Figueroa v. Correctional Managed Health Care et al

Filing 8

INITIAL REVIEW ORDER. Signed by Judge Victor A. Bolden on 12/23/2016. (Williams, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PEDRO FIGUEROA,
Plaintiff,
v.
CORRECTIONAL MANAGED HEALTH,
CARE, ET AL.,
Defendants.

:
:
:
:
:
:
:
:

Case No. 3:16-cv-120 (VAB)

INITIAL REVIEW ORDER
Plaintiff, Pedro Figueroa, is incarcerated at Osborn Correctional Institution (“Osborn”).
He names Dr. Wu, Medical Director Richard Furey, Commissioner Semple and Correctional
Managed Health Care as Defendants. For the reasons set forth below, the Complaint will be
DISMISSED.
Under 28 U.S.C. § 1915A(b), the Court must review prisoner civil complaints against
governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous, malicious, or
fails to state a claim upon which relief may be granted,” or that “seeks monetary relief from a
defendant who is immune from such relief.” Id. 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).
Mr. Figueroa states that he underwent surgery to replace his right knee at the University
of Connecticut Health Center on November 12, 2014. The discharge instructions allegedly
included an order that Mr. Figueroa work with the services provided at Osborn to “encourage
range of motion and ambulation” but did not include an order for pain medication. Compl., ECF
No. 1 at 11. At some point, Medical Director Richard Furey allegedly informed Mr. Figueroa
that physical therapy was not available at Osborn.
During a follow-up appointment on November 28, 2014, an orthopedist allegedly noted
that Mr. Figueroa was progressing well and his fever was gone, but that he suffered from
effusion, an accumulation of fluid in the right knee. On December 26, 2014, an orthopedist
allegedly noted that Mr. Figueroa was improving and did not have a fever or drainage from the
incision, but was having difficulty engaging in therapy due to poor pain control. The orthopedist
allegedly prescribed medication for pain and inflammation, recommended that Mr. Figueroa
engage in physical therapy exercises, and suggested that Mr. Figueroa return to the clinic for an
appointment in two to three months.
On March 11, 2015, an orthopedist allegedly examined Mr. Figueroa‟s knee. During the
examination, Mr. Figueroa states he informed the orthopedist that he had not been provided with
physical therapy at Osborn. The orthopedist allegedly noted that the plaintiff was experiencing
2

pain and that his range of motion had not improved. According to Mr. Figueroa, the orthopedist
suspected that inflammation in Mr. Figueroa‟s knee was the cause of his limited range of motion
and pain.
The orthopedist allegedly prescribed an anti-inflammatory and recommended that Mr.
Figueroa engage in physical therapy to increase strength and improve his range of motion and to
continue stretching exercises on his own. He allegedly suggested that Mr. Figueroa follow up
with staff at Osborn.
On May 15, 2015, an orthopedist allegedly examined Mr. Figueroa‟s knee and noted that
his pain was gone, but that he was still experiencing some decreased range of motion. The
orthopedist allegedly showed Mr. Figueroa how to work on improving strength and range of
movement on his own, but also recommended that he engage in formal physical therapy to
improve strength and range of movement.
On August 13, 2015, Mr. Figueroa claims he filed a grievance complaining that he was
not receiving physical therapy to assist in his recovery from knee surgery. The reviewer
allegedly directed Mr. Figueroa to sign up for sick call if he was having issues with his knee.
Also, on August 13, 2015, Mr. Figueroa claims that he filed a request seeking access to
formal physical therapy. On October 1, 2015, Richard Furey allegedly responded to Mr.
Figueroa‟s request for accommodation and indicated that he had reviewed the report of the
orthopedist from May 15, 2015, but did not see an order for formal physical therapy.
On November 13, 2015, Mr. Figueroa claims that he participated in a videoconference
with an orthopedist. Mr. Figueroa also states that, at some point, he filed a habeas petition in
state court seeking an order that he be provided with physical therapy. Mr. Figueroa alleges that,
3

because of the orthopedist‟s recommendation for formal physical therapy, the Utilization Review
Committee scheduled an appointment for Mr. Figueroa to be seen by a physical therapist.
On December 3, 2015, a physical therapist allegedly examined Mr. Figueroa at the
University of Connecticut Health Center and showed him how to perform exercises to improve
range of motion and flexion. Mr. Figueroa also alleges that she provided him with a written
home exercise program and recommended that he continue to use a cane for six weeks. The
physical therapist allegedly suggested that Mr. Figueroa follow-up with facility staff.
Mr. Figueroa states that the Defendants failed to provide him with physical therapy at
Osborn following his knee surgery. He alleges that he experienced pain, discomfort, anxiety,
inflammation and loss of sleep as a result of the lack of physical therapy and poor pain
management.
I.

Official Capacity Claims
Mr. Figueroa seeks injunctive relief and monetary damages. To the extent that he seeks

damages against Defendants in their official capacities, the claims are barred by the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159 (1985); Quern v. Jordan, 440 U.S. 332,
342 (1979). All such claims are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
II.

Correctional Managed Health Care
Mr. Figueroa names Correctional Managed Health Care as a Defendant. He claims that

the Department of Correction has contracted with the University of Connecticut Health Center to
provide medical care to inmates through Correctional Managed Health Care. Mr. Figueroa states
that the contract includes a provision that the Department of Correction will pay for any civil
damages awarded to an inmate. He contends that this provision of the contract improperly
4

releases Correctional Managed Health Care and the University of Connecticut Health Center
from any wrongdoing and encourages lack of care for inmates.
To state a claim under section 1983, Mr. Figueroa must allege facts showing that the
defendant, a person acting under color of state law, deprived him of a federally protected right.
See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982). A state agency is not a “person”
within the meaning of section 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
(1989) (state and state agencies not persons within meaning of 42 U.S.C. § 1983).
The Department of Correction and the University of Connecticut Health Center are state
agencies. See Jolley v. Correctional Managed Health Care, Case No. 3:04-cv-1582 (RNC),
2009 WL 233667, at *3 (D. Conn. Jan. 30, 2009), aff’d, 375 F. App‟x 67 (2d Cir. 2010)
(explaining that Correctional Managed Health Care “is a division of a state agency, the
University of Connecticut Health Center”); see also Vaden v. Connecticut, 557 F. Supp. 2d 279,
288 (D. Conn. 2008); Garris v. Department of Correction, 170 F. Supp. 2d 182, 186 (D. Conn.
2001). Because it is a division of a state agency, Correctional Managed Health Care is not a
“person” within the meaning of section 1983. See Jolley, 2009 WL 233667, at *3 (dismissing
claims against Correctional Managed Health Care because it is not person within the meaning of
section 1983)(citation omitted). Accordingly, the claims against Correctional Managed Health

5

Care, including the contract claim, are dismissed as lacking an arguable legal basis. See 28
U.S.C. § 1915A(b)(1).1
III.

Defendants Wu and Semple
Mr. Figueroa alleges that Dr. Wu is assigned to Correctional Managed Health Care to

provide medical services to inmates. Mr. Figueroa states that “[t]he direction not to have
physical therapy (formal and/or informally) can be in writing or orally under the direction of Dr.
Wu.” Compl., ECF No. 1 at 3. Mr. Figueroa does not allege that Dr. Wu was aware of or
involved in his treatment following his knee surgery, and he does not otherwise mention Dr. Wu
in the body of the complaint. Mr. Figueroa lists Commissioner of Correction Scott Semple in the
caption of the complaint, but does not otherwise mention him in the body of the complaint.
The Court concludes that Mr. Figueroa has not asserted facts to suggest that either Dr. Wu
or Commissioner Semple were deliberately indifferent to his medical needs or otherwise violated
his federally or constitutionally protected rights. In order to be held liable for damages under
section 1983, an individual must be personally involved in the alleged constitutional deprivation.
See Dudek v. Nassau Cty. Sheriff's Dep't, 991 F. Supp. 2d 402, 413 (E.D.N.Y. 2013) (“An
individual officer's personal involvement in the „constitutional deprivation[ ]‟ is a „prerequisite‟
to a Section 1983 claim against them.” (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d
Cir. 1977))). Mr. Figueroa has failed to provide the Court with any factual basis to conclude that

1

The plaintiff does not name the Department of Correction or the University of Connecticut Health Center as
defendants. Even if he had named those entities as defendants, they would not be subject to suit because they are
not persons within the meaning of 42 U.S.C. § 1983. See Gaby v. Board of Trustees of Community Technical
Colleges, 348 F.3d 62, 63 (2d Cir. 2003) (per curiam) (noting decisions holding that state universities and their
boards of trustees are not persons within the meaning of section 1983); Walker v. State of Connecticut, No. 06-cv165 (SRU), 2006 WL 1981783, at *2 (D. Conn. Mar. 15, 2006) (“Like other state agencies, the University of
Connecticut Health Center is not a person within the meaning of section 1983”) (citations omitted); Santos v. Dep’t
of Corr., 3:04-cv-1562 (JCH)(HBF), 2005 WL 2123543, at *3 (D. Conn. Aug. 29, 2005) (observing that “[n]either a
Department of Correction nor a correctional institution is a person” subject to liability under section 1983).

6

these Defendants were personally involved in his alleged harms. Accordingly, all claims against
Defendants Wu and Semple are dismissed. See 28 U.S.C. § 1915A(b)(1).
IV.

Defendant Furey
Mr. Figueroa describes Richard Furey as the medical director at Osborn. Mr. Figueroa

claims that after he underwent knee surgery, Richard Furey informed him that formal physical
therapy was not available at Osborn. When Mr. Figueroa submitted a request for access to
formal physical therapy in August 2015, Richard Furey, as Health Services Administrator,
reviewed an orthopedist‟s report from May 2015. See Compl., ECF No. 1 at 20. Richard Furey
noted that the orthopedist had instructed Mr. Figueroa on how to do range of motion exercises,
but had not issued an order for formal physical therapy. See id.
The report of the orthopedist from May 15, 2015 is attached to the complaint. Compl.,
ECF No. 1 at 17. It includes a recommendation for formal physical therapy to increase range of
motion and strength, but it also includes a notation that there is “[n]o formal physical therapy in
jail.” Id. The Recommendations section of the consultation form also states that
“THERAPEUTIC PROCEDURES MUST BE PRECERTIFIED AND SCHEDULED BY
CMHC UR [Correctional Managed Health Care Utilization Review Committee].” Id. The form
clearly indicates that any recommended treatment must be approved by the Utilization Review
Committee. Thus, although there was a recommendation for physical therapy in the
orthopedist‟s report, there was no formal order that physical therapy be scheduled until
December 3, 2015, when Utilization Review Committee approved the request seeking an
examination of Mr. Figueroa by a physical therapist. Mr. Figueroa acknowledges that on

7

December 3, 2015, a physical therapist examined him, instructed him on how to do various
exercises and provided him with written exercises to perform at Osborn.
Thus, Richard Furey‟s response on October 1, 2015, indicating that the orthopedist had
not ordered physical therapy for Mr. Figueroa‟s knee was not inaccurate. At that time, there was
a recommendation for therapy, but no approved order for physical therapy. See Wortham v.
Plourde, Case No. 3:12-cv-1515(DJS), 2014 WL 4388560, at *2-3 (D. Conn. Sept. 5, 2014)
(noting that recommendation for physical therapy made by surgeon during post-operative
consultation “must be approved by the Utilization Review Committee” and “was not a prescribed
treatment required to be followed by medical staff at the correctional facility”).
To state a claim for deliberate indifference to a serious medical need, Mr. Figueroa must
show both that his medical need was serious and that the defendants acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle
v. Gamble, 492 U.S. 97, 104 (1976)). Mr. Figueroa‟s alleged need for physical therapy may be
sufficient to meet the first prong. See Stevens v. Goord, 535 F. Supp. 2d 373 (S.D.N.Y. 2008)
(finding that prisoner‟s need for physical therapy to treat underlying muscular dystrophy was
“sufficiently serious” for purposes of deliberate indifference claim); Benjamin v. Galeno, 415 F.
Supp. 2d 254, 259 (S.D.N.Y. 2005), aff'd sub nom. Benjamin v. Koeningsmann, 204 F. App'x
979 (2d Cir. 2006) (finding fact issue regarding whether rotator cuff injury constituted a “serious
medical need” for first prong of deliberate indifference claim where plaintiff alleged that injury
resulted in “extreme pain”). However, the facts alleged here do not satisfy the second prong of
the analysis as required to state a claim against Defendant Furey. Id. at 260 (requiring plaintiffs

8

to demonstrate “intentional wrong doing or a total lack of concern on the part of defendants with
plaintiff's well being” in order to prevail on deliberate indifference claim).
Mr. Figueroa mentions that he did not receive “proper medication” and experienced “poor
pain management.” Compl., ECF No. 1 at 8. However, he does not otherwise elaborate on
these statements, nor does he assert any facts to suggest that Richard Furey or any other
Defendant was involved in the decisions to prescribe or not to prescribe medications for him
following his knee surgery. Mr. Figueroa has not attached any grievances or requests in which
he complained about medication issues. Thus, the Court concludes that the allegations against
Richard Furey do not state a claim of deliberate indifference to medical needs. The claims
against Richard Furey are dismissed. See 28 U.S.C. § 1915A(b)(1).
V.

Americans with Disabilities Act
Mr. Figueroa claims to bring this civil action to remedy rights guaranteed by the

Americans with Disabilities Act (“ADA”) as well as the Eighth and Fourteenth Amendments.
To state a claim under Title II of the ADA, 42 U.S.C. § 12101, et seq., Mr. Figueroa must plead
“(1) that he is a qualified individual with a disability; (2) that he was excluded from participation
in a public entity‟s services, programs or activities or was otherwise discriminated against by a
public entity; and (3) that such exclusions or discrimination was due to his disability.” Hargrave
v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003). Most importantly, Mr. Figueroa must allege that
his mistreatment was motivated by either discriminatory animus or ill will due to disability. See
Elbert v. N.Y. State Dep’t of Corr. Servs., 751 F. Supp. 2d 590, 594-95 (S.D.N.Y. 2010) (citing
Garcia v. S.U.N.Y. Health Sciences Ctr. Of Brooklyn, 380 F.3d 98, 112 (2d Cir. 2001)). “Courts
routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do
9

not allege that the inmate was treated differently because of his or her disability.” Id. at 595
(collecting cases).
Mr. Figueroa claims that he underwent knee replacement surgery and that Defendants did
not provide him with physical therapy in a timely manner. Mr. Figueroa does not allege that
Defendants excluded him from or denied him the benefits of any services, programs or activities
because of his knee surgery or his condition following the surgery. Rather, he asserts that his
disability/condition was not adequately treated. Furthermore, there are no facts to suggest that
the lack of access to formal physical therapy was the result of ill will or discriminatory intent on
the part of any Defendant. See Garcia, 380 F.3d at 112-113 (affirming dismissal of ADA claim
where plaintiff failed to “allege discriminatory animus or ill will based on his purported
disability”); Elbert, 751 F.Supp.2d at 596 (dismissing ADA claim where allegations suggested
that prisoner “was not properly treated for his [condition], not that he was mistreated because of
his [condition]”). Because Mr. Figueroa does not allege that Defendants denied him treatment or
participation in various programs or activities because of his knee surgery or his condition
following the surgery, he fails to state a claim under the ADA. Those claims are dismissed as to
all Defendants. See 28 U.S.C. § 1915A(b)(1).
ORDERS
The Court enters the following orders:
(1)

The claims against all Defendants in their official capacities are DISMISSED

under 28 U.S.C. § 1915A(b)(2). All other claims against the Defendants are DISMISSED under
28 U.S.C. § 1915A(b)(1). The Court declines to exercise supplemental jurisdiction over any
state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966) (holding that,
10

where all federal claims have been dismissed before trial, pendent state claims should be
dismissed without prejudice and left for resolution by the state courts); Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118 (2d Cir. 2006).
(2)

The Clerk of the Court is directed to enter judgment for the Defendants and close

this case.
SO ORDERED at Bridgeport, Connecticut this 23rd day of December, 2016.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

11