Smith v. Doe et al
INITIAL REVIEW ORDER. Discovery due by 8/8/2017. Dispositive Motions due by 9/7/2017. Signed by Judge Michael P. Shea on 1/10/2017. (Connelly, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JANE DOE 1, et al.,
CASE NO. 3:16-cv-2027 (MPS)
JANUARY 10, 2017
INITIAL REVIEW ORDER
Plaintiff Laheem Smith, currently incarcerated at the MacDougall-Walker Correctional
Institution in Suffield, Connecticut, filed this case pro se under 42 U.S.C. § 1983 asserting
claims for deliberate indifference to a serious medical need. Plaintiff names as defendants Nurse
Jane Doe 1 and Head Nurse Jane Doe 2 from New Haven Correctional Center, Physician’s
Assistant Kevin McCrystal from MacDougall, and the Review Committee of the University of
Connecticut Health Center. He seeks damages and injunctive relief. The complaint was
received by the Court on December 12, 2016. The plaintiff’s motion to proceed in forma
pauperis was granted on December 21, 2016. (ECF No. 6.)
The Court must review prisoner civil complaints and dismiss any portion of the
complaint that is frivolous or malicious, that 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. 28
U.S.C. § 1915A. In reviewing a pro se complaint, the Court must assume the truth of the
allegations, and interpret them liberally to “raise the strongest arguments [they] suggest.”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations are not
required, the complaint must include sufficient facts to afford the defendants fair notice of the
claims and the grounds upon which they are based and to demonstrate a plausible right to relief.
Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not
sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts
to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it
is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise
the strongest arguments that they suggest.’” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude
for pro se litigants).
On February 20, 2016, Plaintiff injured his left leg while playing basketball at New
Haven Correctional Center. He was taken to the medical unit in a wheelchair.
Plaintiff told Nurse Doe 1 that he heard and felt something pop inside his left leg and
experienced severe pain. Defendant Doe 1 asked Plaintiff if he could move his ankle. In
response, Plaintiff stated that the injury was in his leg. Defendant Doe 1 told Plaintiff that he
was not a doctor and should not tell her how to diagnose him. Plaintiff asked to be taken to the
hospital. Defendant Doe 1 gave Plaintiff ibuprofen and ordered him to return to his housing unit.
To do so, Plaintiff had to walk up six flights of stairs.
The following day, Plaintiff was given one crutch but was told that he could not use the
crutch outside his cell. Plaintiff submitted numerous complaints to the medical unit complaining
of pain and his injury.
Plaintiff was called to the medical unit on March 3, 2016, where he was seen by Head
Nurse Doe 2. She did not order x-rays or an MRI. Defendant Doe 2 diagnosed Plaintiff with a
partially torn Achilles tendon and told him that she would order a special boot so his leg would
On March 14, 2016, Plaintiff was transferred to the Walker building at MacDougallWalker Correctional Institution. He informed the medical unit of his injury and stated that he
expected to receive the special boot ordered by defendant Doe 2. On April 17, 2016, Plaintiff
was called to the medical unit and given a special boot to wear for six weeks. He was told that
defendant Doe 2 never ordered a boot for him.
On May 9, 2016, Plaintiff was transferred to the MacDougall building. He informed the
medical unit of his injuries and told them that the six week period for wearing the boot would
end on May 19, 2016. A nurse recommended that he see a specialist before having the boot
removed. In June 2016, Plaintiff saw defendant McCrystal. Plaintiff told him that he continued
to experience severe pain. Defendant McCrystal prescribed ibuprofen and told Plaintiff that he
would schedule an x-ray.
On June 13, 2016, x-rays were taken of Plaintiff’s left ankle. The x-rays revealed a
chronic injury to the Achilles tendon as well as insertional tendonitis of the Achilles tendon. The
doctor interpreting the x-ray suggested that an MRI could be performed to specifically evaluate
the tendon. Upon learning the results of the x-ray, Plaintiff again requested an MRI.
Defendant McCrystal submitted a request for an MRI to the Review Committee. In the
request, defendant McCrystal falsely stated that Plaintiff had pending litigation against the
University of Connecticut and Department of Correction. The Review Committee denied the
request for MRI.
Plaintiff alleges that the defendants Doe 1, Doe 2, and McCrystal were deliberately
indifferent to his serious medical need in the following ways. Defendant Doe 1 failed to provide
proper care, failed to ensure that Plaintiff was seen by a doctor, denied emergency medical care,
and forced Plaintiff to walk up six flights of stairs. Defendant Doe 2 failed to have Plaintiff seen
by a doctor and did not order the special boot. Defendant McCrystal ordered x-rays of Plaintiff’s
left ankle rather than his left leg, and improperly stated in the MRI request that Plaintiff had a
pending lawsuit. Plaintiff also alleges that defendant Review Committee retaliated against him
by denying the MRI request because of the false statement.
To state a claim for deliberate indifference to a serious medical need, Plaintiff 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)). There are both objective and subjective components to the
deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S.
294, 298 (1991). The condition must produce death, degeneration or extreme pain. See
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Subjectively, the defendants 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 262, 279-80 (2d Cir. 2006).
Negligence that would support a claim for medical malpractice does not rise to the level of
deliberate indifference and is not cognizable under section 1983. See id. Nor does a difference
of opinion regarding what constitutes an appropriate response and treatment constitute deliberate
indifference. See Ventura v. Sinha, 379 F. App’x 1, 2-3 (2d Cir. 2010); Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998). While a disagreement over treatment is not cognizable under
section 1983, the treatment actually given must be adequate. See Chance, 143 F.3d at 703.
Plaintiff alleges that the x-ray revealed chronic injury to the Achilles tendon and that
Defendant Doe 2 diagnosed a partial tear of the Achilles tendon. The Second Circuit has held
that a ruptured Achilles tendon is a serious medical need. See Hemmings v. Gorczyk, 134 F.3d
104, 109 (2d Cir. 1998). Other courts have found that a torn Achilles tendon also constitutes a
serious medical need. See, e.g., Bradford v. Owens, No. 3:11-cv-P488-DJH, 2016 WL 7015662,
at *8 (W.D. Ky. Nov. 29, 2016) (citing cases). The Court considers Plaintiff’s allegations
sufficient to show a serious medical need.
Defendants Doe 1 and Doe 2 were responsible for Plaintiff’s medical care for six weeks.
They did not ensure that he was seen by a doctor or that his complaints of severe pain were
addressed. The allegations are sufficient to state a plausible claim for deliberate indifference to a
serious medical need against them.
Defendant McCrystal ordered some treatment for Plaintiff but included a false statement
regarding litigation activity in the MRI request. The Court can discern no medical relevance for
this statement. Thus, the statement appears to have been included to ensure that the request was
denied. This allegation supports the subjective component of the deliberate indifference
standard. The deliberate indifference claim will proceed as to defendant McCrystal.
Finally, Plaintiff asserts a retaliation claim against defendant Review Committee of the
University of Connecticut Health Center. He contends that the Review Committee denied the
MRI request because of the false statement regarding pending litigation. Section 1983 requires
that each defendant be a person acting under color of state law. 42 U.S.C. § 1983 (“Every person
who, under color of any statute, ordinance, regulation, custom or usage, of any State… subjects
or causes to be subjected….). State agencies, however, are not persons within the meaning of
section 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (state agencies
cannot be sued under section 1983); Ferla v. Correctional Managed Health Care, No. 3:15-cv1303(MPS), 2015 WL 5826812, at *2 (D. Conn. Oct. 2, 2015) (University of Connecticut Health
Center and its divisions are not persons within the meaning of section 1983). Thus, the Review
Committee is not a person subject to suit. The claim against the Review Committee is dismissed.
Plaintiff may amend his complaint to reassert this claim provided he can identify the members of
the committee who denied his request.
The retaliation claim against defendant Review Committee is DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1). The case will proceed on the claims for deliberate indifference to a
serious medical need against defendants Doe 1, Doe 2 and McCrystal. Plaintiff may amend his
complaint to reassert his retaliation claim provided he can identify the persons on the Review
Committee who denied his request.
The Court enters the following orders:
The Clerk shall verify the current work address for defendant McCrystal with
the Department of Correction Office of Legal Affairs, mail a waiver of service of process request
packet to him at the confirmed addresses within twenty-one (21) days of this Order, and report
to the court on the status of the waiver requests on the thirty-fifth (35) day after mailing. If the
defendant fails to return the waiver request, the Clerk shall make arrangements for in-person
service by the U.S. Marshals Service on the defendant in his 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).
The Clerk shall prepare a summons form and send an official capacity service
packet to the U.S. Marshal Service. The U.S. Marshal is directed to effect service of the
complaint on the defendants in their official capacities at the Office of the Attorney General, 55
Elm Street, Hartford, CT 06141, within twenty-one (21) days from the date of this order and to
file a return of service within thirty (30) days from the date of this order.
The Clerk shall send written notice to plaintiff of the status of this action, along
with a copy of this Order.
The Clerk shall send a courtesy copy of the Complaint and this Ruling and Order
to the Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
Defendant shall file his response to the complaint, either an answer or motion to
dismiss, within sixty (60) days from the date the waiver form is sent. If he chooses to file an
answer, he shall admit or deny the allegations and respond to the cognizable claim recited above.
He also may include any and all additional defenses permitted by the Federal Rules.
Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be
completed within seven months (210 days) from the date of this order. Discovery requests need
not be filed with the court.
All motions for summary judgment shall be filed within eight months (240 days)
from the date of this order.
Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a
dispositive motion within twenty-one (21) days of the date the motion was filed. If no response is
filed, or the response is not timely, the dispositive motion can be granted absent objection.
If plaintiff changes his address at any time during the litigation of this case, Local
Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so can result
in the dismissal of the case. Plaintiff must give notice of a new address even if he is
incarcerated. Plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. It is
not enough to just put the new address on a letter without indicating that it is a new address. If
plaintiff has more than one pending case, he should indicate all of the case numbers in the
notification of change of address. Plaintiff should also notify the defendant or the attorney for
the defendant of his new address.
Plaintiff shall utilize the Prisoner Efiling Program when filing documents with the
The Court cannot effect service on defendants Doe 1 and Doe 2 without their
names and current work addresses. Plaintiff is directed to seek this information during discovery
and file a notice identifying defendants Doe 1 and Doe 2 when he obtains the information. Once
the defendants have been identified, the Court will issue an order for service.
SO ORDERED this 10th day of January 2017 at Hartford, Connecticut.
Michael P. Shea
United States District Judge
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