Rogers v. Salius et al

Filing 30

RULING granting in part and denying in part 25 Motion to Dismiss. The defendants Motion to Dismiss (Doc. No. 25 ) is GRANTED as to the claim for injunctive relief and DENIED in all other respects. The Clerk is directed to verify defendant Maioran as current work address with the Department of Correction Office of Legal Affairs, mail a waiver of service of summons packet containing the Amended Complaint and this Ruling and Order to defendant Maiorana at that address within twenty-one (21) day s of this Order, and report to the court on the status of the waiver request on the thirty-fifth (35) day after mailing. If defendant Maiorana fails to return the waiver request, the Clerk shall make arrangements for in-person service by the U.S. Marshals Service on her in her individual capacity and the defendant shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).. Signed by Judge Janet C. Hall on 4/12/2017. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOHN ROGERS,
Plaintiff,
v.
SCOTT SALIUS, et al.,
Defendants.

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CIVIL ACTION NO.
3:16-CV-1299 (JCH)

APRIL 12, 2017

RULING ON DEFENDANTS’ MOTION TO DISMISS (Doc. No. 25)
The plaintiff, John Rogers (“Rogers”), currently incarcerated at Northern
Correctional Institution in Somers, Connecticut, has filed an Amended Complaint (Doc.
No. 23) pro se under section 1983 of title 42 of the United States Code. The defendants
named in the Amended Complaint are Captain Scott Salius (“Salius”), Officer Jared
Grasso (“Grasso”), Nurse Barbara LaFrance (“LaFrance”), Counselor Angela Maiorana
(“Maiorana”), Counselor Damian Doran (“Doran”), Officer Shepard (“Shepard”), Dr.
Syhed Johar Naqvi (“Dr. Naqvi”), Director of Security Kimberly Weir (“Weir”) and Deputy
Warden Jesus Guadarrama (“Guadarrama”). Rogers seeks damages as well as
declaratory and injunctive relief from the defendants for violation of his constitutional
rights. The defendants have filed a Motion to Dismiss (Doc. No. 25). For the reasons
that follow, the defendants’ Motion is GRANTED as to the request for injunctive relief
and DENIED in all other respects.

I.

STANDARD OF REVIEW
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.” Iqbal, 556 U.S. at 678. The plausibility standard is not a probability
requirement; the pleading must show, not merely allege, that the pleader is entitled to
relief. Id. 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. Id. However, when reviewing a motion to dismiss, the court must draw all
reasonable inferences in the non-movant’s favor. Graziano v. Pataki, 689 F.3d 110,
114 (2d Cir. 2012).
II. FACTS
The incidents underlying this action occurred while Rogers was confined in the
Security Risk Group (“SRG”) Phase Program at the MacDougall-Walker Correctional
Institution (“MacDougall”). See Am. Compl. ¶ 11. In 2012, Rogers renounced his SRG
affiliation. See id. ¶ 11. He remained inactive during the events underlying this action.
See id. ¶ 11. Inmates in the SRG Program attend recreation with their hands cuffed
behind their backs. See id. ¶ 11. They recreate with other members of the SRG with
which they are affiliated. See id. ¶ 11.
2

Between 2010 and 2013, Rogers told defendant Weir multiple times that he was
concerned for his safety. See id. ¶ 12. He submitted many requests to be transferred
to protective custody, which requests defendant Weir denied. See id. ¶ 12. Instead,
Rogers was placed on rec-alone status. See id. ¶ 12. In 2012, Rogers completed the
SRG Program at Northern Correctional Institution. See id. ¶ 12.
In 2013, Rogers was re-affiliated with the SRG Crips and transferred to
MacDougall, the facility at which the SRG Program was then located. See id. ¶ 13.
Rogers again requested protective custody. See id. ¶ 13. Defendant Weir denied the
request even though she knew that, when the program was relocated, rec-alone status
was discontinued. See id. ¶ 13.
In September 2013, other Crips members told Rogers to assault another inmate.
See id. ¶ 14. He refused, claiming he was inactive. See id. ¶ 14. As a result of the
refusal, the Crips put a “hit” on Rogers. See id. ¶ 14. Defendant Shepard intercepted a
note about the hit being passed between two Crips members and gave the note to
defendants Salius, Doran and Guadarrama. See id. ¶ 15. They did not remove Rogers
from Crips recreation. See id. ¶ 15. Sometime later, Doran told Rogers that he “found
this month[’]s hit list,” but the information meant nothing to Rogers. See id. ¶ 16.
On October 31, 2013, defendant Grasso was supervising Crips recreation. See
id. ¶ 17. He applied handcuffs to each inmate and escorted them to the recreation yard.
See id. ¶ 17. Rogers believes that while Grasso was assigned to the SRG unit, several
inmates had manipulated their restraints and used the handcuffs as weapons to assault
other inmates. See id. ¶ 18.
3

On October 31, 2013, one inmate slipped his handcuffs and used them to assault
Rogers while another inmate kicked and stomped Rogers in the head, neck and face.
See id. ¶ 19. Right before the assault, Rogers claims that defendant Grasso saw the
inmate slip his handcuffs and told him to “make it quick and get on the ground when I
call the code.” See id. ¶ 20. Rogers was unable to protect himself and suffered multiple
injuries. See id. ¶ 21.
Following the assault, Rogers was seen in the medical unit where he received
stitches. See id. ¶ 22. Rogers complained about dizziness and pain in his neck and
face, but Dr. Naqvi did not address these claims. See id. ¶ 22. Rogers returned to the
housing unit and was placed in the same cell, with another Crips member. See id. ¶ 23.
Defendants Salius, Doran and Maiorana told Rogers about finding the note and learning
about the hit. See id. ¶ 23. Defendant Grasso approached Rogers and tried to explain
that he did not set Rogers up. See id. ¶ 24. He asked Rogers not to sue him. See id. ¶
24.
A few days later, Rogers felt a pop or crack at the base of his neck and his left
arm became numb. See id. ¶ 25. Dr. Naqvi prescribed Flexeril, a muscle relaxant, for a
few days. See id. ¶ 26. He said the condition was not serious and thought Rogers had
slept wrong. See id. ¶ 26. Rogers disagreed with the diagnosis. See id. ¶ 26.
Following the incident, the medical unit ignored Rogers’ complaints. See id. ¶ 27.
Nurse LaFrance denied Rogers’ requests for pain medication and, when he told her
about the assault, told him he was overreacting. See id. ¶ 27. She told him she would
order an x-ray, but he did not get one. See id. ¶ 27.
4

On February 20, 2014, Rogers went to the medical unit. See id. ¶ 28. He
complained of numbness and problems sleeping and an inability to turn his head to the
left without experiencing shooting pain down his back. See id. ¶ 28. He was denied a
meeting with Nurse LaFrance. See id. ¶ 28. Later on February 20, 2014, Rogers lay
down on the cell floor to “manipulate a medical code” to obtain medical assistance. See
id. ¶ 29. Defendant Maiorana came to his cell and told him to stop faking. See id. ¶ 29.
When Rogers would not get up, a lieutenant called a medical code. See id. ¶ 29.
Rogers was sent to St. Francis Hospital for an x-ray, CAT scan and MRI. See id. ¶ 30.
The tests showed that Rogers had suffered trauma to his neck, specifically a
fracture at T1 and disc bulges at C4 and C5. See id. ¶ 31. Rogers was admitted
because he required surgery to have a screw inserted into his neck. See id. ¶ 32. He
was discharged the following day because the Department of Corrections’ contract for
medical services was with the University of Connecticut, not St. Francis Hospital. See
id. ¶ 33.
Upon his return to MacDougall, defendants Salius and Maiorana stated that they
knew what Rogers had done. See id. ¶ 34. A few days later, defendant Maiorana told
other inmates that Rogers was a snitch and that he was afraid of the Crips. See id. ¶
35.
Rogers’ medical needs were ignored until June 24, 2014, when he was sent to
the University of Connecticut Health Center for an MRI. See id. ¶¶ 36–38. Nothing was
done to address Rogers’ injuries. See id. ¶ 38. On July 3, 2014, Rogers discharged
from custody without his medical needs being addressed. See id. ¶ 39.
5

III. ANALYSIS
Rogers asserts three claims in the Amended Complaint: (1) defendants Salius,
Maiorana, Doran, Shepard, Guadarrama and Weir were deliberately indifferent to his
safety, see id. ¶ 43; (2) defendants LaFrance and Dr. Naqvi were deliberately indifferent
to his serious medical needs, see id. ¶ 44; and (3) defendants Salius, Grasso,
Maiorana, Doran, Shepard, Guadarrama and Weir failed to protect him from harm, see
id. ¶ 45. He seeks damages from all defendants, a declaration that the defendants
violated his rights and an injunction preventing the use of handcuffs at recreation. See
id. ¶¶ 46–49.
In the Initial Review Order (Doc. No. 7), the court dismissed the claims against
defendant Maiorana without prejudice to Rogers filing an amended complaint if he could
allege facts showing that defendant Maiorana was involved in a failure to protect him
from harm or was deliberately indifferent to Rogers’ safety. See Initial Review Order at
11. Rogers has included new allegations against defendant Maiorana in the Amended
Complaint. See Am. Compl. ¶¶ 23, 29, 34–35.
The defendants move to dismiss1 on the grounds that Rogers fails to allege facts
supporting cognizable claims, that the defendants are protected by qualified immunity,
and that the court lacks subject matter jurisdiction. See Defs.’ Mem. (Doc. No. 25-1) at

1

Rogers attaches various Exhibits (Doc. No. 28-1) to his Memorandum in Opposition to the
Motion to Dismiss (Doc. No. 28-2). If the court were to consider the Exhibits, it would be required to
convert the Motion to Dismiss to a motion for summary judgment. See Fed. R. Civ. P. 12(d) (providing
that if “matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment….”). The court declines to consider Rogers’ Exhibits.

6

1. They rely on the dismissal of the claims against defendant Maiorana in the original
Complaint (Doc. No. 1) and do not acknowledge the new allegations against defendant
Maiorana in their Motion. See Defs.’ Mem. at 1.
A.

Conclusory Allegations

The defendants first argue that the Amended Complaint must be dismissed
because Rogers’ allegations are conclusory and fail to state a plausible claim for relief.
See id. at 4. The court disagrees. Rogers specifically alleges that defendants Shepard,
Salius, Doran, Maiorana and Guadarrama were aware of the hit on Rogers before the
assault occurred. See Am. Compl. ¶¶ 15, 23. He also alleges that defendant Grasso
was present and permitted the assault to occur. See id. ¶¶ 17, 20. Regarding
defendant Weir, Rogers alleges that during a prior SRG placement, defendant Weir had
ordered that Rogers recreate alone in response to his concerns for his safety. See id. ¶
12. Although Rogers again expressed the same concerns, defendant Weir did nothing
prior to the 2013 assault. See id. ¶ 13. Rogers also includes specific allegations about
the injuries he suffered during the assault and the results of hospital tests. See id. ¶¶
21–22, 25, 28, 31.
Rogers included these same allegations in the original Complaint. In the Initial
Review Order, the court determined that these allegations were sufficient to state
plausible claims. See Initial Review Order at 9–11. The defendants’ disagreement with
the court’s assessment does not warrant dismissal of the Amended Complaint.

7

B.

Injunctive Relief

The defendants next contend that Rogers cannot meet the requirement to obtain
injunctive relief in this case. See Defs.’ Mem. at 5. To state a claim for permanent
injunctive relief, Rogers must plausibly allege that he will suffer irreparable harm should
the injunction be denied as well as actual success on the merits of his claim. See
Oginbene v. Parkes, 671 F.3d 174, 182 (2d Cir. 2012). Irreparable harm requires an
“injury that is neither remote nor speculative, but actual and imminent and that cannot
be remedied by an award of monetary damages.” Daniels v. Murphy, No. 3:11CV286
(SRU), 2013 WL 587005, at *3 (D. Conn. Feb. 12, 2012) (quoting Forrest City Daly
Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (internal
quotation marks omitted)).
Furthermore, for Article III standing “[t]o obtain prospective relief, such as” the
“injunction” Rogers seeks, Rogers “must show, inter alia, a sufficient likelihood that he
[ ] will again be wronged in a similar way.” Marcavage v. City of N.Y., 689 F.3d 98, 103
(2d Cir. 2012) (internal quotation marks omitted). This standing requirement implicates
the court’s subject matter jurisdiction. Id. at 103.
The incident underlying this action occurred in 2013, while Rogers was confined
in the SRG Phase Program at MacDougall. See Am. Compl. ¶¶ 13, 17. He did not file
this action until 2016. Rogers seeks an order that handcuffs not be used during
recreation. See id. ¶ 47. As he alleges no facts suggesting that inmates are otherwise
handcuffed during recreation, the court assumes that Rogers means recreation for
inmates in the SRG Phase Program at MacDougall. The factual allegations in Rogers’s
8

Amended Complaint conclude by stating that he was discharged from MacDougall. See
id. ¶ 39. While the factual allegations in the Amended Complaint begin by alleging that
Rogers “is housed” in the SRG Phase Program at MacDougall, see id. ¶11, the court
takes judicial notice of the fact that Rogers’s address on record with the court is
Northern, not MacDougall, see Docket Sheet in Case No. 16-cv-1299, as well as the
fact that the Connecticut Department of Corrections Inmate Lookup website currently
lists John Rogers as incarcerated at Northern.2 Rogers’s allegation that he is currently
at the SRG Phase Program at MacDougall is thus not plausible. Additionally, Rogers
has not plausibly alleged that, absent actions within his control demonstrating SRG
activity, he will be required to complete the program in the future. The court concludes
that Rogers has not plausibly alleged any facts suggesting that he will suffer irreparable
harm should permanent injunctive relief be denied. Thus, the defendants’ Motion to
Dismiss is GRANTED as to the request for injunctive relief.
C.

Failure to Protect

The defendants argue that Rogers does not state a failure to protect claim.
Prison officials have a duty to make reasonable efforts to ensure inmate safety. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994). This duty includes protecting inmates
from harm at the hands of other inmates. See id. at 833; Fischl v. Armitage, 128 F.3d
50, 55 (2d Cir. 1997). To establish a constitutional violation, an inmate must show that
the conditions of his incarceration posed a substantial risk of serious harm and that

2

Available at http://www.ctinmateinfo.state.ct.us/detailsupv.asp?id_inmt_num=348126. Last
accessed April 4, 2017.

9

prison officials were deliberately indifferent to his safety. See Farmer, 511 U.S. at 834.
Deliberate indifference exists where prison officials know of and disregard an excessive
risk to inmate safety. See id. at 837; Bridgewater v. Taylor, 698 F. Supp. 2d 351, 357
(S.D.N.Y. 2010) (explaining that defendants must be aware of facts supporting an
inference that harm would occur and must actually draw that inference). “For example,
correctional staff would be on notice of a substantial risk of serious harm where there
has been prior hostility between inmates, or a prior assault by one inmate on another,
and those inmates are not kept separated.” Roman v. Semple, No. 3:13-CV-305 (JBA),
2013 WL 951728, at *1 (D. Conn. Mar. 12, 2013) (citing Ayers v. Coughlin, 780 F.2d
205, 209 (2d Cir. 1985)).
A negligent failure to protect prisoners from harm, however, is not cognizable
under section 1983. See Davidson v. Cannon, 474 U.S. 344, 347–48 (1986). In
addition, if a prison official “actually knew of a substantial risk to inmate health or
safety,” but responded in a reasonable manner to that risk, he “may be found free from
liability” under the Eighth Amendment, “even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 844. When “determining whether a substantial risk of harm existed,
the Court should not assess a prison official’s actions based on hindsight but rather
should look at the facts and circumstances of which the official was aware at the time he
acted or failed to act.” Hartry v. County of Suffolk, 755 F. Supp. 2d 422, 436 (E.D.N.Y.
2010) (citations and internal quotation marks omitted).
Rogers alleges that defendants Shepard, Salius, Doran, Maiorana and
Guadarrama were aware of the hit on Rogers before the assault occurred and that
10

Salius, Doran, and Maiorana communicated that fact to him. See Am. Compl. ¶¶ 15,
23. He also alleges that defendant Grasso was present and permitted the assault to
occur and also tried to deny his complicity in a conversation with Rogers. See id. ¶¶ 20,
24. In addition, Rogers alleges that during a prior SRG placement defendant Weir had
ordered that Rogers recreate alone in response to his concerns for his safety. See id. ¶
12. Although Rogers again expressed the same concerns, defendant Weir did nothing
prior to the 2013 assault. See id. ¶ 13. In the Initial Review Order, the court determined
that these allegations were sufficient to state a plausible claim for failure to protect
against defendants Shepard, Salius, Doran, Guadarrama, Grasso and Weir. See Initial
Review Order at 10. As Rogers has now alleged facts regarding defendant Maiorana,
he also states a plausible claim against her.
Again, the defendants disagree with the court’s determination that Rogers set
forth plausible failure to protect claims. See Defs.’ Mem. at 9. The defendants contend
that Rogers fails to allege that they were aware of a conflict that posed a heightened
risk to Rogers’ safety and emphasize that he did not identify his assailants to any
defendant. See id. at 12–13.
The allegation that defendants intercepted a note putting a hit on Rogers,
especially when combined with the allegation that the defendants acknowledged that
they understood the purpose of the note, is sufficient to plausibly allege that the
defendants were aware of a threat to Rogers’ safety. In addition, although Rogers does
not allege facts supportive of an inference that defendant Weir was aware of the hit, his
allegations, if proven, would support an inference that she accepted his prior complaints
11

as evidence of a threat to safety sufficient to warrant action in the form of a rec-alone
order. Rogers expressed the same safety concern during this placement in the SRG
program. Thus, the Amended Complaint plausibly alleges that defendant Weir was
aware of a threat to Rogers’ safety sufficient to warrant some action, but took none.
Whether Rogers can present sufficient evidence to prevail at trial or on a motion for
summary judgment is not the issue before the court. At this time, the court need only
determine whether Rogers has alleged sufficient facts to support a plausible failure to
protect claim.
The defendants also argue that the allegations are infirm because Rogers did not
submit the incident report. See Defs.’ Mem. at 13. The Federal Rules of Civil
Procedure require only notice pleading. Rule 8 requires only a “short and plain
statement of the claim.” Fed. R. Civ. P. 8(a)(2). There is no requirement that
documentary evidence be submitted along with the complaint.
D.

Deliberate Indifference to a Serious Medical Need

The defendants argue that defendants Dr. Naqvi and LaFrance were not
deliberately indifferent to Rogers’ serious medical needs. Defs.’ Mem. at 23–26.
“The Eighth Amendment forbids deliberate indifference to serious medical needs
of prisoners.” Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir.
2013) (internal quotation marks omitted). To establish a claim for deliberate indifference
to a serious medical need, Rogers must allege facts demonstrating two elements. The
first element is objective; “the alleged deprivation of adequate medical care must be
sufficiently serious.” Spavone, 719 F.3d at 138 (internal quotation marks omitted).
12

Under this objective element, a court must determine first, “whether the prisoner was
actually deprived of adequate medical care,” and second, “whether the inadequacy in
medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d
Cir. 2006). Adequate medical care is reasonable care such that “prison officials who act
reasonably cannot be found liable.” Farmer, 511 U.S. at 845. Rogers also must allege
facts showing that his medical needs, “either alone or in combination, pose an
unreasonable risk of serious damage to his health.” Darnell v. Pineiro, 849 F.3d 17, 30
(2d Cir. 2017); Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). “There is no settled,
precise metric to guide a court in its estimation of the seriousness of a prisoner’s
medical condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Nevertheless,
the Second Circuit has presented “a non-exhaustive list” of factors to consider: “(1)
whether a reasonable doctor or patient would perceive the medical need in question as
‘important and worthy of comment or treatment,’ (2) whether the medical condition
significantly affects daily activities, and (3) ‘the existence of chronic and substantial
pain.’” Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); see also
Black v. Petitinato, No. 16-CIV-3941 (BMC) (RLM), 2016 WL 3983590, at *3 (E.D.N.Y.
July 25, 2016) (quoting Chance).
In considering deliberate indifference claims, courts distinguish between
situations where no medical attention is given and situations where medical attention is
given, but is objectively inadequate. In the former, the court need only “examine
whether the inmate’s medical condition is sufficiently serious.” Salahuddin, 467 F.3d at
280. In the latter, however, the inquiry is “narrower”; for example, “if the prisoner is
13

receiving on-going treatment and the offending conduct is an unreasonable delay or
interruption in that treatment, the seriousness inquiry ‘focus[es] on the challenged delay
or interruption in treatment rather than the prisoner’s underlying medical condition
alone.’” Id. (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)).
The second element is subjective; the defendants “must be subjectively reckless
in their denial of medical care.” Spavone, 719 F.3d at 138; see also Darnell, 849 F.3d
at 32–33 (explaining that “deliberate indifference is properly equated with the mens rea
of ‘recklessness,’” and that the Cruel and Unusual Punishments Clause has a
“subjective intent” requirement). The inquiry is whether defendants “knew of and
disregarded an excessive risk to [a plaintiff's] health or safety” while “both aware of facts
from which the inference could be drawn that a substantial risk of serious harm existed,
and also drew the inference.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009)
(alterations and internal quotation marks omitted), overruled on other grounds by
Darnell, 849 F.3d 63; see also Farmer, 511 U.S. at 837 (“[T]he 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.”). The defendants must have acted
or failed to act “while actually aware of a substantial risk that serious inmate harm will
result.” Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (internal quotation marks
omitted). In contrast, “mere medical malpractice is not tantamount to deliberate
indifference,” unless “the malpractice involves culpable recklessness, i.e., an act or a
failure to act by the prison [medical professional] that evinces a conscious disregard of a
substantial risk of serious harm.” Chance, 143 F.3d at 703 (internal quotation marks
14

and citation omitted). Further, “mere disagreement over the proper treatment does not
create a constitutional claim,” and “[s]o 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.” Id.; Rodriguez v. Cty. of Westchester, No. 15-CIV.-9626 (PAE),
2017 WL 118027, at *8 (S.D.N.Y. Jan. 11, 2017).
The defendants first argue that Rogers has not alleged facts demonstrating a
serious medical need. See Defs.’ Mem. at 20. Rogers alleges that the tests at St.
Francis Hospital showed a fracture at T1 and disc bulges at C4 and C5. See Am.
Compl. ¶ 31. The doctor there admitted Rogers and was going to perform surgery
immediately, but did not do so because there was no contract for medical services
between the Department of Correction and St. Francis Hospital. See id. ¶¶ 32–33. In
addition, Rogers alleges that the condition caused him “extreme,” “excruciating,”
“constant,” “throbbing,” “exploding,” and “shooting” pain, which prevented Rogers from
sleeping, from “sit[ting] up in bed without help” and from “turn[ing] his head more than a
few inches to the left.” See id. ¶¶ 22, 27–28, 36. Rogers continued to experience pain
for at least eight months. See id. ¶¶ 27, 36, 39 (explaining that Rogers continued to ask
prison staff for help regarding Rogers’ ongoing pain from the time of his assault in
October 2013, until June 2014, and that he was discharged on July 3, 2014, with his
“injuries still unfixed”). Rogers also alleged that the “tingling . . . and numbness” in his
arm “affect[ed] his daily routine” by interfering with his ability to write. See id. ¶ 28; see
also id. at 36 (stating that Rogers “continued to have issues . . . doing daily routines”).
Thus, Rogers has alleged facts meeting all three of the Brock factors set forth above:
15

(1) a doctor at St. Francis Hospital evidently “perceive[d] the medical need in question
as ‘important and worthy of [ ] treatment,’” as would any “reasonable doctor or patient,”
due to the severity of the condition Rogers describes, (2) Rogers’ “medical condition
significantly affect[ed] daily activities,” namely, his abilities to sleep, sit up in bed, turn
his head, and write, and (3) Rogers’ “pain” was both “chronic and substantial.” See 315
F.3d at 162; see also Smith v. Carpenter, 316 F.3d 178, 185 n.8 (2d Cir. 2003)
(referring to pain that lasts six months as “chronic”). The court concludes that Rogers
has alleged sufficient facts to satisfy the sufficiently-serious element of the deliberate
indifference standard. See, e.g., Baskerville v. Blot, 224 F. Supp. 2d 723, 734 (S.D.N.Y.
2002) (claim for failure to properly evaluate back and neck injuries resulting from assault
allowed to proceed; accepting allegations as true, court held allegations are sufficient to
survive a motion to dismiss even though they may not be supported by evidence at later
stage of proceeding).
The defendants next contend that Rogers fails to allege sufficient facts to satisfy
the subjective component of the deliberate indifference standard with regard to Dr.
Naqvi and Nurse LaFrance. Defs.’ Mem. at 21–26. Rogers alleges that, following the
assault, Dr. Naqvi sutured his lacerations but ignored his complaints of head and neck
pain and dizziness. See Compl. ¶ 22. When Rogers felt a pop in his neck a few days
later and experienced numbness in his arm, Dr. Naqvi prescribed a muscle relaxant for
a few days and dismissed the condition as not serious, merely a matter of sleeping the
wrong way. See id. ¶¶ 25–26. When the muscle relaxant was ineffective, the medical
unit, including Dr. Naqvi and Nurse LaFrance, refused any further treatment or pain
16

medication from early November 2013, though February 2014. See id. ¶¶ 27–28. On
February 20, 2014, Rogers complained of numbness and shooting pain when he turned
his head. See id. ¶ 28. He was provided no medical treatment. See id. ¶ 28. Later
that day, Rogers was taken to the hospital where tests revealed bulging discs and a
fractured vertebra, conditions serious enough to warrant immediate surgery. See id. ¶
30–32. When Rogers was returned to the correctional facility, however, he received no
treatment for four months. See id. ¶¶ 36–39. Nurse LaFrance did nothing in response
to Rogers’ many complaints of pain. On June 24, 2014, Rogers was sent for an MRI,
but nothing was done to address his injuries. See id. ¶ 38. As he discharged from
custody less than two weeks later, the court can infer that the delays and failure to
provide treatment were associated with Rogers’ impending discharge.
The defendants characterize the claim as a disagreement regarding treatment.
See Defs.’ Mem. at 21, 23–24. Rogers alleges, however, that he was denied all
treatment for his neck injuries following the initial examination after he heard the pop in
his neck. Rogers’ allegations, accepted as true, plausibly allege that defendants Dr.
Naqvi and LaFrance were aware of his complaints of numbness and pain and of the
diagnosis from the doctor at St. Francis Hospital but provided no treatment.3 Where the
claim is a denial of treatment, the court need only consider whether the medical need

3

The defendants contend that Nurse LaFrance promised Rogers that she would order x-rays and
x-rays were taken which helped diagnose his condition. See Defs.’ Mem. at 25. The defendants ignore
the fact that x-rays were not taken until Rogers was transported to St. Francis Hospital—and that Rogers
only managed to get himself transported to St. Francis Hospital by manipulating a medical code, in an
attempt to seek the medical treatment Rogers had been denied by LaFrance. See Am. Compl. ¶¶ 29–30.
Nurse LaFrance had no part in ordering the x-rays and made no treatment decisions based on the x-ray
results.

17

was serious. See Salahuddin, 467 F.3d at 280. As the court determined above that
Rogers alleges sufficient facts to demonstrate a serious medical need, the defendants’
Motion to Dismiss is DENIED as to the claims for deliberate indifference to a serious
medical need.
E.

Qualified Immunity

Finally, the defendants argue that they are protected by qualified immunity. See
Defs.’ Mem. at 26. Qualified immunity attaches when an official’s conduct “‘does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). Although the Supreme Court’s case law “‘do[es]
not require a case directly on point’” before a right is considered to be clearly
established, “‘existing precedent must have placed the statutory or constitutional
question beyond debate.’” Id. 308 (quoting Ashcroft v.al-Kidd, 563 U.S. 731, 741
(2011)). Qualified immunity protects “‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. at 308 (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). The Supreme Court has cautioned the lower courts many times that “‘clearly
established law’ should not be defined ‘at a high level of generality.’” White v. Pauly,
137 S. Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). Rather, clearly
established law “must be ‘particularized’ to the facts of the case.” Id. at at 552 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In White, however, the district court
had denied qualified immunity at summary judgment. Id. at at 550.

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The defendants assert qualified immunity on a Motion to Dismiss. “Although,
‘usually, the defense of qualified immunity cannot support the grant of a Rule 12(b)(6)
motion for failure to state a claim upon which relief can be granted,’ a district court may
grant a Rule 12(b)(6) motion on the ground of qualified immunity if ‘the facts supporting
the defense appear on the face of the complaint.’” Hyman v. Abrams, 630 F. App’x 40,
42 (2d Cir. 2015) (quoting McKenna v. Wright, 386 F.3d 432, 435–36 (2d Cir. 2004)).
The court has concluded that Rogers alleged sufficient facts to state plausible
claims for failure to protect him from harm and deliberate indifference to serious medical
needs. If Rogers can present evidence to support those allegations, qualified immunity
would not be warranted. The court should consider qualified immunity on a motion to
dismiss with caution. Frequently the availability of qualified immunity is a fact-intensive
decision and, if the facts are in dispute, a fully developed record on summary judgment
may be needed to determine whether the factual dispute remains. See Birch v. City of
New York, 184 F. Supp. 3d 21, 28 (E.D.N.Y. 2016) (advocating caution when
considering qualified immunity on a motion to dismiss). As the defendants dispute
Rogers’ allegations, the court concludes that a decision on qualified immunity is
premature. The defendants may revisit their argument at summary judgment.
IV. CONCLUSION
The defendants’ Motion to Dismiss (Doc. No. 25) is GRANTED as to the claim
for injunctive relief and DENIED in all other respects.
The Clerk is directed to verify defendant Maiorana’s current work address with
the Department of Correction Office of Legal Affairs, mail a waiver of service of
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summons packet containing the Amended Complaint and this Ruling and Order to
defendant Maiorana at that address within twenty-one (21) days of this Order, and
report to the court on the status of the waiver request on the thirty-fifth (35) day after
mailing. If defendant Maiorana fails to return the waiver request, the Clerk shall make
arrangements for in-person service by the U.S. Marshals Service on her in her
individual capacity and the defendant shall be required to pay the costs of such service
in accordance with Federal Rule of Civil Procedure 4(d).
SO ORDERED.
Dated this 12th day of April 2017 at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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