Ramos v. Uconn Health et al
Filing
28
CORRECTED 27 ORDER finding as moot 16 Motion; denying 17 Motion for Judgment; denying 18 Motion for Default Entry 55(a); denying 19 Motion for Order; denying 20 Motion for Copy(s); denying 21 Motion for Copy(s); denying 24 Moti on for Default Judgment; denying 26 Motion for Order. Additionally, Mr. Ramoss claims against the UCONN, Commissioner Semple, Warden Chapdelaine, Warden Mulligan, Medical Supervisor Greene, Nurse Jane Doe, and Nurse Supervisor and Mr. Ramoss First, Ninth, and Fourteenth Amendment claims and the Eighth Amendment claim against Dr. Naqvi are DISMISSED under 28 U.S.C. § 1915A(b)(1). Thus, all claims against UCONN, Commissioner Semple, Warden Chapdelaine, Warden Mulligan, Dr. Naqvi, Medical Su pervisor Greene, Nurse Jane Doe, and Nurse Supervisor have been DISMISSED. A sole claim, Mr. Ramoss Eighth Amendment claim of deliberate indifference to medical needs, will proceed against Dr. Kevin McCrystal in his individual and official capacity. The Court instructs the Clerk of the Court to amend the caption of this case accordingly. Discovery due by 12/31/2018. Dispositive Motions due by 1/30/2019. Signed by Judge Victor A. Bolden on 6/1/2018. (Riegel, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE E. RAMOS,
Plaintiff,
v.
No. 3:17-cv-326 (VAB)
UNIVERSITY OF CONNECTICUT
HEALTH CENTER, et al.,
Defendants.
CORRECTED RULING ON AMENDED COMPLAINT AND PENDING MOTIONS
Jose Ramos (“Plaintiff”), proceeding pro se, is incarcerated in the MacDougall building
at the MacDougall-Walker Correctional Institution (“MacDougall”) in Suffield, Connecticut. He
has sued the University of Connecticut Health Center (“UCONN”), Commissioner Scott Semple,
Wardens Carol Chapdelaine and William Mulligan, Drs. Syed Naqvi and Kevin McCrystal,
Nurse Jane Doe, Nurse Supervisor, and Medical Supervisor Heidi Greene (collectively
“Defendants”) under 42 U.S.C. § 1983.
Mr. Ramos has filed an Amended Complaint. ECF No. 14. He has also filed a number of
motions, including: a motion for service of the Complaint; a motion for default; two motions for
default judgment; a motion for ruling on the motion for default judgment; a motion to file an
affidavit; a motion for preliminary injunction; and a motion for copies of documents.
For the following reasons, the Amended Complaint is DISMISSED in part and the
motion for service of summons and the Complaint is DENIED as moot. The remaining pending
motions are DENIED.
I.
BACKGROUND
Mr. Ramos sued Defendants on February 23, 2017, ECF No. 1, and filed an Amended
Complaint on August 29, 2017. ECF No. 14.
In the Amended Complaint, Mr. Ramos alleges that, in October 2012, medical staff at
Corrigan Correctional Institution (“Corrigan”) prescribed Motrin to treat his shoulder pain. Am.
Compl., ECF No. 14, at 7 ¶¶ 1–2. Mr. Ramos claims that the pain stemmed from a shoulder
injury sustained during his arrest. Id. ¶ 1.
Beginning in May 2016, Mr. Ramos allegedly did not receive Motrin for several months.
Id. ¶ 3. After prison officials transferred Mr. Ramos to the Walker building, a physician
prescribed Mr. Ramos Ibuprofen for pain. Id. at 13, Ex. A. On June 13, 2016, Dr. Naqvi, a
physician at MacDougall, prescribed Mr. Ramos 600 milligrams of Motrin to be taken twice a
day for two months. Id. at 16, Ex. B. On July 31, 2016, Mr. Ramos submitted two requests to the
medical department at MacDougall. Id. at 13–14, Ex. A. In the first request, Mr. Ramos sought a
bulk medication prescription for Motrin and to be seen by a doctor. Id. at 13, Ex. A. He claimed
that he had not been receiving his bulk medication since he had arrived at MacDougall and was
experiencing severe shoulder pain. See id. He also informed medical staff that he was supposed
to be doing rubber band exercises. See id.
In the second request, Mr. Ramos sought bulk pain medication and to be seen by a doctor
or other medical staff member. Id. at 14, Ex. A. He again informed medical staff that he was
supposed to be doing rubber band exercises. Id. In response, on an unidentified date in August
2016, a medical staff member scanned an order for Motrin to the pharmacy, indicated that there
was no order to do rubber band exercises, and put Mr. Ramos on the sick call list to see a
physician. Id.
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Mr. Ramos states that he did not see a doctor until June 27, 2017. Id. at 8 ¶¶ 7–8. On that
date, correctional staff allegedly woke Mr. Ramos up and escorted him to the medical
department. Id. ¶ 7. Dr. Kevin McCrystal allegedly informed Mr. Ramos that he was going to
examine him in connection with his asthma condition. Id. ¶¶ 8–9. Mr. Ramos allegedly informed
Dr. McCrystal and that he had been seeking an appointment with a physician for a year for other
medical conditions. Id. ¶ 10. Dr. McCrystal allegedly directed Mr. Ramos to submit a sick call
request. Id. ¶ 11. When Mr. Ramos stated that he had already submitted requests for treatment,
Dr. McCrystal allegedly became upset and accused Mr. Ramos of being a liar and of changing
his story regarding his requests for treatment. Id. ¶¶ 12–14. Dr. McCrystal allegedly then
discontinued Mr. Ramos’s prescription for pain medication. Id. ¶ 14.
Mr. Ramos claims that Defendants violated his First, Eighth, Ninth, and Fourteenth
Amendment rights. Id. at 9 ¶ 21. He seeks monetary damages and injunctive and declaratory
relief. Id. ¶¶ 22–26.
II.
STANDARD OF REVIEW
A.
Initial Review
Under 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
3
factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when a 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 still 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).
B.
Entry of Default and Default Judgment
Federal Rule of Civil Procedure 55 provides a two-step process to obtain a default
judgment. New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). The first step is to seek entry of
default. Id. “When a party against whom affirmative relief is sought has failed to plead or
otherwise defend, a plaintiff may bring that fact to the court’s attention, and Rule 55(a)
empowers the clerk of the court to enter a default against a party that has not appeared or
defended.” Id. “Once default has been entered, the allegations of the complaint that establish the
defendant’s liability are accepted as true, except for those relating to the amount of damages.”
Coles v. Lieberman, Michaels & Kelly, LLC, No. 10-cv-484S, 2011 WL 3176467, at *1
(W.D.N.Y. July 27, 2011) (citation omitted); see also Transatlantic Marine Claims Agency, Inc.,
109 F.3d 105, 108 (“It is, of course, ancient learning that a default judgment deems all the wellpleaded allegations in the pleadings to be admitted.”) (citing Greyhound Exhibitgroup, Inc. v.
4
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party’s default is deemed to
constitute a concession of all well pleaded allegations of liability, it is not considered an
admission of damages.”)).
The second step is to seek a default judgment under Rule 55(b). “Rule 55(b)(1) allows the
clerk to enter a default judgment if the plaintiff’s claim is for a sum certain and the defendant has
failed to appear and is not an infant or incompetent person. See Fed. R. Civ. P. 55(b)(1). ‘In all
other cases,’ Rule 55(b)(2) governs, and it requires a party seeking a judgment by default to
apply to the court for entry of a default judgment.” New York v. Green, 420 F.3d 99, 104 (2d Cir.
2005). Under Rule 55(b)(2), a court must determine whether liability is appropriate, based on the
facts alleged in the Complaints. Coles, 2011 WL 3176467, at *1 (citation omitted); accord
United States v. Bunbury, 15-cv-3764 (JS), 2015 9050581, at *1 (E.D.N.Y. Dec. 15, 2015) (“[I]n
determining a motion for default judgment, the Court is responsible for ensuring that the
pleadings provide an appropriate basis for liability.” (citing United States v. Kemp, No. 15-cv02419 (PKC), 2015 WL 6620624, at *2 (E.D.N.Y. Oct. 30, 2015))). The court “may conduct
hearings . . . when, to enter or effectuate judgment, it needs to: [] conduct an accounting; []
determine the amount of damages; [] establish the trust of any allegation by evidence; or []
investigate any other matter.” Fed. R. Civ. P. 55(b)(2).
C.
Injunctive Relief
Preliminary injunctive relief “is an ‘extraordinary and drastic remedy . . . that should not
be granted unless the movant, by a clear showing, carries the burden of persuasion.” Moore v.
Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (internal quotation
marks and citation omitted). To warrant preliminary injunctive relief, the moving party must
5
demonstrate (a) that he or she will suffer “irreparable harm” in the absence of an injunction, and
(b) either (1) a “likelihood of success on the merits or (2) sufficiently serious questions going to
the merits [of the case] to make them a fair ground for litigation and a balance of hardships
tipping decidedly toward the party requesting preliminary injunctive relief.” Cacchillo v. Insmed,
Inc., 638 F.3d 401, 405–06 (2d Cir. 2011) (internal quotation marks omitted).
If a party seeks a permanent injunction, he or she “must demonstrate (1) irreparable harm
. . . and (2) actual success on the merits.” Ognibene v. Parkes, 671 F.3d 174, 182 (2d Cir. 2012).
Thus, the standard for a permanent injunction is similar to the standard for a preliminary
injunction, but a plaintiff must show actual success rather than a likelihood of success. See
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987).
III.
DISCUSSION
A.
Amended Complaint
1.
University of Connecticut
To state a claim under section 1983, Mr. Ramos must allege facts showing that the
defendant, a person acting under color of state, law deprived him of a federally protected right.
See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982). The Supreme Court has held that a
state agency is not a person within the meaning of section 1983. See Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989) (state and state agencies not persons within meaning of 42
U.S.C. § 1983).
Because UCONN is a state agency, it is not considered to be a person subject to suit
under section 1983. See Gaby v. Board of Trustees of Community Technical Colleges, 348 F.3d
62, 63 (2d Cir. 2003) (per curiam) (noting decisions holding that state universities and their
6
boards of trustees are not persons within the meaning of section 1983); Stewart v. John Dempsey
Hospital, No. 3:03-cv-1703 (WWE), 2004 WL 78145, at *2 (D. Conn. Jan. 9, 2004) (holding
that John Dempsey Hospital University of Connecticut Health Center is not a person within the
meaning of section 1983); Jolly v. Correctional Managed Health Care, No. 3:04-cv-1582
(RNC), 2009 WL 233667, at *3 (D. Conn. Jan. 30, 2009) (holding that Correctional Managed
Health Care, as “a division of a state agency, the University of Connecticut Health Center,” is
not a person within the meaning of § 1983), aff’d, 375 Fed. App’x 67 (2d Cir. 2010); Cassells v.
Univ. Hosp. at Stony Brook, No. 86 C 0698, 1987 WL 3717, at *4 (E.D.N.Y. Jan. 12, 1987)
(“[P]laintiff’s section 1983 claim against State University and University Hospital must fall
because neither is a “person” within the meaning of section 1983.”).
Accordingly, consistent with 28 U.S.C. § 1915A(b)(1), Mr. Ramos’s claims against
UCONN are dismissed as lacking a basis in law.
2.
Semple, Chapdelaine, Mulligan, Greene, Nurse Supervisor and Doe
Mr. Ramos describes Scott Semple as the Commissioner of Correction and Carol
Chapdelaine and William Mulligan as Wardens of MacDougall. None of these Defendants are
medical providers. Mr. Ramos also does not mention any of these Defendants in the body of the
Complaint. As a result, Mr. Ramos has not alleged that Commissioner Semple, Warden
Mulligan, or Warden Chapdelaine violated his federally or constitutionally protected rights.
Mr. Ramos also names Medical Supervisor Heidi Greene, a Nursing Supervisor and a
Jane Doe Nurse as defendants. He identifies them as employees at MacDougall. He does not,
however, refer to or mention these defendants in the body of the Complaint. Thus, Mr. Ramos
7
has not alleged that Nurse Supervisor, Nurse Jane Doe, or Medical Supervisor Heidi Greene
violated his constitutionally or federally protected rights.
Accordingly, consistent with 28 U.S.C. § 1915A(b)(1), Mr. Ramos’s claims against
Semple, Chapdelaine, Mulligan, Greene, Jane Doe and Nurse Supervisor are dismissed.
3.
Drs. Naqvi and McCrystal
Mr. Ramos asserts generally that Defendants violated his Ninth and Fourteenth
Amendment rights. Liberally construed, Mr. Ramos also asserts a First Amendment retaliation
claim against Dr. McCrystal and an Eighth Amendment deliberate indifference to medical needs
claim against Drs. McCrystal and Naqvi.
a.
First Amendment
Mr. Ramos mentions that he has pending civil lawsuits against the Department of
Correction. He claims that the decision by Dr. McCrystal to discontinue his pain medication on
June 27, 2017, was made in retaliation for lawsuits that he has filed against the Department of
Correction.
When prison officials take adverse action against an inmate, motivated by the inmate’s
exercise of a protected constitutional right, a section 1983 retaliation claim may be pursued. See
Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will lie
where the government takes negative action against an individual because of his exercise of
rights guaranteed by the Constitution or federal laws.”). Because claims of retaliation are easily
fabricated, courts consider such claims with skepticism and require that they be supported by
specific facts; thus, conclusory allegations of retaliatory conduct are not sufficient. See Flaherty
v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
8
To state a retaliation claim, Mr. Ramos must show that (1) his conduct or speech was
protected by the Constitution or federal law; (2) prison officials took adverse action against him;
and (3) the protected conduct or speech was a substantial or motivating factor in the alleged
retaliatory or adverse action by prison officials. See Gill v. Pidlypchak, 389 F.3d 379, 380 (2d
Cir. 2004) (citations and internal quotation marks omitted).
Although filing lawsuits constitutes a protected First Amendment activity, the Amended
Complaint does not allege facts suggesting that the filing of the lawsuits by Mr. Ramos against
the Department of Correction was a substantial or motivating factor in the alleged retaliatory
conduct by Dr. McCrystal. Dr. McCrystal has not been named as a defendant in any other federal
lawsuit filed by Mr. Ramos. Nor does Mr. Ramos assert that Dr. McCrystal was aware of any
other lawsuits filed by him against other individuals employed by the Department of Correction.
Because Mr. Ramos’s allegations of retaliatory conduct are conclusory, at best, consistent
with 28 U.S.C. § 1915A(b)(1), his First Amendment retaliation claim is dismissed under. See
Dorsey v. Fisher, 468 Fed. App’x. 25, 27 (2d Cir. 2012) (“Without more, where, as here, the
plaintiff alleges the ultimate fact of retaliation in a conclusory and speculative manner, he fails to
state a claim for retaliation.”)
b.
Ninth Amendment
The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const.
amend. IX. The Second Circuit has recognized, however, that the “Ninth Amendment is not an
independent source” of constitutional rights. Jenkins v. Comm’r of I.R.S., 483 F.3d 90, 92 (2d
Cir. 2007). Rather, it is a “rule of construction” that courts apply in certain cases. United States v.
9
Bifield, 702 F.2d 342, 349 (2d Cir. 1983). Because a § 1983 claim must be premised on the
violation of a right guaranteed by the United States Constitution or federal law, the Ninth
Amendment, which concerns only unenumerated rights, cannot serve as the basis for a Section
1983 claim. See Williams v. Perry, 960 F. Supp. 534, 540 (D. Conn. 1996) (“No independent
constitutional protection is recognized which derives from the Ninth Amendment and which may
support a § 1983 cause of action.”) (quoting Rini v. Zwirn, 886 F. Supp. 270 (E.D.N.Y. 1995)).
Accordingly, consistent with 28 U.S.C. § 1915A(b)(1), Mr. Ramos’s Ninth Amendment
claim is dismissed for failure to state a claim upon which relief may be granted.
c.
Fourteenth Amendment
Mr. Ramos asserts that he “has the right to also be treated equal to others in addition to
medical care.” Am. Compl. ¶ 20.
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 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)). However, “[t]his 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, Mr. Ramos 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, Mr. Ramos must allege that (1) compared with others
10
similarly situated, he 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). Mr. Ramos does not allege that 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. Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000). Under this theory, Mr. Ramos must allege that he has been “intentionally
treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Id. Mr. Ramos must allege an “extremely high degree of similarity”
with the person to whom he is comparing himself. Clubside v. Valentin, 468 F.3d 144, 159 (2d
Cir. 2006) (citation omitted). Mr. Ramos’s circumstances and the other person’s circumstances
must be “prima facie identical.” Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (internal
quotation marks and citation omitted), overruled on other grounds by Appel v. Spiridon, 531
F.3d 138 (2d Cir. 2008).
Mr. Ramos does not identify any other inmates who suffer from his specific medical
condition, require the same medical treatment, and have been provided with this medical
treatment. Thus, Mr. Ramos has not alleged sufficient facts to show the necessary degree of
similarity to other inmates to state a class of one equal protection claim. 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 the ground that mere allegation of less favorable treatment than “similarly
11
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) (finding that conclusory allegation that an inmate was denied medical care that was
provided to other similarly situated inmates did not state viable equal protection claim because
the inmate “fail[ed] to allege facts that demonstrate[d] a substantial similarity between himself
and the other inmates with whom he compare[d] himself”); Page v. Lantz, No. 3:03-cv1271(MRK), 2007 WL 1834519, at *6 (D. Conn. June 25, 2007) (holding class of one equal
protection claims fails as matter of law where the plaintiff did not allege that similarly situated
inmates were treated differently under similar circumstances).
Mr. Ramos thus has failed to state a claim that Defendants violated his equal protection
rights. Accordingly, consistent with 28 U.S.C. § 1915A(b)(1), his Fourteenth Amendment equal
protection claimis dismissed for failure to state a claim upon which relief may be granted.
d.
Eighth Amendment Claim
Mr. Ramos alleges that he suffers from severe shoulder pain and limited mobility in his
shoulder. Deliberate indifference by prison officials to an inmate’s serious medical needs can
constitute cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976). There is a subjective and an objective component to the
deliberate indifference standard. See Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006).
Under the objective component, Mr. Ramos must allege that his medical condition,
illness or injury is a “sufficiently serious” one. Wilson v. Seiter, 501 U.S. 294, 298 (1991). A
“sufficiently serious” deprivation exists if Mr. Ramos suffers from an urgent medical condition
that is degenerative or is capable of causing death or extreme or chronic pain. See Brock v.
12
Wright, 315 F.3d 158, 163 (2d Cir. 2003) (citation omitted); Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996) (internal quotation marks and citations omitted). Under the subjective
component, Mr. Ramos must allege that the defendant prison official acted with a “sufficiently
culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 838 (1994) (internal quotation marks
and citation omitted). Thus, the defendant must have been actually aware of a substantial risk
that the inmate would suffer serious harm as a result of his or her actions or inactions and have
disregarded that risk. See Salahuddin, 467 F.3d at 279–80.
Mr. Ramos does not specifically refer to Dr. Naqvi in the body of the Complaint. An
exhibit attached to the Complaint, however, indicates that, on June 13, 2016, Dr. Naqvi
prescribed Motrin to be taken twice a day for two months to treat Mr. Ramos’s pain. See Am.
Compl. at 16, Ex. B. In response to Mr. Ramos’s requests for treatment in July 2016, medical
staff members provided Mr. Ramos with pain medication, submitted a request to renew the
prescription for pain medication or scanned the order into the pharmacy, and added Mr. Ramos
to the list of inmates to be seen by a physician at sick call. See id. at 12–14, Ex. A.
Mr. Ramos, however, does not allege that he submitted any requests for medical
treatment to Dr. Naqvi after medical staff provided him with care in early August 2016 or that
Dr. Naqvi denied or refused to respond to any request that he made for medical treatment. As a
result, the Amended Complaint does not state a plausible claim that Dr. Naqvi was deliberately
indifferent to Mr. Ramos’s shoulder injury or pain.
Accordingly, consistent with 28 U.S.C. § 1915A(b)(1), the Eighth Amendment claim
against Dr. Naqvi is dismissed.
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Mr. Ramos states that, on June 27, 2017, Dr. McCrystal refused to examine or treat him
for his shoulder injury. Instead, he allegedly directed Mr. Ramos to submit a new request to be
seen by medical staff regarding his shoulder pain and discontinued his prescription for pain
medication. Mr. Ramos states that he suffered from pain every day after Dr. McCrystal
discontinued his pain medication.
Mr. Ramos has stated a plausible Eighth Amendment claim of deliberate indifference to
medical needs against Dr. McCrystal. That claim will proceed against Dr. McCrystal in his
official and individual capacity.
Because Mr. Ramos proceeds in forma pauperis and the Court has determined that Mr.
Ramos’s Eight Amendment claim against Dr. McCrystal shall go forward, under 28 U.S.C. §
1915(d), Mr. Ramos is not responsible for serving the Amending Complaint, and the Clerk of the
Court will take the necessary steps to facilitate service of the Amended Complaint on Dr.
McCrystal. Accordingly, the motion for service of the Amended Complaint is denied as moot.
B.
Motions for Default and Default Judgment and Motion for Judgment on
Motion for Default Judgment
Mr. Ramos seeks entry of default against Defendants for failure to plead and requests that
a default judgment enter against the Defendants. Because Defendants have not been served with
a copy of the Amended Complaint, they are not in default for failure to plead. Accordingly, the
motions for default and for default judgment are denied.
The “Judicial Notice Motion for Judgment Regarding Plaintiff Motion for Default
Judgment” seeks a ruling on the motions for default and for default judgment. The motion
reiterates the arguments in support of the motions for default and for default judgment. As
14
indicated above, Defendants are not in default. Accordingly, the motion seeking a ruling on the
motions for default and for default judgment is denied.
C.
Injunctive Relief
1.
Free Copies
Mr. Ramos seeks an order directing the Department of Correction or Defendants to
provide him with free copies of documents related to this action whenever he might need a copy
of a document. He claims that he is indigent and cannot pay the .25 cents per page copying fee
charged by the Department of Correction.
The motion is deficient in that it is not signed as required by Rule 11(a) of the Federal
Rules of Civil Procedure. Furthermore, it does not meet the standard for granting a request for
injunctive relief.
The only remaining claim in this action is a claim that Dr. McCrystal denied Mr. Ramos
medication to alleviate the pain in his shoulder. The Amended Complaint does not include a
claim that Defendants denied Mr. Ramos copies of documents or access to the courts. Thus, the
request for relief seeking free copies of documents is not related to the claims in the Amended
Complaint. It would be inappropriate for the Court to grant a request for injunctive relief that is
unrelated to the claims and Defendants in the Amended Complaint. See De Beers Consol. Mines
Ltd. v. United States, 325 U.S. 212, 220 (1945) (noting that a preliminary injunction is
appropriate to grant intermediate relief of “the same character as that which relief may be
granted finally,” but inappropriate where the injunction “deals with a matter lying wholly outside
the issues in the suit.”); Johnson v. Vijay-Kumar-Mandalay Wala, No. 914CV1151LEKDJS,
2016 WL 426547, at *2 (N.D.N.Y. Feb. 3, 2016) (denying motion for mandatory injunction
15
because relief sought for medical treatment for sinus and skin problems was “unconnected, in
time and substance” to inmate’s underlying deliberate indifference to medical care claim
regarding denial of vitamins); Mitchell v. N.Y. State Dep’t of Corr. Servs., No. 06-cv-6278, 2011
WL 5326054, at *3 (W.D.N.Y. Nov. 3, 2011) (finding that the facts underlying the request for
injunctive relief were unrelated to the underlying facts of the claims in the action, except for the
fact that they arose in the prison context).
In addition, Mr. Ramos has not alleged that he will suffer imminent harm, if the relief he
seeks is not granted to him. Under the Prisoner Electronic Filing Program, Mr. Ramos is required
to file documents, motions and memoranda in this case, as well as any other case filed in this
Court, using the electronic filing program at the facility in which he is confined. See Standing
Order On Prisoner Electronic Filing Program, ECF No. 6 at 1. Under the Prisoner Filing
Program, Mr. Ramos must submit a document, motion or memorandum to be filed in this case to
a designated correctional employee at his facility who then scans the document for filing with the
Court. See id. at 1–2. After the designated employee files the motion, memorandum or document
with the Court, he or she must return the original motion, memorandum or document to Mr.
Ramos for his records. See id. at 2. Under this Program, Mr. Ramos is not required to mail copies
of documents, motions or documents filed in this case to Defendants or counsel for Defendants.
See id. at 2–3. Under the terms of the Program, Mr. Ramos should have within his possession the
original document of anything he has filed with the Court. Mr. Ramos therefore has not indicated
why he might need copies of documents that have been filed or will be filed in this federal
action. Thus, he has not shown that he will suffer imminent injury if the Court does not grant his
16
request that the Department of Correction or Dr. McCrystal provide him with free copies of
documents.
Accordingly, the motion for free copies is denied.
2.
Preliminary Injunction
Mr. Ramos claims that he has limited mobility in both of his shoulders and on some days
he cannot lift a blanket or his right hand to touch his left shoulder. He states that he has fallen
from the top bunk on multiple occasions because of the limited mobility and pain in his
shoulders.
Mr. Ramos states that he underwent an MRI at UCONN on April 5, 2018. The MRI
reflected that he has an inflamed muscle in his shoulder and there is friction between bones in his
shoulder due to swelling. He seeks an order directing Commissioner Semple, Warden Mulligan,
and Dr. Naqvi to provide him with a bottom bunk pass, an extra mattress, and pain medication.
As indicated above, Dr. McCrystal is the only remaining defendant in this action. The
claim that proceeds relates to Dr. McCrystal’s alleged decision in June 2017 to discontinue
medication which had been previously prescribed to alleviate the pain in Mr. Ramos’s shoulder.
Mr. Ramos does not assert that an examining physician or physicians or any other
medical professional at UCONN made any recommendations with regard to treatment of Mr.
Ramos’s shoulder condition based on the results of the MRI. Rather, Mr. Ramos has made his
own determination that he should be sleeping in a bottom bunk on two mattresses and that he
requires pain medication.
Mr. Ramos generally concludes that Defendants must be aware of his serious medical
condition because the MRI results “are back.” Mot. at 8. Mr. Ramos does not assert, however,
17
that he has discussed the results of the MRI with any medical provider or custody official at
MacDougall or that he submitted any specific requests for a bottom bunk pass, or an extra
mattress, or pain medication to a medical provider or custody official. Nor are there any
allegations that Dr. McCrystal or any other prison official at MacDougall denied him a bottom
bunk or an extra mattress or pain medication.
Indeed, the motion was filed less than a month after Mr. Ramos underwent the MRI. He
does not indicate that he made use of the Department of Correction’s health services remedies or
any other administrative remedies available to him at MacDougall prior to filing the motion. See
State of Connecticut Department of Correction Administrative Directives 9.6 and 8.9.1
Lastly, Mr. Ramos has not demonstrated that he is subject to imminent danger or that he
will be irreparably harmed, if the Court does not grant the relief he requests. Because the
Department of Correction’s Administrative Remedies process, including Health Services
Reviews, provide an avenue by which Mr. Ramos may seek and secure the relief that he
requests, the motion for injunctive relief is denied.
D.
Motion to File a Truth Affidavit and Receive Copies
Mr. Ramos seeks to file a “Truth Affidavit in the Nature of the Supplemental Rules for
Administrative and Maritime Claims C(6).” Mot. File Affidavit at 2. He also seeks three certified
copies of the “Truth Affidavit” in order to serve all the parties with a copy of it. See id. at 1.
1
State of Connecticut Administrative Directive 9.6, Inmate Administrative Remedies, may be
found at: www.portal.ct.gov/-/media/DOC/Pdf/Ad/ad0906pdf.pdf?la=en (effective Aug. 15,
2013). State of Connecticut Administrative Directive 8.9, Administrative Remedy for Health
Services, may be found at: www.portal.ct.gov/-/media/DOC/Pdf/Ad/ad0809pdf.pdf?la=en
(effective July 12, 2012).
18
As a preliminary matter, although the affidavit includes the signature and stamp of a
notary public, it contains no statement that Mr. Ramos swore to its truthfulness on a specific date
in front of the notary public. In addition, Mr. Ramos did not subscribe that the statements in the
affidavit were true under penalty of perjury. Rather, Mr. Ramos simply states that he prepared
the “document.” Id. at 6. Thus, the document attached to the motion is neither an affidavit nor a
declaration. See 28 U.S.C. § 1746.
On the first page of the purported affidavit attached to the motion, Mr. Ramos includes
statements about commerce, judgments in commerce, and lawful contracts. Mr. Ramos refers to
himself as “a Sovereign, a Private Person, a Living Soul, a Creditor, Claimant and Secured Party
and Not a STATUTORY PERSON upon the land Connecticut, a Republic in the county called
Hartford.” Motion, ECF No. 21 at 2. These statements do not pertain to this civil rights lawsuit
nor do they support the allegations in the Amended Complaint.
Pages three, five and six of the purported affidavit include allegations about pain in Mr.
Ramos’s shoulder and treatment or lack of treatment for that condition beginning in November
2012 and continuing through February 2018. These allegations include references to only two
named individuals, Dr. McCrystal and a Nurse named Gina regarding visits to the medical
department at MacDougall in December 2017 and January 2018. None of the allegations in the
purported affidavit were asserted in the Amended Complaint. As indicated above, this case will
proceed only as to Dr. McCrystal with regard to his treatment of Mr. Ramos for shoulder pain in
late June 2017.
19
In addition, Mr. Ramos seeks to file the “Truth Affidavit” under the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Actions.2 This civil rights action,
however, is not a maritime, admiralty, or forfeiture proceeding. Nor is it an in rem action. See
Black’s Law Dictionary (10th ed. 2014) (“An action in rem is one in which the judgment of the
court determines the title to property and the rights of the parties, not merely as between
themselves, but also as against all persons at any time dealing with them or with the property
upon which the court had adjudicated.” (quoting R.H. Graveson, Conflict of Laws 98 (7th ed.
1974))); see, e.g., Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359,
364 (2d Cir. 1995) (“[A]n in rem action is an action against the arrested res itself and any
judgment is thus limited to the value thereof or the value of the bond or stipulation substituted
for the res to obtain its release.” (citation omitted)). Thus, there is no basis for permitting Mr.
Ramos to file a purported affidavit under the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions.
Because the “Truth Affidavit” is not subscribed or sworn under penalty of perjury, the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions do not
permit the filing of the purported affidavit in this civil rights action seeking monetary damages
and injunctive relief and the statements in the affidavit do not support the allegations in the
Amended Complaint against Dr. McCrystal, there is no basis for permitting Mr. Ramos to file
the purported “Truth Affidavit” in this action. See United States v. Robinson, No. 4:11 CR 246
2
Rule C of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions governs an action in rem. Rule C(6)(a) requires a “(i) person who asserts a right of
possession or any ownership interest in the property” involved in an in rem proceeding to file a
“verified statement of right or interest” in the property at stake “(A) within 14 days after the
execution of process, or (B) within the time that the court allows.” Supp. R. Adm. Mar.
20
CDP, 2013 WL 1787571, at *4 (E.D. Mo. Apr. 24, 2013) (noting that documents, including one
titled “Truth Affidavit in the Nature of Supplemental Rules
for Administrative and Maritime Claim Rules C(6)” did not have any “legal effect” and denying
“any request for relief” sought by defendant “to the extent that [he] believes these documents
seek some sort of relief from the court”). Nor is there a basis to provide him with certified copies
of the purported affidavit.
IV.
CONCLUSION
For the foregoing reasons, Mr. Ramos’s claims against the UCONN, Commissioner
Semple, Warden Chapdelaine, Warden Mulligan, Medical Supervisor Greene, Nurse Jane Doe,
and Nurse Supervisor and Mr. Ramos’s First, Ninth, and Fourteenth Amendment claims and the
Eighth Amendment claim against Dr. Naqvi are DISMISSED under 28 U.S.C. § 1915A(b)(1).
Thus, all claims against UCONN, Commissioner Semple, Warden Chapdelaine, Warden
Mulligan, Dr. Naqvi, Medical Supervisor Greene, Nurse Jane Doe, and Nurse Supervisor have
been DISMISSED.
A sole claim, Mr. Ramos’s Eighth Amendment claim of deliberate indifference to
medical needs, will proceed against Dr. Kevin McCrystal in his official and individual capacity.
The Court instructs the Clerk of the Court to amend the caption of this case accordingly.
The motion for default, the motions for default judgment, the motion for judgment on
motion for default judgment, and the motion to file a “Truth Affidavit” and for copies are all
DENIED.
The motion for service of summons and the Complaint is DENIED as moot, and the
C(6)(a)(i)(A) & (B).
21
motions for free copies and a preliminary injunction are DENIED.
Within twenty-one (21) days of this Order, the Clerk of the Court shall prepare a
summons form and send an official capacity service packet to the U.S. Marshal’s Service. The
U.S. Marshals Service shall serve the summons, a copy of the Amended Complaint and this
Order on Kevin McCrystal in his official capacity by delivering the necessary documents in
person to the Office of the Attorney General, 55 Elm Street, Hartford, CT 06141.
Within twenty-one (21) days of this Order, the Clerk of the Court shall ascertain from the
Department of Correction Office of Legal Affairs the current work address for Dr. McCrystal
and mail a copy of the Complaint, a copy of the Amended Complaint, a copy of this Order and a
waiver of service of process request packet to Dr. McCrystal in his individual capacity at his
current work address.
On the thirty-fifth (35th) day after mailing, the Clerk of the Court shall report to the
Court on the status of each request. If Dr. McCrystal fails to return the waiver request, the Clerk
of the Court shall make arrangements for in-person service by the U.S. Marshals Service and the
Dr. McCrystal shall be required to pay the costs of such service in accordance with Federal Rule
of Civil Procedure 4(d).
Dr. McCrystal shall file his response to the Amended Complaint, either an answer or
motion to dismiss, within sixty (60) days from the date the notice of lawsuit and waiver of
service of summons forms are mailed to him. If the he chooses to file an answer, he shall admit
or deny the allegations and respond to the cognizable claims recited above. He may also include
any and all additional defenses permitted by the Federal Rules.
22
Discovery, under Federal Rules of Civil Procedure 26 through 37, shall be completed
within six months (180 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 seven months (210 days) from
the date of this Order.
The Pro Se Prisoner Litigation Office shall send a courtesy copy of the Complaint,
Amended Complaint and this Order to the Connecticut Attorney General and the Department of
Correction Legal Affairs Unit.
SO ORDERED at Bridgeport, Connecticut, this 1st day of June, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
23
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