Cerilli v. Malloy et al
Filing
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INITIAL REVIEW ORDER Discovery due by 8/18/2017 Dispositive Motions due by 9/17/2017 Signed by Judge Stefan R. Underhill on 1/17/2017.(Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RAYMOND J. CERILLI,
Plaintiff,
v.
DANNEL P. MALLOY, et al.,
Defendants.
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No. 3:16-cv-2087 (SRU)
INITIAL REVIEW ORDER
Raymond J. Cerilli, currently confined at MacDougall-Walker Correctional Institution in
Suffield, Connecticut, filed this case pro se under 42 U.S.C. § 1983. Cerilli alleges that the
defendants have been deliberately indifferent to his serious medical and mental health needs.
Cerilli names as defendants Governor Dannel P. Malloy, Commissioner Scott Semple, Dr. G.
Gerbino, Dr. G. Valletta, APRN Lea Pannella, APRN Tim Bombard, PRN J. Augusto, Dr. Ted
Lawlor, Supervisor J. Wu, and John Doe Mental Health 1-99. The complaint was filed on
December 16, 2016. Cerilli’s motion to proceed in forma pauperis was granted on January 4,
2017.
Under section 1915A of Title 28 of the United States Code, I 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. 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).
I.
Allegations
Cerilli alleges that he has been denied “real mental health medication.” ECF No. 1 at 9, ¶
12. Instead Drs. Gerbino and Valletta have prescribed Elavil, which Cerilli describes as poison.
Cerilli experienced “big blood marks” over his body after taking Elavil. Id. at 13, ¶ 27(5).
Dr. Lawlor wants to prescribe a new heart medication and more “fake mental health
drugs” for Cerilli. Id. at 17-18, ¶ 43. September 2014 medical records attached to the complaint
indicate that Cerilli believes that only oxycodone are fentanyl “real” medications. Id. at 31.
II.
Analysis
The Prison Litigation Reform Act (PLRA) amended the statute governing proceedings
filed in forma pauperis. In relevant part, Section 804(d) of the PLRA amended 28 U.S.C. § 1915
by adding the following subsection:
(g) In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
That provision of the PLRA requires the denial of Cerilli’s motion to proceed in forma pauperis
in this case. Cerilli previously has had more than three cases or appeals dismissed as frivolous.
See Cerilli v. Meachum, 3:95-cv-00113 (DJS) (dismissed January 19, 1995); Cerilli v.
Connecticut, 3:98-cv-01370 (AHN) (dismissed June 16, 1999); Cerilli v. Williams, 3:98-cv01703 (DJS) (dismissed February 26, 1999); and Cerilli v. Connecticut, 3:99-cv-01058 (GLG)
(dismissed October 14, 1999).
Because the three strikes provision applies, Cerilli may not bring the present action
without payment of the filing fee absent allegations of “imminent danger of serious physical
injury.” See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (“indigent three-strikes
prisoner [may] proceed IFP in order to obtain a judicial remedy for an imminent danger”). To
proceed without prepayment of the filing fee, Cerilli must meet two requirements: he must show
(1) the imminent danger of serious physical injury he alleges is fairly traceable to unlawful
conduct alleged in the complaint, and (2) that a favorable judicial outcome would redress the
injury. See id. at 296–97. In addition, the danger of imminent harm must be present at the time
the complaint is filed. See id. at 296.
The Court granted Cerilli’s motion to proceed in forma pauperis because he included as
defendants health care providers at his current place of incarceration, and alleged that he is
suffering serious reactions to his medications. The complaint, however, contains no specific
allegations against many defendants. Defendants Semple, Malloy, Bombard, Pannella, Augusto
and Wu are not referenced in the statement of facts. Although some of these defendants are
referenced in the attached documents, it is not clear how these defendants have subjected Cerilli
to an imminent danger of serious physical harm in December 2016.
For example, Cerilli has attached to his complaint an inmate request that was denied by
defendant Augusto. Cerilli dated the grievance November 15, 2015, but it was rejected on
October 26, 2015. ECF No. 1 at 104. Defendant Augusto also dealt with two other attached
inmate requests, noting on one that Cerilli had been seen by the doctor in response to the request
and rejecting the other as a duplicate. The only action by Commissioner Semple is a letter dated
July 18, 2014, in which Commissioner Semple informed Cerilli of the proper procedures to
request Protective Custody, seek Health Services and make FOI requests. Id. at 40. He also was
copied on a July 2016 letter to Cerilli from Mary Ellen Castro in which she responded to a letter
Cerilli sent the Commissioner, id. at 46, and an October 2015 inmate request in which Cerilli
complains about injuries suffered in a 2014 truck accident. Id. at 109.
I cannot determine from the current complaint whether Cerilli was in imminent danger of
serious physical harm on December 16, 2016, the day he filed his complaint. The attached
exhibits, including medical records from 1998 through 2016, do not clarify the allegations.
Accordingly, Cerilli is directed to file an amended complaint to clarify his claims. The amended
complaint shall include specific allegations against each defendant explaining what actions each
defendant took, or failed to take, that caused Cerilli to be in imminent danger of serious physical
harm in December 2016. The current complaint contains references to other complaints filed
about the same time. Claims asserted in those cases should not be included or referenced in the
amended complaint.
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III.
Motion for Copy
Cerilli has filed a document seeking a copy of all documents filed in this case. The
caption includes the case numbers from five cases. I will consider the request only as it pertains
to this case. If Cerilli seeks documents from other cases, he must file motions in those cases.
Prisoners are required to utilize the Prisoner Efiling Program when filing documents with
the Court. See CTAO-21 (issued June 22, 2016). Under the program, prison officials scan and
email prisoner documents to the Court. The original document is returned to the prisoner for his
records. Cerilli has chosen to ignore this requirement and mail his documents to the Court.
Thus, he is responsible for retaining a copy of his documents.
Because the Court has ordered Cerilli to amend his complaint, the Court will provide him
a copy of the complaint in this case. Cerilli may obtain a copy of any other document by
contacting the Clerk’s Office to ascertain the copy costs for that document.
IV.
Conclusion
Cerilli is ordered to file an amended complaint to clarify his claims. The amended
complaint shall include specific allegations against each defendant explaining what actions each
defendant took, or failed to take, that caused Cerilli to be in imminent danger of serious physical
harm in December 2016. Cerilli should not include or reference claims asserted in other cases he
has filed. Cerilli shall file the amended complaint within thirty (30) days from the date of this
order using the Prisoner Efiling Program. Failure to do so will result in the dismissal of this
case.
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Cerilli’s motion for copy [ECF No. 7] is GRANTED in part. The Clerk is directed to
send Cerilli a copy of the complaint with this order. The motion is denied with regard to any
other document filed in this case and as to documents in any other cases filed by Cerilli.
SO ORDERED this 17th day of January 2017 at Bridgeport, Connecticut.
/s/STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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