Madore v. Semple et al

Filing 7

INITIAL REVIEW ORDER. Discovery due by 9/5/2017. Dispositive Motions due by 10/4/2017. Signed by Judge Michael P. Shea on 2/6/2017. (Connelly, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ROLAND MADORE,
Plaintiff,
v.
SCOTT SEMPLE, et al.,
Defendants.

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CASE NO. 3:17-cv-129 (MPS)

FEBRUARY 6, 2017

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INITIAL REVIEW ORDER
Plaintiff Roland Madore, currently incarcerated at the Osborn Correctional Institution in
Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983 asserting claims for
deliberate indifference to a serious medical need. The plaintiff names as defendants
Commissioner Scott Semple, Nurse Dwiller, Gary Freston, Monica Faranella, Sayeed Naqvi,
Johnny Wu, Richard Furey, Dr. Ruiz, and Correctional Officer Hammond. He seeks damages
and injunctive relief. The complaint was received by the Court on January 27, 2017. The
plaintiff’s motion to proceed in forma pauperis was granted on February 1, 2017. (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).
I.

Allegations
Commissioner Semple has entered a contract with Johnny Wu of the University of

Connecticut Health Center to form Correctional Managed Health Care (“CMHC”), which
provides medical service to all Connecticut inmates. As part of the contract, Commissioner
Semple agreed to assume liability for any judgments against CMHC regarding inmate medical
and dental care. CMHC, through defendants Wu, Freston, Faranella and Naqvi, has developed a
Utilization Review Committee (“URC”) that denies all requests for services at the University of
Connecticut Health Center. Inmates must file medical habeas petitions in state court before they
can obtain needed medical services.
A.

Sleep Apnea

On August 2, 2014, the plaintiff requested a sleep apnea test. On August 6, 2014, Nurse
Dwiller told the plaintiff that, according to his medical chart, he had been diagnosed with sleep
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apnea in 2013. The plaintiff contends that this is false.
On September 25, 2014, Dr. Wright ordered a pulse oximeter study to measure the
amount of oxygen in the plaintiff’s blood. The test had to be performed twice, on September 30,
2014, and again on October 7, 2014, because the test machine malfunctioned.
On November 4, 2014, defendants Wu, Faranella and Naqvi denied Dr. Wright’s request
for a sleep study at the University of Connecticut Health Center. On January 13, 2015, the
plaintiff filed a medical habeas action in state court seeking a sleep study, hernia surgery, and a
mouth guard. On January 28, 2015, the plaintiff went to the University of Connecticut Health
Center for the sleep study, which revealed severe obstruction sleep apnea. Defendants Wu,
Faranella and Naqvi denied requests for a sleeping wedge or double pillows.
On February 18, 2015, Dr. Wright requested a sleep apnea machine, or C-PAP machine,
for the plaintiff. On March 6, 2015, a C-PAP machine was delivered to the plaintiff. He refused
the machine because it did not have a humidifier. On March 30, 2015, a C-PAP machine was
delivered to the plaintiff. Again, he returned the machine because it did not have a humidifier.
On May 21, 2015, the plaintiff met with Dr. Wright who appealed the denial of a C-PAP
machine with a humidifier. On June 8, 2015, Dr. Wright told the plaintiff that the University of
Connecticut Health Center had approved a C-PAP machine with a humidifier. The plaintiff
received the machine on June 18, 2015, but it had the wrong pressure. On July 15, 2015, the
plaintiff still needed a machine adjusted to the proper pressure. On August 11, 2015, he wrote a
letter asking about the status of the machine. Nurse Lewis said she would discuss it with Dr.
Wright. The plaintiff finally received the correct C-PAP machine sometime in September or
October 2015.
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B.

Hernia

On February 2, 2014, the plaintiff wrote to the medical department at Cheshire
Correctional Institution complaining about pain from a lump in the area of his navel. On
February 7, 2014, the plaintiff saw Dr. Ruiz and received a binder. Dr. Ruiz refused the
plaintiff’s request that he submit a request for surgery to the Utilization Review Committee,
stating that the Department of Correction would not provide corrective surgery.
On January 13, 2015, the plaintiff filed a medical habeas action in state court. On June
29, 2015, the plaintiff submitted a grievance about his abdominal hernia, stating that it caused
pain and bathroom issues. The plaintiff also remarked that Drs. Wright and Ruiz had told him
that it was highly unlikely that the University of Connecticut would approve surgery. The
grievance was denied because URC issues were not grievable.
On August 20, 2015, the plaintiff went to court on his medical habeas case. The judge
continued the case to have a consultation regarding the hernia. The plaintiff returned to court on
November 19, 2015. He alleges that the judge did not understand why the plaintiff had not yet
received a proper C-PAP machine or had the surgical consultation. He also questioned what
was being done about a mouth guard.
On December 15, 2015, the plaintiff had the consultative surgical examination and was
placed on the surgery list. On January 20, 2016, the plaintiff wrote to the medical unit stating
that the hernia was causing stomach pain and that he was unable to use the bathroom. The
plaintiff was given a stool softener. The plaintiff underwent hernia surgery on March 2, 2016.
On March 14, 2016, the plaintiff was on lockdown for a facility-wide shakedown. The
plaintiff told defendant Hammond that he had just undergone surgery and was required to
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shower to keep the area clean. Although showers were being administered to other inmates,
Defendant Hammond denied the plaintiff a shower and the surgical area became infected. On
March 21, 2016, the plaintiff was sent to the medical unit to get antibiotics for the infected area.
C.

Mouth Guard

The plaintiff was fitted for a mouth guard on November 17, 2015. On January 4, 2016,
the plaintiff wrote to the dental department about the mouth guard. He was told that he would
receive it in two weeks. The plaintiff received the mouth guard on January 13, 2016.
II.

Analysis
To state a claim for deliberate indifference to a serious medical need, the 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,
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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.
The plaintiff alleges that the defendants were deliberately indifferent to his serious
medical needs by failing to provide timely and adequate medical care. He contends that
defendant Semple was deliberately indifferent to inmate medical needs by contracting to assume
liability for any medical judgments, defendants Freston, Faranella, Naqvi and Wu were
deliberately indifference for their participation on the URC and resulting denial of treatment,
defendant Dr. Ruiz was deliberately indifferent by denying to even request hernia surgery, and
defendant Hammond was deliberately indifferent for denying the plaintiff a shower even though
he was aware that the shower was required to avoid post-surgery infection.
The plaintiff suffers from sleep apnea. Courts considering this illness have held that
sleep apnea may constitute a serious medical need. See Flemming v. LaRose, No.9:11-cv1232(GL/TWD), 2014 WL 4684910, at *8 (N.D.N.Y. Sept. 19, 2014) (collecting cases). The
plaintiff does not allege sufficient facts for the Court to discount the seriousness of the plaintiff’s
condition. Thus, for purposes of this order, the Court will assume that the plaintiff’s sleep apnea
is a serious medical need. The plaintiff also has a hernia which was determined to require
surgery and which the plaintiff alleges caused pain and bathroom difficulties. While not every
hernia rises to the level of a serious medical need, the courts distinguish hernias that require
surgery and cause pain. See McQueen v. County of Albany, No. 08-CV-799, 2010 WL 338081,
at *11-12 (N.D.N.Y. Jan. 28, 2010) (finding on summary judgment that hernia was not a serious
medical need because hernia did not require surgery and caused inmate only occasional pain and
discomfort); see also Byng v. Wright, No. 09-CV-9924(PKC)(JCF), 2012 WL 967430, at *11
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(S.D.N.Y. Mar. 20, 2012) (chronic pain during nine-month delay of surgery for hernia sufficient
to support assumption that inmate suffered from serious medical condition). The Court considers
the complaint to plausibly allege serious medical needs for sleep apnea and the hernia.
The plaintiff also alleges that his mouth guard was delayed. He alleges no facts
indicating why the mouth guard was required and identifies no defendant who delayed receipt of
the mouth guard. Absent such allegations, there is no factual basis for a deliberate indifference
claim regarding the mouth guard.
The plaintiff alleges that defendants Semple, Wu, Faranella, Freston, and Naqvi engaged
in activities designed to excuse inadequate treatment and denied required treatment. He alleges
that defendant Ruiz recognized the need for hernia surgery but refused to request it. Finally, the
plaintiff alleges he made defendant Hammond aware of his need for a shower to avoid infection
but was denied a shower even though showers were available for other inmates. The Court
concludes that these allegations are sufficient at this stage of litigation to state plausible claims
for deliberate indifference to serious medical needs.
The plaintiff alleges only that defendant Dwiller told him that he previously had been
diagnosed with sleep apnea. He does not allege that she denied or interfered with his treatment.
Defendant Dwiller’s actions constitute, at most, negligence, which is not cognizable under
section under section 1983.
Defendant Furey is not mentioned in the statement of facts. The plaintiff must allege
facts showing the personal involvement of each defendant in the alleged constitutional violation
before damages can be awarded. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). Absent
any allegations suggesting that defendant Furey was aware of, or in a position to provide
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treatment for, the plaintiff’s medical needs, all claims against him are dismissed.
III.

Conclusion
The claims against defendants Dwiller and Furey and all claims relating to the delay in

receipt of the mouth guard are 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 regarding treatment
for sleep apnea and the hernia against the remaining defendants.
The Court enters the following orders:
(1)

The Clerk shall verify the current work addresses for defendants Semple, Wu,

Faranella, Freston, Naqvi, Ruiz, and Hammond, with the Department of Correction Office of
Legal Affairs, mail a waiver of service of process request packet to each of these defendants 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 any 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).
(2)

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 defendants Semple, Wu, Faranella, Freston, Naqvi, Ruiz, and Hammond, 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.

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(3)

The Clerk shall send written notice to plaintiff of the status of this action, along

with a copy of this Order.
(4)

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.
(5)

Defendants shall file their response to the complaint, either an answer or motion

to dismiss, within sixty (60) days from the date the waiver form is sent. If they choose to file an
answer, they shall admit or deny the allegations and respond to the cognizable claim recited
above. They also may include any and all additional defenses permitted by the Federal Rules.
(6)

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.
(7)

All motions for summary judgment shall be filed within eight months (240 days)

from the date of this order.
(8)

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.
(9)

If the 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. The plaintiff must give notice of a new address even if he
is incarcerated. The 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 the plaintiff has more than one pending case, he should indicate all of the case numbers in the
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notification of change of address. The plaintiff should also notify the defendant or the attorney
for the defendant of his new address.
(10)

The plaintiff shall utilize the Prisoner Efiling Program when filing documents

with the court.
SO ORDERED this 6th day of February 2017 at Hartford, Connecticut.
/s/
Michael P. Shea
United States District Judge

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