Harnage v. Pillai et al

Filing 9

INITIAL REVIEW ORDER Discovery due by 10/26/2017 Dispositive Motions due by 11/25/2017 Signed by Judge Alvin W. Thompson on 3/27/2017.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMES A. HARNAGE,
Plaintiff,
v.
OMPRAKASH PILLAI, et al.,
Defendants.

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: Civil No. 3:17-cv-355 (AWT)
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INITIAL REVIEW ORDER
The plaintiff, James A. Harnage, who is currently
incarcerated at Corrigan-Radgowski Correctional Center in
Uncasville, Connecticut, has filed a complaint pro se, pursuant
to 42 U.S.C. § 1983.

The plaintiff names as defendants Dr.

Omprakash Pillai, Dr. David Giles, Lisa Caldonero, P.A. Rob, and
Rikel Lightner.

The plaintiff alleges that the defendants

retaliated against him.

Defendants Pillai, Giles and Lightner

are named in individual and official capacities.
defendants are named in individual capacity only.
was received by the court on February 28, 2017.

The other
The complaint
The plaintiff’s

motion to proceed in forma pauperis was granted on March 20,
2017.

Under section 1915A of title 28 of the United States Code,
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.

Id.

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 right to relief.
U.S. 544, 555-56 (2007).
sufficient.

Bell Atlantic v. Twombly, 550

Conclusory allegations are not

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.

“‘A

document filed pro se is to be liberally construed and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’”
Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
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I.

Factual Allegations
Following a bout of chronic constipation, the plaintiff

developed a severe hemorrhoid and an abdominal hernia.
required surgical correction.

Both

When the plaintiff’s requests for

surgery were ignored, he pursued legal action against the
defendants for deliberate indifference to serious medical needs.
When the plaintiff asked defendant Rob to speak to Dr.
Pillai about a prescription renewal, defendant Rob asked why he
should help the plaintiff because he would just be named in a
lawsuit.

When the plaintiff asked defendant Caldonero to speak

with the doctor, she asked whether the request was to enable the
plaintiff to sue her.
In October 2014 and February 2016, the plaintiff underwent
surgical repair of his hemorrhoid, and in September 2015,
surgical repair of the hernia.

Following each procedure, the

defendants permitted conditions to exist that deprived the
plaintiff of adequate post-operative care.

The plaintiff

assumes that these actions were taken in retaliation for his
filing lawsuits and grievances.
Following the hemorrhoid surgery, defendant Giles refused
to provide the plaintiff with a prescription for various items
needed to clean the surgical area, compress dressings, and a
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doughnut pillow.

Defendant Giles also did not order the

plaintiff returned to the correctional facility in a separate
transport vehicle.

Defendants Rob and Caldonero refused to

request a prescription from any doctor for these items and pain
medication.

Defendant Pillai reduced the dosage of pain

medication that had been prescribed by defendant Giles and also
reduced the frequency of pain medication doses and the length of
the prescription. In addition, instead of delivering the
medication to the plaintiff’s cell, the defendants required him
to walk to the medical unit, about a quarter mile, to get the
medication.
Following the hernia surgery, immediately after the
plaintiff complained about a surgical intern, defendant Giles
approved his discharge two days before the medically recommended
discharge date.

Defendant Giles also approved the early removal

of surgical staples and drain tubes.
plaintiff’s recovery.

These actions retarded the

Defendant Pillai discharged the plaintiff

early from the facility infirmary, removed a PIC line,
discontinued antibiotics and a secondary pain medication,
changed his primary pain medication to something less effective,
and reduced the length of the prescription because the plaintiff
wanted to go to his cell to retrieve legal documents.
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The plaintiff brought these issues to defendant Lightner’s
attention but she ignored his complaints and failed to correct
any of the conditions.
II.

Analysis
The plaintiff named Drs. Pillai and Giles and Rikel

Lightner in both individual and official capacities.
he seeks only damages for relief.

However,

The Eleventh Amendment

divests the district court of subject matter jurisdiction over
claims for money damages against state officials acting in their
official capacities unless the state has waived that immunity or
Congress has abrogated it.
159, 169 (1985).

See Kentucky v. Graham, 473 U.S.

Section 1983 does not abrogate state sovereign

immunity, see Quern v. Jordan, 440 U.S. 332, 343 (1979), and the
plaintiff provides no evidence that Connecticut has waived that
immunity.

Accordingly, all claims against defendants Pillai,

Giles and Lightner in their official capacities are dismissed.
See 28 U.S.C. § 1915A(b)(2) (requiring dismissal of claims
seeking “monetary relief from a defendant immune from such
relief”).
Although the plaintiff identifies his only claim as
retaliation, he also included references to denial of access to
the courts.

A review of the factual allegations shows no facts
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supporting a claim for denial of access to the courts.

To state

a claim for denial of access to the courts, the plaintiff must
demonstrate that the defendants acted deliberately and
maliciously and that he suffered an actual injury.
Casey, 518 U.S. 343, 353 (1996).

See Lewis v.

To establish an actual injury,

the plaintiff must allege facts showing that the defendants took
or were responsible for actions that hindered his efforts to
pursue a legal claim, prejudiced one of his existing actions or
otherwise actually interfered with his access to the courts.
See Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 2002).

The

plaintiff has alleged no facts supporting an actual injury.
Thus, any claims for denial of access to the courts are
dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
The plaintiff alleges that all of the defendants retaliated
against him for filing lawsuits and grievances.

To state a

claim for retaliation, the plaintiff must allege facts showing
that he was engaged in constitutionally protected activity, the
defendants took adverse action against him, and a causal
connection between the protected activity and the adverse
action.

See Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).

To establish the causal connection, the plaintiff must show that
the protected activity “was a substantial or motivating factor
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for the adverse action taken” against him.

Bennett v. Goord,

343 F.3d 133, 137 (2d Cir. 2003) (citation omitted).

As

retaliation claims are easily made, they are examined with
“skepticism and particular care.”

Davis, 320 F.3d at 352.

The plaintiff has alleged facts suggesting that the
defendants’ actions occurred after he exercised his First
Amendment rights by submitting complaints or grievances or
filing lawsuits.

Temporal proximity between protected conduct

and adverse action is circumstantial evidence of retaliation.
See Faulk v. Fisher, 545 F. App’x 56, 58 (2d Cir. 2013).

Thus,

the retaliation claims will proceed.
III.

Conclusion
Any claims for denial of access to the courts are hereby

DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).

The claims

against defendants Pillai, Giles and Lightner in their official
capacities are hereby DISMISSED pursuant to 28 U.S.C. §
1915A(b)(2).

The case will proceed on the retaliation claims

against the defendants in their individual capacities.
The court enters the following orders:
(1)

The Clerk shall verify the current work addresses for

each defendant with the Department of Correction Office of Legal
Affairs, mail a waiver of service of process request packet
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containing the Complaint to each defendant at the confirmed
address within twenty-one (21) days of this order, and report to
the court on the status of the waiver request on the thirtyfifth (35) day after mailing.

If any defendant fails to return

the waiver request, the Clerk shall make arrangements for inperson service by the U.S. Marshals Service on him 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 send written notice to the plaintiff

of the status of this action, along with a copy of this order.
(3)

The Clerk shall send a courtesy copy of the Complaint

and this order to the Connecticut Attorney General and the
Department of Correction Office of Legal Affairs.
(4)

The defendants shall file their response to the

complaint, either an answer or motion to dismiss, within sixty
(60) days from the date the waiver forms are 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.
(5)

Discovery, pursuant to Federal Rules of Civil
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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.
(6)

All motions for summary judgment shall be filed within

eight months (240 days) from the date of this order.
(7)

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.
(8)

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.
do so can result in the dismissal of the case.

Failure to

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 notification of change of address.
The plaintiff should also notify the defendant or the attorney
for the defendant of his new address.
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(9)

The plaintiff shall utilize the Prisoner Efiling

Program when filing any document with the court.
It is so ordered.
Signed this 27th day of March 2017 at Hartford,
Connecticut.

/s/AWT
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Alvin W. Thompson
United States District Judge

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