Harnage v. Caldonero et al

Filing 9

RULING AND ORDER re 1 Complaint filed by James A. Harnage. The Clerk is directed to enter judgment for the defendants and close this case. Signed by Judge Alvin W. Thompson on 5/17/2017.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES HARNAGE,
Plaintiff,

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v.
LISA CALDONERO, ET AL.,
Defendants.

Case No. 3:16cv1876(AWT)

RULING AND ORDER
The plaintiff, James Harnage, is currently incarcerated at
Corrigan-Radgowski Correctional Institution in Uncasville,
Connecticut.

He has filed a complaint pursuant 42 U.S.C. § 1983

naming Medical Staff Member Lisa Caldonero, Jane Does 1-3 and
John Does 1-3, Nurses Francis, Caroline, Nikki, Greene, Marissa
and James, Physician Assistant Rob and Drs. Naqvi and Pillai as
defendants.

For the reasons set forth below, the complaint is

being dismissed.
Pursuant to 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).
The plaintiff asserts that he was confined at MacDougallWalker Correctional Institution (“MacDougall-Walker”) between
August 2012 and July 2016.

He generally contends that he
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challenged “deficiencies in his medical care” during this period
by filing grievances and legal actions.

Compl., ECF No. 1 at 4,

¶ 16.
On May 27, 2013, the plaintiff observed a medical staff
member at MacDougall-Walker inject an inmate with a dose of
insulin and then use the same needle to withdraw another dose of
insulin from the same bottle and inject it into a second inmate.
The plaintiff immediately reported to prison officials at
MacDougall-Walker that the medical staff member had contaminated
the bottle of insulin using this method.

This incident of

insulin contamination allegedly required medical officials at
MacDougall-Walker to review and revise policies and implement
more stringent guidelines regarding the treatment of diabetic
inmates.

The plaintiff claims that some medical staff at

MacDougall-Walker were angry because they believed that the
extent of the response to the incident was excessive and the new
guidelines governing treatment of diabetic inmates who required
insulin were unnecessary.
The plaintiff contends that immediately after he reported
the incident of insulin contamination, Medical Staff Members
Caldonero, Jane Does 1-3 and John Does 1-3, Nurses Francis,
Caroline, Nikki, Greene, Marissa and James and Physician
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Assistant Rob began to give him a hard time with regard to his
requests for refills and renewals of his various prescriptions.
These defendants would either deny or unreasonably delay the
renewals or refills of all of his prescriptions, but in
particular his prescription for Ibuprofen.

The plaintiff states

that he had been prescribed Ibuprofen to treat pain in his back,
hip and wrist.
On several occasions, Dr. Naqvi or Dr. Pillai examined the
plaintiff and renewed several of his prescriptions, including
his prescription for Ibuprofen.

The plaintiff claims that, on

these occasions, medical staff never dispensed Ibuprofen to him
and failed to dispense the other prescribed medications in a
timely manner.
The delays in refilling, renewing or dispensing the
medications sometimes lasted for five to six weeks.

The

plaintiff claims that when he was unable to take Ibuprofen, he
experienced severe pain and his dominant hand became swollen and
difficult to move.
The plaintiff contends that defendants failed to refill or
renew his medication prescriptions and dispense the medications
in a timely manner in retaliation for his bringing the insulin
contamination incident to the attention of prison/medical
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officials.

The plaintiff also believes that the defendants

intentionally delayed refilling or renewing his prescriptions in
response to a mandate, initiated by Dr. Wu, directing medical
staff at all prison facilities to “take drastic measures to
reduce costs.”

Compl., ECF No. 1 at 5, ¶ 22.

The plaintiff claims that he is indigent and cannot buy
Ibuprofen from the commissary.

He states that he was successful

in exhausting his administrative remedies regarding his claim of
untimely refills and renewals of his prescription for Ibuprofen
and other medications.
The plaintiff contends that the defendants conspired to
deny him medical treatment in violation of his Eighth Amendment
rights, retaliated against him in violation of his First and
Seventh Amendment rights and failed to provide him with the same
treatment provided to other inmates who were similarly situated
in violation of the Equal Protection Clause of the Fourteenth
Amendment rights.

He also claims that the defendants violated

Article 1, §§ 1, 4, 5, 10, 14, 20 of the Connecticut
Constitution.

He sues the defendants in their individual

capacities only.
I.

Seventh Amendment Claim

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The plaintiff alleges that the defendants violated his
rights under the Seventh Amendment to the Constitution.

The

Seventh Amendment provides: “In Suits at common law . . . the
right of trial by jury shall be preserved, and no fact tried by
a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.”
The plaintiff states that he “is willing to waive his right to
[a] jury [trial].”

Compl., ECF No. 1 at 9.

The plaintiff has asserted no facts to suggest a plausible
claim that any of the defendants violated his Seventh Amendment
right to a jury trial.

Thus, the Seventh Amendment claim is

being dismissed as lacking an arguable legal or factual basis.
See 28 U.S.C. § 1915A(b)(1).
II.

Fourteenth Amendment Claim
The plaintiff generally contends that the defendants

refused to provide him with “the same and equal adequate medical
care as afforded all other inmates similarly situated to [him]”
in violation of his right to equal protection under the
Fourteenth Amendment.

The Supreme Court has recognized that

“[t]he Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws,’ which is
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essentially a direction that all persons similarly situated
should be treated alike.”

City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457
U.S. 202, 216 (1982)).

“This provision does not mandate

identical treatment for each individual.”

Muhmmaud v. Murphy,

632 F. Supp. 2d 171, 178 (D. Conn. 2009) (citing City of
Cleburne, 473 U.S. at 439–40).
In order to prove a violation of the Equal Protection
Clause, a plaintiff must demonstrate evidence of “purposeful
discrimination . . . directed at an identifiable or suspect
class.”

Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.

1995)(citations omitted).

Thus, to prevail on an equal

protection claim, a plaintiff must allege that (1) compared with
others similarly situated he or she was treated differently; and
(2) that such different treatment was based on impermissible
considerations such as “race, religion, national origin or some
other constitutionally protected characteristic.”

See

Colantuono v. Hockeborn, 801 F. Supp. 2d 110, 118 (W.D.N.Y.
2011) (citation omitted).
The plaintiff claims that the defendants did not provide
him with the same medical treatment that they provided to other
inmates.

Without factual support, he states that the other
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inmates were similarly situated to him.

He does not allege that

the defendants treated him differently because of his membership
in a protected class or based on any other impermissible
characteristic.
A plaintiff who is not a member of a protected class,
however, may also state an equal protection violation under the
“class of one” theory.
U.S. 562, 564 (2000).

Village of Willowbrook v. Olech, 528
In Village of Willowbrook v. Olech, “the

Supreme Court recognized that plaintiffs state an equal
protection claim where they allege that they were intentionally
treated differently from other similarly-situated individuals
without any rational basis.”

Clubside v. Valentin, 468 F.3d

144, 159 (2d Cir. 2006) (citation omitted).

“Accordingly, to

succeed on a class-of-one claim, a plaintiff must establish that
(i) no rational person could regard the circumstances of the
plaintiff to differ from those of a comparator to a degree that
would justify the differential treatment on the basis of a
legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to
exclude the possibility that the defendants acted on the basis
of a mistake.”

Id. (citing Neilson v. D'Angelis, 409 F.3d 100,

105 (2d Cir. 2005), overruled on other grounds by Appel v.
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Spiridon, 531 F.3d 138 (2d Cir. 2008).

The plaintiff's

circumstances and the other person's circumstances must be
“prima facie identical.”

Id. (internal quotation marks and

citation omitted).
To the extent that the plaintiff is comparing himself to
other inmates who were confined at MacDougall-Walker and
received medical treatment during the same time period he was
confined at that facility, he has not alleged sufficient facts
to show the requisite degree of similarity to those inmates.
See Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55,
59 (2d Cir. 2010)(affirming dismissal of equal protection claim
on ground that mere allegation of less favorable treatment than
“similarly situated” persons failed to state plausible “class of
one” equal protection claim) (citation omitted); Riley v.
Roycroft, No. 16 CV 2227 (VB), 2017 WL 782917, at *8 (S.D.N.Y.
Feb. 28, 2017)(conclusory allegation that inmate was denied
medical care that was provided to other similarly situated
inmates did not state viable equal protection claim because
inmate “fail[ed] to allege facts that demonstrate[d] a
substantial similarity between himself and the other inmates
with whom he compare[d] himself”); Rankel v. Town of Somers, 999
F. Supp. 2d 527, 545 (S.D.N.Y. 2014) (dismissing class of one
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equal protection claim because “[p]laintiff has provided no
facts from which it may be plausibly inferred that these
Neighbor Defendants or any other citizens were similarly
situated. He provides no information about their properties,
situations or conduct that would support the conclusory
statement that they were similarly (let alone extremely
similarly) situated.”)(citation omitted).

The plaintiff’s

conclusory allegation that other inmates who received medical
treatment were similarly situated is insufficient to state a
plausible equal protection “class of one” claim.
The court concludes that the plaintiff has failed to state
a plausible claim that the defendants violated his equal
protection rights.

Accordingly, the Fourteenth Amendment equal

protection is being dismissed for failure to state a claim upon
which relief may be granted.

See 28 U.S.C. § 1915A(b)(1).

III. Remaining Section 1983 Claims
The plaintiff alleges that the failure of the defendants to
timely refill and renew his prescriptions and dispense his
medications, particularly his prescription for Ibuprofen,
constituted deliberate indifference to medical needs.

In

addition, he contends that the delays in refilling, renewing and
dispensing his medications by defendants Caldonero, Jane Does 110

3, John Does 1-3, Francis, Caroline, Nikki, Greene, Marissa,
James and Rob constituted retaliation for the exercise of his
First Amendment rights to file a grievance, to file a lawsuit or
to report the contamination of medication used to treat inmates.
A review of the court docket reflects that on September 13,
2016, the plaintiff filed a civil rights action in this court
naming Medical Staff Member Lisa Caldonero, Jane Does 1-3 and
John Does 1-3, Nurses Francis, Caroline, Nikki, Greene, Marissa
and Tawanna, Physician Assistants Rob and McChrystal, Drs.
Naqvi, Pillai and O’Halloran, Medical Director Dr. Wu, Health
Services Administrator Lightner and Correctional Managed Health
Care as defendants.

See Harnage v. Wu, et al., Case No. 3:16-

cv-1543 (AWT), Compl., ECF No. 1 at 1-5.
A district court enjoys substantial discretion to manage
its docket efficiently to avoid duplicate litigation.

See

Taylor v. Rodriguez, 238 F.3d 188, 197 (2d Cir. 2001)
(acknowledging that a district court may dismiss a second suit
as duplicative of an earlier suit).

A plaintiff has “no right

to maintain two actions on the same subject in the same court,
against the same defendant at the same time.”

Curtis v.

Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000).

The Second

Circuit has concluded that “[t]he complex problems that can
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arise from multiple federal filings do not lend themselves to a
rigid test, but require instead that the district court consider
the equities of the situation when exercising its discretion.”
Id. (citations omitted).

Generally, the first suit to be filed

“should have priority absent the showing of balance of
convenience . . . or . . . special circumstances” in favor of
the second action.

Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.

1991) (internal quotation marks and citation omitted).
If it is possible for a plaintiff to amend the complaint in
each action to contain all of the issues and parties presently
contained in either action, the continuation of the first action
to be filed is favored.

See Hammett v. Warner Brothers

Pictures, Inc., 176 F.2d 145, 150 (2d Cir. 1949); Gyadu v.
Hartford Ins. Co., No. 3:96cv1755 (D. Conn. Apr. 21, 1997)
(Squatrito, J.) (dismissing case under “prior pending action
doctrine” where plaintiff could raise all causes of action by
amended complaint in his first action), aff’d, 133 F.3d 907 (2d
Cir. 1998).

To determine whether a claim is barred by the prior

pending action doctrine, the court may rely on a comparison of
the pleadings filed in the two actions.

See Connecticut Fund

for the Environment v. Contract Plating Co., 631 F. Supp. 1291,
1293 (D. Conn. 1986).
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The complaint filed in this action and the complaint filed
in the prior action include the same deliberate indifference to
medical needs claims with regard to renewals and refills of
medical prescriptions for various medical conditions, including
the prescription for Ibuprofen with respect to the plaintiff’s
back, hip and wrist pain.

In addition, both the complaint in

this action and the complaint in the prior action include a
claim that medical staff at MacDougall-Walker discontinued or
refused to renew or refill prescriptions in retaliation for the
plaintiff reporting an incident or for filing a lawsuit.

All of

the defendants named in this action, except for Nurses Francis
and James are listed as defendants in the prior action.1

The

court can discern no reason why the plaintiff cannot amend the
complaint in prior case to add Nurses James and Francis as
defendants and to add the retaliation claim against Medical
Staff Members Caldonero, Jane Does 1-3 and John Does 1-3, Nurses
Francis, Caroline, Nikki, Greene, Marissa and James and
Physician Assistant Rob.

The deliberate indifference to medical

needs and retaliation claims in the present action are being

The court notes that the plaintiff refers to a Nurse named
James in the body of the complaint. See Harnage v. Wu, et al.,
Case No. 3:16cv1543(AWT), Compl., ECF No. 1 at 12-13.
1

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dismissed under the prior pending action doctrine.

See 28

U.S.C. § 1915A(b)(1).
IV.

Section 1985 and 1986 Claims
In addition to 42 U.S.C. § 1983, the plaintiff states that

the court has jurisdiction pursuant to 42 U.S.C. §§ 1985 and
1986.

The first two subsections of 42 U.S.C. § 1985 clearly are

not relevant to this action.

Section 1985(1) prohibits

conspiracies to prevent federal officials from performing their
duties and section 1985(2) prohibits conspiracies intending to
deter witnesses from participating in state or federal judicial
proceedings.

The plaintiff is not a federal official and his

claims are not related to participation of witnesses in judicial
proceedings.
In order to state a claim under section 1985(3), the
plaintiff must allege: (1) the defendants were part of a
conspiracy; (2) the purpose of the conspiracy was to deprive a
person or class of persons of the equal protection of the laws,
or the equal privileges and immunities under the laws; (3) an
overt act taken in furtherance of the conspiracy; and (4) an
injury to his person or property, or a deprivation of a right or
privilege.
(1971).

See Griffin v. Breckenridge, 403 U.S. 88, 102-03
Furthermore, the plaintiff must show that the
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conspiracy was motivated by a “racial, or perhaps otherwise
class-based invidiously discriminatory animus.”

Id. at 102.

Section 1985(3) may not be construed as a “general federal tort
law”; it does not provide a cause of action based on the denial
of due process or other constitutional rights.

See id. at 101-

02.
To the extent that the plaintiff has alleged that any of
the defendants acted together to violate his rights, those
allegations are conclusory.

Furthermore, there are no

allegations that the actions of any defendant were taken because
of the plaintiff’s race or on the basis of other class-based
discriminatory animus.

Thus, the plaintiff fails to state a

claim cognizable under section 1985(3).
is being dismissed.

The Section 1985 claim

See 28 U.S.C. § 1915A(b)(1).

Section 1986 provides no substantive rights.

Rather, it

provides a remedy for the violation of section 1985.

Thus, a

prerequisite for an actionable claim under section 1986 is a
viable claim under section 1985.

See Dwares v. New York, 985

F.2d 94, 101 (2d Cir. 1993) (“Liability under § 1986 . . . is
dependent on the validity of a claim under § 1985.”) (citation
omitted).

Because the plaintiff has not stated a section 1985

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claim, his section 1986 claim is not actionable and is being
dismissed.

See 28 U.S.C. § 1915A(b)(1).
Orders

In accordance with the foregoing analysis, the court enters
the following orders:
(1)

The Seventh Amendment claim, Fourteenth Amendment

equal protection claim and the claims pursuant to 42 U.S.C. §§
1985 and 1986 are hereby DISMISSED pursuant 28 U.S.C. §
1915A(b)(1), and the Eighth and First Amendment claims against
all defendants are hereby DISMISSED as barred by the prior
pending action doctrine pursuant to 28 U.S.C. § 1915A(b)(1).
The plaintiff may move to file an amended complaint in Harnage
v. Wu, et al., Case No. 3:16-cv-1543 (AWT) to elaborate on his
deliberate indifference to medical needs claim as it pertains to
refills and renewals of the prescription for pain medication and
to assert the new retaliation claim.

The court declines to

exercise supplemental jurisdiction over the remaining state law
claims.

See 28 U.S.C. § 1367(c)(3); Lundy v. Catholic Health

Sys. of Long Island Inc., 711 F.3d 106, 117–18 (2d Cir. 2013).
If the plaintiff chooses to appeal this decision, he may not do
so in forma pauperis, because such an appeal would not be taken
in good faith.

See 28 U.S.C. § 1915(a)(3).
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(2)

The Clerk is directed to enter judgment for the

defendants and close this case.
It is so ordered.
Signed this 17th day of May, 2017, at Hartford,
Connecticut.
___________/s/AWT___________
Alvin W. Thompson
United States District Judge

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