Harnage v. Woo et al
ORDER: The defendants' Renewed Motion to Dismiss (Doc. No. 63 ) is hereby GRANTED for the reasons set forth in the attached ruling. The Clerk shall enter judgment and close this case. Signed by Judge Alvin W. Thompson on 4/9/18. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES A. HARNAGE,
DR. WU, et al.,
Civil No. 3:16-cv-675(AWT)
RULING ON RENEWED MOTION TO DISMISS [ECF No. 63]
The plaintiff, James A. Harnage, commenced this civil
rights action pro se against 42 defendants.
On September 1,
2016, the court issued an Initial Review Order finding that the
complaint did not comply with Federal Rules of Civil Procedure 8
and 20, and ordering the plaintiff to file an amended complaint
that complied with those rules.
an amended complaint.
ECF No. 8.
The plaintiff filed
On September 16, 2016, the court issued a
second Initial Review Order finding that the amended complaint
failed to comply with the prior order and affording the
plaintiff one last chance to file an amended complaint in
compliance with the rules.
ECF No. 10.
On November 15, 2016, the plaintiff filed a second amended
complaint including only Dr. Wu and Nurse Vecchairelli as
defendants and asserting a claim for deliberate indifference to
a serious medical need.
ECF No. 13.
The court ordered that the
second amended complaint be served on defendants Wu and
ECF No. 15.
Both defendants filed motions to
On September 5, 2017, the court granted defendant Wu’s
motion but denied defendant Vecchairelli’s motion.
ECF No. 43.
Defendant Vecchairelli has filed a renewed motion to
dismiss asking the court to dismiss this case under 28 U.S.C. §
1915(e)(2)(B)(ii) in light of admissions by the plaintiff
evidenced in filings by him in this case.
For the reasons that
follow, defendant Vecchairelli’s motion is granted.
To withstand a motion to dismiss filed pursuant to Federal
Rule of Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
“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.”
plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”
Legal conclusions and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are not entitled to a
presumption of truth.
When reviewing a motion to dismiss, the court must draw all
reasonable inferences in the non-movant’s favor.
Pataki, 689 F.3d 110, 114 (2d Cir. 2012).
In conducting its
review, the court may consider the facts alleged in the
complaint, documents attached to the complaint or incorporated
into the complaint by reference, and matters subject to judicial
New York Pet Welfare Ass’n, Inc. v. City of New York,
850 F.3d 79, 86 (2d Cir. 2017).
The plaintiff has been diagnosed as a diabetic and was
prescribed insulin twice a day to control his blood sugar
He received the insulin by injection at “Diabetic
The plaintiff would proceed to the designated area and
wait in line with other inmates for his injection.
On the evening of May 27, 2013, defendant Vecchairelli was
administering the insulin injections.
The syringes are designed
so the needle fully retracts once the plunger has been pushed to
the maximum position.
When Vecchairelli injected the inmate who
was in front of the plaintiff in line, she stopped the plunger
She then inserted the needle into the insulin bottle to
draw another dose.
The inmate in front of the plaintiff was
infected with Hepatitis C.
The plaintiff asked defendant Vecchairelli if she was aware
that she was contaminating the insulin vial.
The plaintiff reported the incident to the custody
supervisor and submitted an emergency medical request.
The plaintiff states, however, that he was not injected
with insulin from the contaminated vial.
He received a
different type of insulin than the inmate in front of him in
The medical department monitored the diabetic inmates,
including the plaintiff, for contamination.
The defendants move to dismiss the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii), which requires the court to “dismiss
the case at any time” if the court determines that the action
“fails to state a claim on which relief may be granted.”
denying defendant Vecchairelli’s first motion to dismiss, the
court drew an inference that the plaintiff had been injected
with insulin drawn from a contaminated vial.
ECF No. 43 at 6.
After the motion was denied, the plaintiff appended to two
motions a copy of his interview with a correctional officer
regarding the incident.
See ECF Nos. 47-1, 48-1.
interview, the plaintiff states that he received a type of
insulin that is different from what the inmate in front of him
in line received and he never was injected with insulin drawn
from the contaminated vial.
ECF Nos. 47-1 at 4, ¶¶16-17; 48-1
at 4, ¶¶16-17.
Defendant Vecchairelli contends that the court can take
judicial notice of the document.
The court agrees.
The Second Circuit has held that courts can consider court
documents at the motion to dismiss stage where both parties had
notice of the content of the documents and the documents are
integral to the plaintiff’s claim.
See Cortec Industries, Inc.
v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991); see also
Freedberg v. J.P. Morgan Chase & Co., No. 16 CIV. 3177 (CM),
2016 WL 7495181, at *1 (S.D.N.Y. Dec. 22, 2016)(when considering
a motion to dismiss, court may take judicial notice of public
records and of “admissions in pleadings and other documents in
the public record filed by a party in other judicial proceedings
that contradict the party’s factual assertions in a subsequent
action.” (quoting Harris v. New York State Dep't of Health, 202
F. Supp. 2d 143, 173 n.13 (S.D.N.Y. 2002))); Munno v. Town of
Orangetown, 391 F. Supp. 2d 263, 269 (S.D.N.Y. 2005) (judicial
notice taken of submissions from a related state court action
where the documents “allegedly contain statements by plaintiff
which contradict the factual allegations contained in the
In 5–Star Management, Inc. v. Rogers, 940 F. Supp. 512
(E.D.N.Y. 1996), the court took judicial notice of the truth of
an admission by the plaintiff’s principal in a prior state court
The court concluded that it was not necessary to
convert the motion to dismiss into a motion for summary judgment
because the admission of the plaintiff bore substantially on the
legal sufficiency of his complaint, the plaintiff had sufficient
notice that the defendant intended to ask the court to take
judicial notice of the admission, the plaintiff was aware of the
legal significance the defendant attached to the admission, the
plaintiff did not object to consideration of the admission by
the court, and the plaintiff did not disavow the admission.
id. at 519.
Here, the plaintiff himself filed the document in this
He was made aware of the use defendant Vecchairelli
intended to make of the document in the motion to dismiss, and
the document has a direct impact on the legal sufficiency of his
Moreover, the plaintiff has acknowledged its truth in
his opposition to the motion to dismiss.
Although the plaintiff
generally objects to consideration of the document, he provides
no authority in support of his position that it should not be
The argument in favor of taking judicial notice of the
statement for its truth is stronger in this case than it was in
The court concludes that it should take
judicial notice of the document for its truth.
To state a claim under 42 U.S.C. § 1983, the plaintiff must
allege facts showing that defendant Vecchairelli violated a
right or privilege guaranteed under the Constitution or federal
See 42 U.S.C. § 1983 (“Every person who, under color of
[state law], subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured . . . .”).
In his second amended complaint, the plaintiff describes
only one incident where defendant Vecchairelli contaminated a
vial of insulin and he states that he did not receive an
injection of insulin from that contaminated vial.
plaintiff did not suffer an injury as a result of defendant
Vecchairelli’s alleged actions.
In opposition to the motion to dismiss, the plaintiff
attempts to expand the claims in the second amended complaint.
He states that he “believes” that this was a routine practice by
defendant Vecchairelli and argues that he could have received
contaminated insulin on a different day.
ECF No. 75-1 at 1-2.
The plaintiff cannot amend his complaint to add new factual
allegations in his memorandum in opposition to a motion to
See Uddoh v. United Healthcare, 254 F. Supp. 3d 424,
429 (E.D.N.Y. 2017)(citing cases).
Moreover, even if the plaintiff had included such
allegations, the claim would be dismissed as too speculative to
state a plausible claim for relief.
“The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are ‘merely consistent with’
a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
v. Rolling Stone LLC, 872 F.3d 97, 107 (2d Cir. 2017)
(dismissing allegations merely consistent with defendants’
liability as too speculative to withstand motion to dismiss).
Finally, the plaintiff alleges that, after he complained,
all diabetic inmates were tested and innoculated for various
To the extent the plaintiff is attempting to argue
that this testing and inoculation constitutes an injury,1 the
court is not persuaded.
To state an Eighth Amendment claim, the
plaintiff must allege facts demonstrating that the defendants
failed to provide for his “basic human needs—e.g., food,
clothing, shelter, medical care, and reasonable safety.”
DeShaney v. Winnebago Dep’t of Soc. Servs., 489 U.S. 189, 200
The allegation is not a separate deliberate indifference claim.
In his memorandum, the plaintiff states that his three deliberate
indifference claims are (1) to be free from exposure to infectious and
communicable diseases, (2) the right to be treated by qualified
medical staff, and (3) the right to safe and proper diabetic care,
including insulin injections. See ECF No. 75-1 at 14.
(1989); see also Rhodes v. Chapman, 452 U.S. 337, 347 (1981)
(only those conditions depriving inmates of the “minimal
civilized measure of life’s necessities” are sufficiently
serious to form the basis of an Eighth Amendment claim).
court can find no authority for the proposition that receiving a
precautionary test and/or innoculation is an injury cognizable
under the Eighth Amendment.
Thus, these measures do not support
a deliberate indifference claim.
The defendants’ motion to dismiss [ECF No. 63] is GRANTED.
The Clerk is directed to enter judgment and close this case.
It is so ordered.
Signed this 9th day of April 2018 at Hartford, Connecticut.
Alvin W. Thompson
United States District Judge
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