Walker v. Doe et al

Filing 46

RULING: The defendants Motion to Dismiss and for Judgment on the Pleadings (Doc. No. 39) is GRANTED as to the claims against Nurse Savoie, Nurse Lawrence, Nurse Burke, and Nurse Wilson, and DENIED as to the claims against Dr. Wright and Nurse Vervill e. Any claims for injunctive relief are also dismissed. The case will proceed on the Fourteenth Amendment deliberate indifference claims against Dr. Wright and Nurse Verville. The case also will proceed on Walkers equal protection claim, which was not addressed in defendants Motion. Signed by Judge Janet C. Hall on 5/15/2018. (Anastasio, F.) Modified text on 5/15/2018 (Anastasio, F.).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

EUGENE LIONEL WALKER,
Plaintiff,
v.
CARSON WRIGHT, et al.
Defendants.

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CIVIL ACTION NO.
3:17-CV-425 (JCH)

MAY 15, 2018

RULING ON DEFENDANTS’ MOTION TO DISMISS AND/OR MOTION FOR
JUDGMENT ON THE PLEADINGS (DOC. NO. 39)
The plaintiff, Eugene Lionel Walker (“Walker”), currently incarcerated at CorriganRadgowski Correctional Center in Uncasville, Connecticut, has filed an Amended
Complaint pro se under section 1983 of title 42 of the United States Code. The
defendants are Dr. Carson Wright and Nurses Barbara Savoie, Shannon Lawrence,
Wanda Verville, Darnella Burke, and Debra Wilson. The defendants now move to
dismiss all claims. See Motion to Dismiss and/or Motion for Judgment on the Pleadings
(“Mot. to Dismiss”) (Doc. No. 39). They ask the court to consider their Motion as a
Motion for Judgment on the Pleadings as to Dr. Wright, the only defendant to have filed
an Answer, and a Motion to Dismiss as to all other defendants.
For the reasons that follow, the defendants’ Motion is granted in part.
I.

STANDARD OF REVIEW
To withstand a motion to dismiss filed pursuant to Federal Rule of Civil

Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The plausibility standard is not a probability requirement; the pleading
must show, not merely allege, that the pleader is entitled to relief. Id. When reviewing a
motion to dismiss, the court must accept the complaint’s factual allegations as true and
draw all reasonable inferences in the non-movant’s favor. Graziano v. Pataki, 689 F.3d
110, 114 (2d Cir. 2012). However, legal conclusions and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” are not
entitled to a presumption of truth. Ashcroft, 556 U.S. at 678.
The standard for granting a motion for judgment on the pleadings is identical to
that of a Rule 12(b)(6) motion to dismiss. Willey v. Kirkpatrick, 801 F.3d 51, 61–62 (2d
Cir. 2015) (noting that court employs same standard on motions for judgment on the
pleadings under Rule 12(c) and motions to dismiss under Rule 12(b)(6), namely
whether “the complaint contains sufficient factual matter that, if accepted as true, states
a plausible claim for relief.”).
II.

FACTS
On February 8, 2014, Walker was housed at Northern Correctional Institution

(“Northern”) as a pretrial detainee. He informed Nurse Savoie, while she was doing
rounds, that he was unable to move from his bunk because of severe back pain.
Walker also reported that the right side of his nose was clogged, and he was
experiencing pain behind his right eye. He asked to see a doctor. See Amended
Complaint (“Am. Compl.”) (Doc. No. 29) at ¶ 1. Savoie told Walker that the doctor was
2

at Northern only on certain days, but said that she would call the doctor and explain his
symptoms. See id. at ¶ 2. Nurse Savoie did so and told Walker that Dr. Wright had
prescribed Motrin and Flexeril for ten days. See id. at ¶ 3.
On February 11, 2014, Walker explained to Dr. Wright that the medication was
helping his back, but he still could not breathe through the right side of his nose and had
a heavy, painful feeling in his eyes and, now, also experienced a bad tasting fluid going
down the back of his throat. Dr. Wright told him to continue taking the Motion and
Flexeril for the prescribed period. See id. at ¶ 4. On February 19, 2014, Walker
submitted a written request to see the doctor because the painful pressure behind his
right eye was worsening, and he was having difficulty opening his eye. The other
symptoms had not changed. See id. at ¶ 5. Nurse Lawrence saw Walker on February
21, 2014. See id. at ¶ 6. After speaking with Dr. Wright, Nurse Lawrence told Walker
that his Motrin prescription had been renewed for three months. See id. at ¶ 7.
On March 2, 2014, Nurse Verville saw Walker for complaints of a swollen and
painful right eye and inability to sleep due to headaches and pain. Nurse Verville
diagnosed a stye in his eye and recommended warm compresses and Motrin. See id.
at ¶ 8. By March 5, 2014, Walker was experiencing drainage from his eye, an inability
to open his eye, recurring headaches, a clogged nose, a heavy feeling in his face, and
an inability to sleep. Nurse Lawrence questioned the diagnosis of a stye, but
recommended that Walker continue the compresses and Motrin. Nurse Lawrence
spoke with Dr. Wright who prescribed erythromycin ointment for Walker’s eye. See id.
at ¶ 9.
3

Over the next two weeks, Walker’s symptoms worsened. His cellmate reported
to custodial staff that Walker was stumbling and displaying unusual behavior. See id. at
¶ 10. Walker was taken by ambulance to the University of Connecticut Health Center
for evaluation. See id. at ¶ 11. On March 19, 2014, Walker underwent emergency
surgery for an intracranial cerebral abscess. See id. at ¶ 12. Doctors told Walker that
his condition had been life-threatening and was caused by an untreated sinus infection.
See id. at ¶¶ 13–14.
On August 9, 2016, Walker was a sentenced prisoner confined at Cheshire
Correctional Institution (“Cheshire”). He submitted a request to see Dr. Ruiz for
complaints of a severe headache and “funny feeling” in his face. See id. at ¶ 15. He
received no response. A few days later, Walker experienced multiple seizures. He
went into a coma after being rushed to the hospital. See id. at ¶ 16.
On the morning of February 23, 2017, Nurse Burke did not give Walker his antiseizure medication. See id. at ¶ 17. During morning recreation, Walker asked
Correctional Officer Reid (“Reid”) to contact the medical unit and tell them that he had
not received his medication. The medical unit stated that the log indicated that Walker
had received his medication. See id. at ¶ 18.
Walker began feeling dizzy and asked for his “PRN.”1 Reid called the medical
unit. Walker told Reid that he was not going to lock up in his cell because the medical

It is not clear to the court from the Amended Complaint what “PRN” stands for. See Am. Compl.
at ¶ 19 (using, without defining, the term “PRN”). Based on context, the court assumes the plaintiff is
referring to his medication.
1

4

staff said he could wait for the medication. See id. at ¶ 19. The unit manager contacted
the medical unit and was told to send Walker to the unit. See id. at ¶ 20.
Around noon, Walker saw Dr. Ruiz and explained that he had not received his
morning medication. Nurse Wilson told Dr. Ruiz that Walker had received his
medication and was lying. Walker asked Dr. Ruiz to have someone check the
surveillance footage. Dr. Ruiz asked Nurse Wilson to do so. See id. at ¶ 21.
Shortly thereafter, Nurse Wilson gave Walker his PRN medication and told him to
return to the housing unit even though Dr. Ruiz had told Walker to wait so they could
“figure out the problem.” Id. at ¶ 22. That same day, Walker wrote to the nursing
supervisor and submitted a grievance. He also requested that Deputy Warden Viger
preserve the surveillance footage. See id. at ¶ 23. On February 24, 2014, Walker was
transferred to Corrigan-Radgowski Correctional Center. See id. at ¶ 24.
During the three years since his emergency surgery, Walker has experienced
several hospital stays, including time in the intensive care unit, several weeks in the
prison infirmary, seizures, a coma, and countless doctor’s appointments and medical
procedures as well as retaliatory treatment by medical staff. See id. at ¶ 25. He has a
prominent scar several inches long from his hairline into his forehead. See id. at ¶ 26.
He experiences constant headaches and must take seizure medication, which also
causes headaches. He needs continuing medical care and is left with some permanent
impairment as a result of the untreated sinus infection. See id. at ¶ 27.
III.

DISCUSSION
First, Walker alleges that all defendants were deliberately indifferent to his
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serious medical needs in violation of his rights under the Eighth and Sixth Amendments.
See id. at 10–11. Second, he reasserts state law claims for negligence and medical
malpractice. See id. at 11. These claims were dismissed in the Initial Review Order
and are not revived by inclusion in the Amended Complaint.2 See Initial Review Order
(Doc. No. 9) at 10–11. Third, Walker alleges that his right to equal protection was
violated because sentenced inmates are housed in correctional facilities staffed by
doctors every day, while he, as a pretrial detainee, was housed in a facility with a doctor
only on some days.3 See Am. Compl. at 12.
The defendants Move to Dismiss the Amended Complaint on the ground that
Walker fails to state a cognizable claim against any defendant and the defendants are
protected by qualified immunity. The defendants direct their arguments only to Walker’s
claim of deliberate indifference to serious medical needs and do not address his equal
protection claim.
A.

Deliberate Indifference to Serious Medical Needs

Walker alleges two instances of deliberate indifference to serious medical needs,
one while he was a pretrial detainee at Northern Correctional Institution and one as a
sentenced inmate at Cheshire Correctional Institution. Rights of pretrial detainees are

2 The Initial Review Order permitted Walker to move to set aside the dismissal of the medical
malpractice claim if he submitted the required medical opinion letter. See Initial Review Order at 12.
However, Walker has neither submitted an opinion letter nor moved to set aside the dismissal. Therefore,
the medical malpractice claim has not been revived.
3

Walker dismissed all claims for retaliation against any of the defendants and all claims against
Dr. Ruiz. See Response to Defendant Ruiz’s Motion to Dismiss (Doc. No. 24); Motion to Dismiss (Doc.
No. 28). These claims are not included in the Amended Complaint.

6

considered under the Fourteenth Amendment, while rights of sentenced prisoners are
considered under the Eighth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017). Walker also references a Sixth Amendment right to medical care. The Sixth
Amendment guarantees the right to counsel and other protections for trials that may
result in the deprivation of liberty. U.S. Const. amend. VI. There are no reported cases
finding a right to medical care under the Sixth Amendment. The court will therefore
address Walker’s right to medical care as a pretrial detainee under the Fourteenth
Amendment. The Eighth Amendment applies to his post-conviction claims. Any alleged
claims under the Sixth Amendment are dismissed.
1.

Eighth Amendment Standard

The Supreme Court has held that deliberate indifference to a convicted prisoner’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). A claim of
deliberate indifference to serious medical needs contains both an objective and a
subjective component. See Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006).
First, as to the objective prong of the test, the alleged deprivation of medical care
must be “sufficiently serious.” See id. at 279 (quoting Farmer v. Brennan, 511 U.S. 825,
834 (1994)). This inquiry “requires the court to examine how the offending conduct is
inadequate and what harm, if any, the inadequacy has caused or will likely cause the
prisoner.” Id. A “sufficiently serious” deprivation can exist if the plaintiff suffers from an
urgent medical condition that is capable of causing death, degeneration, or extreme or
chronic pain. See Brock v. Wright, 315 F.3d 158, 162–63 (2d Cir. 2003); Hathaway v.
7

Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). A medical condition may not initially be
serious, but may become serious because it is degenerative and, if left untreated or
neglected for a long period of time, will “result in further significant injury or the
unnecessary and wanton infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136–37
(2d Cir. 2000). The Second Circuit has identified several factors that are “highly
relevant” to the question of whether a medical condition is sufficiently serious, including
“an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
Second, as to the subjective prong, the defendant prison official must have
“act[ed] with a sufficiently culpable state of mind.” Id. (quoting Hathaway, 99 F.3d at
66). This does not require “knowing and purposeful infliction of harm,” but “suffices if
the plaintiff proves that the official acted with deliberate indifference to inmate health.”
See Salahuddin, 467 F.3d at 279–80. Thus, the defendant must have been “actually
aware of a substantial risk that serious inmate harm would result” as a result of his or
her actions or inactions and have disregarded that risk. See id. The fact that a prison
official or employee “failed to alleviate a significant risk that he should have perceived,
but did not” does not constitute deliberate indifference. See Farmer, 511 U.S. at 838.
Furthermore, a showing of negligence or medical malpractice does not support
an Eighth Amendment claim, unless it involves culpable recklessness. See Hernandez
v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Thus, “not every lapse in prison medical
8

care will rise to the level of a constitutional violation.” See Smith v. Carpenter, 316 F.3d
178, 184 (2d Cir. 2003). In certain situations, however, “instances of medical
malpractice may rise to the level of deliberate indifference[,] namely, when the
malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison
doctor that evinces a conscious disregard of a substantial risk of serious harm.”
Hathaway, 99 F.3d at 553 (internal quotation marks and citation omitted).
2.

Fourteenth Amendment Standard

“A pretrial detainee’s claims of unconstitutional conditions of confinement are
governed by the Due Process Clause of the Fourteenth Amendment, rather than the
Cruel and Unusual Punishment Clause of the Eighth Amendment.” Darnell, 849 F.3d at
29. A pretrial detainee’s rights are “at least as great as the Eighth Amendment
protections available to a convicted prisoner.” Id. (citation omitted). Previously, the
analysis of the two prongs for deliberate indifference were the same, irrespective of
whether they were brought under the Eighth Amendment or the Fourteenth
Amendment. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009), overruled by
Darnell, 849 F.3d at 35. However, the Second Circuit in Darnell, relying on the
Supreme Court’s opinion in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), changed
the analysis under the second prong. See Darnell, 849 F.3d at 32–36.
The Second Circuit held that the second prong is more appropriately considered
the “mens rea” prong rather than the subjective prong. See id. at 29, 35. In contrast to
the Eighth Amendment, this prong is defined objectively under the Fourteenth
Amendment. See id. To satisfy the “mens rea” prong, “the pretrial detainee must prove
9

that the defendant-official acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the risk that the condition posed
to the pretrial detainee even though the defendant-official knew, or should have known,
that the condition posed an excessive risk to health or safety.” Id. (emphasis added).
While the Second Circuit’s holding in Darnell was applied to a claim of deliberate
indifference to unconstitutional conditions of confinement, a footnote in Darnell indicates
that “deliberate indifference means the same thing for each type of claim under the
Fourteenth Amendment.” See id. at 33 n.9. District courts in this Circuit have therefore
applied Darnell’s objective “mens rea” prong to claims of deliberate indifference to
serious medical needs under the Fourteenth Amendment. See Lloyd v. City of New
York, 246 F. Supp. 3d 704, 718–19 (S.D.N.Y. 2017); Feliciano v. Anderson, No. 15-CV4106 (LTS) (JLC), 2017 WL 1189747, at *10 (S.D.N.Y. Mar. 30, 2017); McKinney v.
New Haven Police Dep’t, No. 3:17-CV-1663 (JCH), 2017 WL 5137583, at *4 (D. Conn.
Nov. 6, 2017); Gonzalez-Torres v. Newson, No. 3:17-CV-00045 (SRU), 2017 WL
2369369, at *3 (D. Conn. May 31, 2017).
3.

Incident at Northern Correctional Institution

The incident at Northern Correctional Institution occurred while Walker was a
pretrial detainee. See Am. Compl. at ¶ 1. Therefore, the Fourteenth Amendment
standard applies. See Darnell, 849 F.3d at 29. The incident covered a period of six
weeks during which time, defendants Dr. Wright, Nurse Savoie, Nurse Lawrence, and
Nurse Verville provided treatment.
The defendants do not address the first prong of the deliberate indifference
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standard. See Mem. in Supp. at 10–12. Thus, for purposes of this Ruling, the court
assumes that Walker’s undiagnosed sinus infection and resulting intracranial cerebral
abscess are serious medical needs, satisfying the first prong of the Fourteenth
Amendment analysis. The court, therefore, need only determine whether the
allegations show that each defendant knew or should have known that these conditions
posed an excessive risk to Walker’s health.
The defendants contend Walker’s claim against Dr. Wright is merely for
misdiagnosis of a sinus infection, arguing that the more serious symptoms did not
present until after Dr. Wright last saw Walker. See Mem. in Supp. at 11–12. They
argue that “a claim of misdiagnosis, faulty judgment, or malpractice without more to
indicate deliberate indifference, is not cognizable under Section 1983.” Mem. in Supp.
at 11 (quoting Torres v. Trombly, 421 F. Supp. 2d 527, 531 (D. Conn. 2006)).4
However, determining whether the medical provider’s conduct was merely misdiagnosis
or rose to the level of deliberate indifference “may be difficult in the context of a motion
to dismiss—a stage at which the court does not have the benefit of expert opinion.” See
Davis v. McCready, 283 F. Supp. 3d 108, 122 (S.D.N.Y. 2017).
The allegations show that Walker’s symptoms were relayed to Dr. Wright three
times by nurses and once by Walker himself. See Am. Compl. at ¶¶ 3, 4, 7, 9. His
symptoms included back pain, clogged nose, eye pain and swelling, difficulty breathing,

The court notes that Torres is an Eighth Amendment case, decided prior to the Second Circuit’s
distinction between the Eighth Amendment and Fourteenth Amendment standards in Darnell. See
Torres, 421 F. Supp. 2d at 531.
4

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fluid in the throat, headaches, difficulty sleeping, and “a weird, heavy feeling in [his]
face.” See id. Although the symptoms increased in severity each time, Dr. Wright
prescribed only Motrin and Flexeril after the first three reports and an ointment to
address only one of the symptoms after the fourth report. See id. Drawing all
inferences in favor of the plaintiff, the court could infer that Dr. Wright did not merely
misdiagnose Walker’s condition, but rather ignored his escalating symptoms. For
instance, despite the fact that Walker’s symptoms were worsening rather than
improving, he maintained the same prescription after the first three reports. The
allegations are sufficient to support a claim that Dr. Wright should have known that the
symptoms required treatment and without treatment could pose an excessive risk to
Walker’s health. Rather than a disagreement over diagnosis or treatment, the
allegations support a plausible claim against Dr. Wright for denial of treatment for
Walker’s serious medical need.
The defendants also claim that Dr. Wright could not have been deliberately
indifferent because he treated Walker’s back issues. They provide no authority
supporting this contention. At least one case indicates that treating one condition does
not necessarily preclude liability for deliberate indifference as to another condition. See
Pizarro v. Gomprecht, No.10 CV 4803(KAM)(LB), 2013 WL 990998, at *13 (E.D.N.Y.
Feb. 13, 2013) (finding no deliberate indifference where doctor prioritized medical needs
and inmate did not report problem, but noting “[t]his not to say that because a doctor
treats one condition, they cannot be deliberately indifferent to another”).
Given the alleged severity and worsening of Walker’s symptoms, the court
12

concludes that it is plausible that a reasonable physician in Dr. Wright’s position would
have known that prescribing merely Motrin, Flexeril, and eye ointment posed an
excessive risk to Walker’s health and safety. Therefore, Walker has stated a plausible
claim for relief, and the defendants’ Motion is denied as to the claim against Dr. Wright.
See Davis, 283 F. Supp. 3d at 123.
Three nurses, Nurse Savoie, Nurse Lawrence, and Nurse Verville, are also
referenced in this deliberate indifference claim. Nurse Savoie saw Walker one time.
See Am. Compl. at ¶¶ 1–3. As Dr. Wright was not in the facility on that day, she relayed
the plaintiff’s symptoms and complaints to Dr. Wright and followed his instructions. See
id. Nurse Lawrence saw Walker twice. See id. at ¶¶ 6–7, 9. Each time, she relayed his
symptoms and complaints to Dr. Wright, told Walker what Dr. Wright said, and followed
his instructions. See id. The defendants contend that the nurses acted appropriately in
relaying information to Wright and following his instructions. See Mem. in Supp. at 10.
Walker does not allege that either nurse inaccurately described his symptoms or
did not follow Dr. Wright’s instructions. Rather, Walker’s allegations suggest that
Nurses Savoie and Lawrence acted appropriately. Thus, the allegations against them
do not state a plausible deliberate indifference claim. See Solek v. Naqvi, No. 3:16-cv947(JAM), 2016 WL 7007475, at *4 (D. Conn. Nov. 28, 2016) (“Although plaintiff alleges
that defendant Doe failed to treat his eye injury, he also alleges that she determined the
eye injury was sufficiently serious to warrant examination by Dr. Naqvi. Summoning the
on-call doctor to treat a potentially serious injury does not constitute deliberate

13

indifference to a serious medical need.”).5 The defendants’ Motion to Dismiss is
granted as to the claims against Nurses Savoie and Lawrence.
Finally, Nurse Verville saw Walker once, after he had been seen by Dr. Wright,
Nurse Savoie, and Nurse Lawrence. See Am. Compl. at ¶ 8. He complained of a
swollen and painful right eye, headaches, and difficulty sleeping as a result of the pain.
See id. She suggested that he might have a stye and recommended warm
compresses, in addition to the Motrin already prescribed by Dr. Wright. See id. She did
not contact Dr. Wright to obtain instructions regarding Walker’s worsening symptoms.
The defendants make a similar argument regarding the claim against Nurse
Verville as they do the claim against Dr. Wright. See Mem. in Supp. at 10–11. They
argue that she examined and treated Walker, and that her misdiagnosis does not rise to
the level of deliberate indifference. See id. The court reaches the same conclusion
here as it did with Dr. Wright. In light of the length of time Walker had been
experiencing the symptoms and the existence of symptoms not related to his eye, the
allegations permit the inference that Nurse Verville should have known that the
condition could be serious and should therefore have contacted Dr. Wright. Because
the court must draw all inferences in favor of the plaintiff, the court concludes that
Walker has stated a plausible claim of deliberate indifference against Nurse Verville.
Therefore, the Motion to Dismiss is denied as to the claim against Nurse Verville.

The court notes that Solek is an Eighth Amendment case, decided prior to the Second Circuit’s
distinction between the Eighth Amendment and Fourteenth Amendment standards in Darnell. See Solek,
2016 WL 7007475, at *4. However, the court believes the same result would be warranted under
Darnell’s articulation of the second prong of the Fourteenth Amendment standard.
5

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4.

Incident at Cheshire Correctional Institution

The second deliberate indifference claim occurred while Walker was a sentenced
prisoner at Cheshire Correctional Institution. See Am. Compl. at ¶ 15. Therefore, the
Eighth Amendment standard applies to this claim. Walker alleges that Nurse Burke
failed to give him his seizure medication on one morning. See id. at ¶ 17. When he
complained to Dr. Ruiz about the missing medication, Nurse Wilson stated that Walker
had received the medication and accused him of lying. See id. at ¶ 21. After Dr. Ruiz
instructed Wilson to check surveillance footage, she gave him the medication and
instructed him to return to his cell even though Dr. Ruiz had indicated his intention to
have Walker wait and resolve the issue. See id. at ¶ 22.
Under the first prong of the Eighth Amendment analysis, seizures are
considered a serious medical need. See, e.g., Harrington v. Vadlamudi, No. 9:13-CV0795(BKS/DJS), 2016 WL 4570441, at *7 (N.D.N.Y. Aug. 9, 2016) (“A seizure condition
is a serious medical condition and a failure to respond to an inmate’s complaints
regarding the possible onset of a seizure may constitute a sufficiently serious
deprivation of medical care.”). In this case, Walker’s allegations against Nurse Burke
and Nurse Wilson amount, not to a denial of treatment, but rather to a delay of
treatment from the morning, when he was supposed to receive his medication, to
sometime after noon. See Am. Compl. at ¶¶ 17, 21. Where the claim is for a delay in
treatment rather than a denial of all treatment, the court must consider the effect of the
delay, not the underlying condition alone, when determining whether the alleged
deprivation is sufficiently serious to warrant Eighth Amendment protection. Smith v.
15

Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (citing Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998)). “[I]t’s the particular risk of harm faced by a prisoner due to the
challenged deprivation of care, rather than the severity of the prisoner’s underlying
medical condition, considered in the abstract, that is relevant for Eighth Amendment
purposes.” Id.
In Smith, the court considered two delays, of seven and five days, in providing
HIV medication. See id. at 181. The inmate showed no evidence that his HIV infection
or overall health was affected by the delay in medication and complained only of
temporary itching, severe headaches, and stress. See id. at 181–82. The court
concluded that the inmate’s medical need was not serious, stating that a serious
medical need may be absent where, “although an inmate suffers from an admittedly
serious medical condition[,] . . . the alleged lapses in treatment are minor and
inconsequential.” Id. at 186–87.
Walker’s claim is that he was not given his morning dose of seizure medication
until sometime after noon. See Am. Compl. at ¶¶ 17, 21. During that time, Walker
alleges that he experienced dizziness. See id. at ¶¶ 19, 22. He alleges no other
symptoms or consequences resulting from the delay in medication. See id. at 17–22.
In some instances, courts considering claims for delay in treatment have held that
subjective symptoms, including dizziness, do not rise to the level that would make a
delay in medication a serious deprivation. See, e.g., Hanrahan v. Menon, No. 9:07-CV610, 2010 WL 6427650, at *8–9 (N.D.N.Y. Dec. 15, 2010) (holding, at a summary
judgment stage, that a claim that the plaintiff suffered from “feeling low,” sleep
16

problems, and periodic panic attacks involving dizziness, chest pains, and difficulty
breathing during a two-month delay in treatment was insufficient to establish a serious
deprivation of medical care); Brown v. White, No. 9:08-CV-200 (GLS/ATB), 2010 WL
985184, at *9–*10 (N.D.N.Y. Mar. 15, 2010) (holding, also on summary judgment, that
an inmate who suffered chronic lower back pain and occasional headaches and
dizziness during a three-month delay in treatment had not raised a genuine issue of fact
as to whether he suffered a serious deprivation of medical care).
Given that Walker has alleged no detriment to his health beyond temporary
dizziness for part of one day, he has not alleged sufficient facts to state a plausible
claim that the delay in treatment constituted a serious deprivation of medical care. Even
accepting his allegations as true and drawing all inferences in his favor, the court
concludes that he has failed to state a claim for deliberate indifference to a serious
medical need. Accordingly, the defendants’ Motion to Dismiss is granted as to the
claims against Nurses Burke and Wilson.
B.

Qualified Immunity

The defendants next argue that they are protected by qualified immunity. See
Mem. in Supp. at 12–14. The court has granted the defendants’ Motion as to all
defendants, except Dr. Wright and Nurse Verville. Thus, the court will only consider
whether these two defendants are protected by qualified immunity. The defendants
here are sued for damages and are named in their individual capacities only.6

6

In the prayer for relief, Walker includes a request for injunctive relief. See Am. Compl. at ¶ B.
However, injunctive relief may be obtained from state officials only in their official capacity. Kuck v.
Danaher, 822 F. Supp. 2d 109, 148 (D. Conn. 2011); Marsh v. Kirschner, 31 F. Supp. 2d 79, 80 (D. Conn.

17

The doctrine of qualified immunity “shields government officials from civil
damages liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.” Reichle v. Howards, 566
U.S. 658, 664 (2012). “A clearly established right is one that is ‘sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right.” Mullenix v. Luna, 136 S. Ct. 305, 314–15 (2015) (quoting Saucier v. Katz, 533
U.S. 194, 202 (2001) (internal quotation marks omitted)). Saucier v. Katz established a
two-step sequence for evaluating qualified immunity claims: first, deciding “whether the
facts that a plaintiff has alleged . . . make out a violation of a constitutional right” and,
second, “whether the right at issue was “clearly established at the time of defendant’s
alleged misconduct.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court in
Pearson v. Callahan later determined that the sequence in Saucier is not mandatory
and that courts “should be permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223,
236 (2009).
In evaluating whether a right is clearly established, the court must find the
contours of the right “‘sufficiently definite that any reasonable official in [the defendant’s]
shoes would have understood that he was violating it,’ meaning that ‘existing precedent
. . . placed the statutory or constitutional question beyond debate.’” City & Cty. of San

1998). As all defendants are named in the Amended Complaint only in individual capacities, see Am.
Compl. at 1, all requests for injunctive relief are not cognizable and are dismissed.

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Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)). Although the Supreme Court does not require a case
directly on point, “‘clearly established law’ should not be defined ‘at a high level of
generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citation omitted). “[T]he clearly
established law must be ‘particularized’ to the facts of the case.” Id. “This exacting
standard ‘gives government officials breathing room to make reasonable but mistaken
judgments’ by ‘protect[ing] all but the plainly incompetent or those who knowingly violate
the law.” Sheehan, 135 S. Ct. at 1774 (quoting al-Kidd, 563 U.S. at 744).
In raising a qualified immunity defense at the motion to dismiss stage rather than
on summary judgment, the defendants “must accept the more stringent standard
applicable to this procedural route.” See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.
2004). “Not only must the facts supporting the defense appear on the face of the
complaint, but, as with all Rule 12(b)(6) motions, the motion may be granted only where
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
that would entitle him to relief.” Id. (internal quotation marks and citation omitted).
“Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only
those that support his claim, but also those that defeat the immunity defense.” Id.
The court therefore accepts as true all allegations in the Amended Complaint and
draws all reasonable inferences based on those facts that would defeat the immunity
defense. Walker alleges that Dr. Wright prescribed only Motrin, Flexeril, and an eye
ointment for his multiple complaints of difficulty breathing, a heavy painful feeling in his
eye, bad tasting fluid in his throat, pressure behind his eye, severe headaches, heavy
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feeling in his face, inability to open his eye, and excessive discharge from his eye. See
Am. Compl. at ¶ 2–9. Although Dr. Wright was informed several times over the course
of a month that Walker’s symptoms were worsening, despite the prescription for Motrin
and Flexeril, he did not adjust his treatment to respond to Walker’s symptoms. See id.
Additionally, Nurse Verville did not contact Dr. Wright about Walker’s symptoms. See
Am. Compl. at ¶ 8. Instead, she diagnosed a stye and recommended warm
compresses in addition to Motrin. See id. The court has determined above that these
allegations state a plausible claim that Dr. Wright and Nurse Verville should have known
that the symptoms required treatment and, without treatment, could pose an excessive
risk to Walker’s health. These alleged facts permit the reasonable inference that all
reasonable officials would have known that they were violating a clearly established
right. Therefore, Walker has sufficiently alleged facts that state a claim of violation of
clearly established law.
The defendants’ argument to the contrary is conclusory and does not articulate
reasons either that the law is not clearly established or that a reasonable officer would
not know that these actions violated the law. The defendant’s Memorandum merely
states, “In the instant case, there is no basis for even believing that the Defendants
violated any constitutional rights of Plaintiff. Because none of these alleged actions are
sufficient to impose liability, much less overcome qualified immunity, the Defendants are
entitled to qualified immunity and to have all claims dismissed.” Mem. in Supp. at 14.
These conclusory statements do not identify facts pled in the Amended Complaint that
support the defendant’s qualified immunity defense. Given the reasonable inferences
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that can be drawn from Walker’s allegations, the defendants have not satisfied the
“more stringent standard” required to prevail on qualified immunity in a Motion to
Dismiss. See McKenna, 386 F.3d at 436.
The Motion to Dismiss is denied on grounds of qualified immunity. However, the
court notes that the defendant is entitled to raise the qualified immunity defense again at
successive stages of the litigation. See Behrens v. Pelletier, 516 U.S. 299, 306–07
(1996) (“Even if the plaintiff’s complaint adequately alleges the commission of acts that
violated clearly established law, the defendant is entitled to summary judgment if
discovery fails to uncover evidence sufficient to create a genuine issue as to whether
the defendant in fact committed those acts.” (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)); Hyman v. Abrams, 630 Fed. App’x 40, 42 (2d Cir. 2015).
IV.

CONCLUSION
The defendants’ Motion to Dismiss and for Judgment on the Pleadings (Doc. No.

39) is GRANTED as to the claims against Nurse Savoie, Nurse Lawrence, Nurse Burke,
and Nurse Wilson, and DENIED as to the claims against Dr. Wright and Nurse Verville.
Any claims for injunctive relief are also dismissed. The case will proceed on the
Fourteenth Amendment deliberate indifference claims against Dr. Wright and Nurse
Verville. The case also will proceed on Walker’s equal protection claim, which was not
addressed in defendants’ Motion.

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SO ORDERED.
Dated at New Haven, Connecticut, this 15th of May, 2018.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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