has identified serious flaws in the
Department of Correction’s provision of dental services, the
Court declines to construe plaintiff’s Complaint as requesting
Court intervention to address these systemic flaws. Rather,
plaintiff’s Complaint is clearly focused at this point only on
monetary remedies. See Doc. #130-2 at 21-22.
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the significant prejudice that would result if plaintiff was
permitted to proceed against Semple in his individual capacity.
Accordingly, the Court finds that the factors weigh against
permitting plaintiff to amend his Complaint to add a claim
against Semple in his individual capacity, and the motion to
amend is denied as to this request.
E.

Addition of New Defendant Richard Benoit

Finally, plaintiff seeks to add as a defendant Richard
Benoit, alleged to be CMHC’s Director of Dental Services. The
Court previously denied plaintiff’s motion to add Benoit as a
defendant. See Doc. #86 at 6-8. Plaintiff alleges that Benoit
became aware of plaintiff’s “dental issues as late as April
2015[,]” but did not respond to them until the instant lawsuit
was filed. Doc. #130-2 at 19. Plaintiff alleges that Benoit did
not adequately ensure the provision of dental care to plaintiff
and did not properly supervise his subordinates. See id.
Plaintiff’s prior motion to amend his Complaint to add
Benoit as a defendant was denied on March 16, 2016, and
plaintiff has not presented any additional facts or information
that would change the Court’s analysis and conclusion that
Benoit is not a proper defendant to this action. In fact,
plaintiff pleads far fewer facts in relation to Benoit in his
proposed Third Amended Complaint than he did in his proposed
Second Amended Complaint. Compare Doc. #62-1 at 16 with Doc.
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#130-2 at 19-20. Having also considered prejudice to defendants,
the Court concludes that the factors weigh against permitting
plaintiff to amend his Complaint to add Benoit as a defendant in
this matter, and the motion to amend is denied as to this
request.
F.

Addition of New Factual Allegations

Plaintiff’s proposed Third Amended Complaint sets forth
various new factual allegations. See Doc. #130-2 at ¶¶32-35, 37,
47, 50-51, 64-71, 74-76, 101, 132-135, 140-41, 146, 149, 156,
161-163. Plaintiff does not present any specific arguments for
their inclusion. In light of the determinations above, the
motion to amend is denied as to the addition of these factual
allegations.
Additionally, plaintiff seeks to increase the amount of
punitive damages he seeks from each individual defendant. See
id. at 21-22. Plaintiff is not seeking to add a claim for
punitive damages where one previously did not exist; rather,
plaintiff seeks additional damages per defendant sued in his or
her individual capacity. “Amendments increasing the amount of
damages do not ordinarily impose any prejudice on an opposing
party since judgments under Rule 54(c) are not bound by the
relief prayed for in the pleadings.” Poulson v. Beez Bugeez,
Inc., No. 84CV7035(CSH), 1986 WL 11457, at *1 (S.D.N.Y. Oct. 3,
1986); see also Fed. R. Civ. P. 54(c) (“Every other final
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judgment should grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings.”). Plaintiff is not bound by the dollar amounts
sought in his current Complaint. Accordingly, amendment for this
purpose is unnecessary.
IV.

CONCLUSION
As set forth above, plaintiff’s Motion for Leave to Amend

his Complaint is DENIED.
In light of the above ruling, plaintiff shall file his
response to the defendants’ Motion for Summary Judgment on or
before December 23, 2016.
This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 23rd day of
November, 2016.

__

/s/

HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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