Durand v. Santini et al

Filing 7

ORDER (1) dismissing all claims against Defendants Irizarry, Santini, Villa, and Those Known and Unknown to Petitioner; and (2) to show cause regarding the exhaustion requirement as it pertains to the claim that Counselor Mancuso refused to comply with the medical status reports that Plaintiff be housed in a first floor cell as of December 11, 2013. Signed by Judge Vanessa L. Bryant on 9/15/2016. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TAMIRA DURAND,
Plaintiff,
v.
LIDIA SANTINI, ET AL.,
Defendants.

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Case No. 3:15cv1476(VLB)

RULING AND ORDER
The plaintiff, Tamira Durand, is currently confined at Carswell Federal
Medical Center in Fort Worth, Texas (“FMC Carswell”). She has filed a complaint
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) (“Bivens”). She names Physician Assistants Lidia Santini and
Cesar Villa, Clinical Director Irizarry (“Dr. Irizarry”) and Counselor Mancuso as
defendants.
Pursuant to 28 U.S.C. § 1915A(b), a district 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. Rule 8 of the Federal Rules of Civil Procedure requires that
a complaint 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).
The plaintiff asserts that on or about June 28, 2013, she injured her left
knee playing basketball at the Federal Correctional Institution in Danbury,
Connecticut (“FCI Danbury”). A nurse diagnosed the plaintiff as suffering from
temporary knee and joint pain and issued her crutches. At the time, the plaintiff
was housed on the top tier and was assigned a top bunk in her cell.
On July 1, 2013, the plaintiff’s knee was swollen and she could not put any
weight on it. Physician Assistant Santini did not examine the plaintiff, but
referred her for x-rays of her left knee. On July 26, 2013, the plaintiff complained
that her knee was very painful and that it was difficult to climb the stairs to reach
her bunk. Physician Assistant Santini noted that the x-rays showed no

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abnormalities. At the plaintiff’s request, Physician Assistant Santini referred her
to an orthopedist.
On August 1, 2013, the plaintiff’s knee buckled during her shift in the food
services department. A nurse gave her medication for the pain in her knee. On
August 27, 2013, a nurse issued the plaintiff a knee brace.
On September 10, 2013, Physician Assistant Villa treated the plaintiff for
diarrhea, but did not treat the plaintiff’s knee pain. On September 24, 2013,
Physician Assistant Villa treated the plaintiff for diarrhea and informed the
plaintiff that she was on the waiting list to see an orthopedist.
On September 26, 2013, a nurse issued the plaintiff a temporary bottom
bunk pass. On September 30, 2013, the plaintiff complained that her knee was
still swollen and was locking up. Physician Assistant Villa extended the plaintiff’s
bottom bunk pass.
On November 14, 2013, the plaintiff sought treatment for back pain. A
nurse noted that the plaintiff had undergone an MRI in 2012 which showed
bulging discs in her lower spine. The nurse prescribed pain medication and gave
the plaintiff a pass so that she did not have to return to work. Later that day,
Physician Assistant Villa determined that the plaintiff did not meet the criteria for
a bottom bunk pass.
The following day, the plaintiff complained of low back pain that shot down
her left leg and also numbness in her left foot. Physician Assistant Villa
administered an injection of medication to the plaintiff’s back, but refused to
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issue her a bottom bunk pass. He directed the plaintiff to speak to someone on
“Mainline” regarding a bottom bunk pass.” Compl., Doc. No. 1 at 13.
On November 18, 2013, Dr. Irizarry examined the plaintiff. The plaintiff
complained of knee and back pain. Based on the results of the x-rays of her
knee, Dr. Irizarry ruled out an injury to her knee ligaments. He did not believe the
plaintiff’s complaints of back pain, did not notice the notation regarding her prior
history of bulging discs in her lower spine and refused to issue her a bottom
bunk pass.
On November 25, 2013, Dr. Irizarry examined the plaintiff. When he
reviewed the plaintiff’s medical chart, he noticed the 2012 MRI of the plaintiff’s
lower back that reflected bulging discs. Based on the MRI results, he issued the
plaintiff a bottom bunk pass for thirty days.
On December 20, 2013, Physician Assistant Villa extended the plaintiff’s
lower bunk pass and referred her to a neurologist. On December 29, 2013, the
plaintiff experienced severe pain in her back and down one of her legs as well as
weakness and an inability to walk. A physician examined the plaintiff and
administered an injection of medication to relieve her symptoms.
On December 31, 2013, the plaintiff’s symptoms had not subsided. Medical
officials transferred the plaintiff to Danbury Hospital for treatment. An MRI of the
plaintiff’s lumbar spine revealed disc herniation and stenosis. The plaintiff
remained in the hospital for five days and received various medications and
injections to relieve the pain in her back.
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Hospital officials released the plaintiff back to FCI Danbury on January 4,
2014 with a prescription for medication and a walker. On January 9, 2014, Dr.
Izarry examined the plaintiff and renewed her pain medication.
On or about January 9, 2014, an orthopedist examined the plaintiff and
noted that the plaintiff suffered from a herniated disc and radiculopathy on the
left side of her lower spine. He recommended that she be re-evaluated by a
neurosurgeon for further treatment. He did not examine the plaintiff’s left knee.
On January 10, 2014, a neurologist performed an EMG to assess the health
of her muscles and nerves in her lower extremities. The neurologist noted that
the results of the EMG revealed that the plaintiff suffered from mild denervation
and radiculopathy in her lower spine and referred her to a neurosurgeon. He also
prescribed pain medication.
On January 24, 2014, Physician Assistant Villa examined the plaintiff due to
her complaints of numbness and weakness in her left calf. He prescribed
medication for the plaintiff’s symptoms.
On February 10, 2014, an orthopedist examined the plaintiff due to her
complaints of lower back pain and left leg numbness. The orthopedist would not
increase the plaintiff’s pain medication, but informed her that she had been
approved for neurosurgery.
Dr. Iziarry examined the plaintiff on February 27, 2014, and noted that he
could not figure out the source of the plaintiff’s pain. Although, he thought the
plaintiff might be malingering, he increased her pain medication.
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On March 5, 2014, prison officials at Danbury transported the plaintiff to the
FMC Carswell for treatment. Medical officials confined the plaintiff in the hospital
and restricted her to ambulating in a wheelchair until surgery could be performed
on her spine.
On May 23, 2014, an orthopedist examined the plaintiff and noted instability
in her left knee. He indicated that an MRI might be necessary. The orthopedist
also noted the results of the EMG study and referred the plaintiff to an
orthopedist in the spine clinic.
The plaintiff claims that in June 2014 an MRI of her left knee revealed
damage to her medial collateral ligament. The plaintiff underwent lower back
surgery on January 27, 2015 at FMC Carswell. The plaintiff seeks monetary
damages for relief.
I.

Physician Assistants Santini and Villa and Dr. Irizarry
The plaintiff alleges that Physician Assistants Santini and Villa and Dr.

Irizarry failed to respond to her serious medical needs in a timely manner. As a
result, she suffered pain in her knee and back.
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 indifference standard. Objectively, the
alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294,
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298 (1991). The condition must produce death, degeneration or extreme pain.
See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). The 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
v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). 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, 316 F.3d 178, 184 (2d Cir. 2003).
The conduct complained of must involve “an unnecessary and wanton infliction
of pain or be repugnant to the conscience of mankind.” Estelle v. Gamble, 429
U.S. 97, 105-06 (1976) (internal quotation marks omitted).
A.

Physician Assistant Santini

After the plaintiff injured her left knee playing basketball in June 2013, a
nurse diagnosed the plaintiff as suffering from knee and joint pain and provided
her with crutches. On July 1, 2013, Physician Assistant Santini examined the
plaintiff due to her complaints of swelling and instability in her left knee, referred
her for x-rays and issued her a pass to rest her knee. The x-rays taken of the
plaintiff’s left knee on July 12, 2013 showed no abnormalities.
On July 26, 2013, when the plaintiff continued to complain of pain and
swelling in her left knee, Physician Assistant Santini referred the plaintiff to be
seen by an orthopedist and sent her back to work at her prison job. There are no
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allegations that Physician Assistant Santini treated the plaintiff after July 26,
2013.
The allegations reflect that Physician Assistant Santini responded to the
plaintiff’s complaints of swelling, pain and instability in her left knee by referring
her for diagnostic testing, issuing her a pass to rest her knee rather than
performing her prison job, and then referring her to an orthopedist for evaluation.
The allegations against Physician Assistant Santini with regard to the injury she
claims to have suffered playing basketball do not state a claim of deliberate
indifference to medical needs. The claims against Physician Assistant Santini are
therefore dismissed. See 28 U.S.C. § 1915A(b)(1).
B.

Defendant Villa

The plaintiff claims that Physician Assistant Villa saw her in September
2013, but made no mention of knee pain in his medical notes. He did inform the
plaintiff that she was still on the list to see an orthopedist. The plaintiff saw a
nurse later in September, who issued her a temporary bottom bunk pass.
Physician Assistant Villa subsequently extended the bottom bunk pass.
The plaintiff did not see Physician Assistant Villa again for nearly a month
and a half. On November 15, 2013, the plaintiff complained of lower back pain.
Physician Assistant Villa administered an injection of pain medication, but denied
the plaintiff’s request for a lower bunk pass.
On November 25, 2013, Dr. Izarry issued the plaintiff a lower bunk pass for
thirty days. When the plaintiff returned to the medical unit on December 20, 2013,
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Physician Assistant Villa renewed the plaintiff’s pass for a lower bunk and also
referred the plaintiff to a neurologist because of her complaints of back pain.
The plaintiff saw Physician Assistant Villa again on January 24, 2014
because of numbness in his left calf. Physician Assistant Villa prescribed
medication to treat the symptoms. These allegations do not show deliberate
indifference on the part of Physician Assistant Villa to the plaintiff’s back or knee
injuries. Thus, the claims against Physician Assistant Villa are dismissed. See
28 U.S.C. § 1915A(b)(1).
C.

Dr. Irizarry

The plaintiff claims that during the time period from November 2013 to
February 2014, Dr. Irizarry treated her on three occasions and on a fourth
occasion re-filled a prescription for pain medication. When Dr. Irizarry briefly
examined the plaintiff on November 19, 2013, he allegedly opined that the pain in
the plaintiff’s knee did not indicate ligament damage. Dr. Irizzary also failed to
notice the nurse’s notation in the plaintiff’s file that an MRI from 2012 showed
bulging discs in her lower spine. When Dr. Irizzary examined the plaintiff six days
later, he became aware of the MRI from 2012 and issued the plaintiff a bottom
bunk pass until the injury to the plaintiff’s back could be resolved. After the
plaintiff returned to the prison facility from Danbury Hospital on January 4, 2014,
Dr. Irizzary re-filled her prescription for pain medication for an additional seven
days.
On February 27, 2014, Dr. Irizarry examined the plaintiff due to the
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plaintiff’s complaints of pain in her lower back and pain and numbness in her left
leg. Dr. Irizarry was uncertain as to the source of the plaintiff’s pain. He
increased the dosage of pain medication. On March 5, 2014, prison officials at
FCI Danbury transported the plaintiff to FMC Carswell in Forth Worth, Texas.
The plaintiff contends that Dr. Irizarry should have ordered an MRI to rule
out ligament damage rather than concluding that no ligament damage had
occurred based on his observations and the results of her knee x-rays. The
plaintiff’s claim with regard to Dr. Irizarry’s decision that her knee injury was not
severe and did not require an MRI is a claim of a difference of opinion or
diagnosis. The Second Circuit has held that inmates are not entitled to the
medical treatment of their choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir. 1986). Thus, mere disagreement with prison officials about what constitutes
appropriate care does not state a claim cognizable under the Eighth Amendment.
See Chance, 143 F.3d at 703 (“So long as the treatment given is adequate, the fact
that a prisoner might prefer a different treatment does not give rise to an Eighth
Amendment violation.”); Perez v. Hawk, 302 F. Supp. 2d 9, 21 (E.D.N.Y. 2004)
(“although the provision of medical care by prison officials is not discretionary,
the type and amount of medical treatment is discretionary”).
In addition, the allegation that Dr. Irizarry failed to notice the notation in the
plaintiff’s file regarding the MRI of her lower spine from 2012 that showed bulging
discs and should have issued a bottom bunk pass, are claims of negligence, at
most. These allegations do not state a claim of deliberate indifference to medical
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needs. See Estelle, 429 U.S. at 106 (“Thus, a complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment. Medical malpractice
does not become a constitutional violation merely because the victim is a
prisoner.”); Smith, 316 F.3d at 184 (“the Eighth Amendment is not a vehicle for
bringing medical malpractice claims, nor a substitute for state tort law”); Chance,
143 F.3d at 702 (“negligence, even if it constitutes medical malpractice, does not,
without more, engender a constitutional claim”) (citation omitted); Espinal v.
Coughlin, No. 98Civ.2579 (RPP), 2002 WL 10450, at *4 (S.D.N.Y. Jan. 3, 2002)
(allegation that medical staff failed to correctly diagnose the plaintiff’s medical
condition based on review of plaintiff’s medical records was “at most an
allegation of negligence or disagreement with a course of treatment which does
not rise to the deliberate indifference standard”). The claims against Dr. Irizarry
are dismissed. See 28 U.S.C. § 1915A(b)(1).
II.

Known and Unknown Defendants
The caption of the complaint includes a defendant described as “Those

known and unknown to Petitioner being a party hereto.” The plaintiff does not
describe these defendants or otherwise refer to them in the body of the
complaint. As such, she has not alleged that they violated her federally or
constitutionally protected rights. The claims against the known and unknown
defendants are therefore dismissed. See 28 U.S.C. § 1915A(b)(1).

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III.

Counselor Mancuso
The plaintiff alleges that although prison officials issued her passes for a

lower bunk during her confinement at FCI Danbury, she asked Counselor
Mancuso on several occasions to move her to a cell on the first floor because it
was difficult for her to climb the stairs to reach the upper tiers. Counselor
Mancuso refused to grant the plaintiff’s request despite the fact that her medical
status reports indicated that she was to be housed in a cell on the first floor and
assigned to a bottom bunk as of December 11, 2013. The plaintiff attaches
medical status reports from December 11, 2013 to January 24, 2014. See Compl.,
Doc. No. 1 at 28-31.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires an inmate
to exhaust his or her administrative remedies before bringing an action with
respect to prison conditions. The Supreme Court has held that this provision
requires an inmate to exhaust administrative remedies before filing any type of
action in federal court, see Porter v. Nussle, 534 U.S. 516, 524, 532 (2002),
regardless of whether the inmate may obtain the specific relief he desires through
the administrative process. See Booth v. Churner, 532 U.S. 731, 741 (2001). The
exhaustion requirement applies equally to Bivens claims. See Williams v.
Metropolitan Detention Center, 418 F. Supp. 2d 96 (E.D.N.Y. 2005). The statute
clearly states that inmates must exhaust all available administrative remedies
before filing suit. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). Thus, any

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attempt to exhaust administrative remedies after the case was filed is ineffective
to satisfy the exhaustion requirement.
Although the plaintiff attempted to exhaust her administrative remedies as
to her request for a bottom bunk prior to November 25, 2013, when Dr. Irizarry reissued her a bottom bunk pass, she makes no mention of having exhausted her
available administrative remedies as to her request that Counselor Mancuso
assign her to a cell on the first floor of the housing tier. See Compl., Doc. No. 1 at
16-19. The available administrative remedies for a Bivens claim consist of a fourstep process set forth in the Bureau of Prisons’ Administrative Remedy Program.
See 28 C.F.R. § 542. The four step process is as follows: (1) the inmate must
attempt informal resolution with prison staff; (2) the inmate must submit a formal
written “Administrative Remedy Request” to the warden within twenty days of the
incident giving rise to his claim; (3) the inmate must appeal an adverse decision
from the warden to the appropriate regional director within twenty days from the
denial of the formal request; and (4) the inmate must appeal the Regional
Director’s adverse decision to the Bureau of Prisons General Counsel’s office
within thirty days. See 28 C.F.R. §§ 542.13(a), 542.14(a), 542.15(a).
The plaintiff does not allege that she attempted to comply with the Bureau of
Prisons’ Administrative Remedy Program by submitting written remedy requests
to the Warden, Regional Director, or Bureau of Prisons’ General Counsel’s office
regarding Counselor Mancuso’s alleged failure to comply with the medical status

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reports that she be housed in a cell on the first floor. Nor has she submitted any
evidence her attempts to exhaust this Bivens claims prior to filing the complaint.
Failure to exhaust administrative remedies is an affirmative defense. See
Jones v. Bock, 549 U.S. 199, 216 (2007). A court may, however, dismiss a claim
where the allegations on the face of the complaint establish that it is subject to
dismissal, even on the basis of an affirmative defense. See id. at 213-16
(acknowledging that court may dismiss a complaint sua sponte where an
affirmative defense is apparent on the face of the complaint).
The Second Circuit has cautioned the district courts, however, not to
dismiss a case sua sponte without first ensuring that plaintiff has notice and an
opportunity to be heard. See Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir. 2007);
Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (requiring district court to
afford prisoner notice and opportunity to demonstrate that he has exhausted his
available remedies). Accordingly, the court directs the plaintiff to explain why the
Bivens claim against Counselor Mancuso regarding his refusal to grant her
requests to be housing on the first floor should not be dismissed for failure to
exhaust her administrative remedies before filing this action. Any such dismissal
would be without prejudice to plaintiff re-filing a new case asserting the Bivens
claim after fully exhausting her administrative remedies.
The plaintiff shall submit her response within thirty (30) days from the date
of this order. The plaintiff shall attach to her response copies of the documents
showing exhaustion of her Bivens claims. Failure to provide evidence of
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exhaustion, or evidence of why plaintiff was not required to exhaust her
administrative remedies, within the time provided will result in the dismissal of the
Bivens claims without any further notice.
ORDERS
The court enters the following orders:
(1)

All claims against defendants Irizarry, Santini, Villa and Those Known

and Unknown to Petitioner are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
(2)

Within thirty days of the date of this order, the plaintiff shall file her

response regarding the exhaustion requirement as it pertains to the claim that
Counselor Mancuso refused to comply with the medical status reports that she be
housed in a cell on the first floor as of December 11, 2013. Failure to comply with
this order within thirty days will result in dismissal of the claim against Counselor
Mancuso on the ground that plaintiff did not exhaust administrative remedies prior
to filing this action. Any such dismissal would be without prejudice to plaintiff refiling this action against Counselor Mancuso after fully exhausting her
administrative remedies.
SO ORDERED at Hartford, Connecticut this 15th day of September, 2016.

______/s/_____________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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