Ingram v. Sochacki et al

Filing 45

ORDER granting in part and denying in part 37 Motion to Dismiss; granting 41 Motion to Amend/Correct for the reasons set forth in the attached. Signed by Judge Kari A. Dooley on 10/9/18. (Dooley, Kari)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN INGRAM,
Plaintiff,
v.
DAVID SOCHACKI, D.D.S., et al.
Defendants.

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No. 3:17-cv-870 (KAD)

October 9, 2018

________________________________________________________________________
RULING ON MOTION TO DISMISS (Doc. No. 37) AND
MOTION FOR LEAVE TO AMEND COMPLAINT (Doc. No. 41)
Preliminary Statement of the Case
On May 24, 2017, the plaintiff, John Ingram, a prisoner currently confined at the
Cheshire Correctional Center (“Cheshire”) in Connecticut, filed a complaint pro se under
42 U.S.C. § 1983 against several state correctional dental care professionals for violating
his rights under the Eighth and Fourteenth Amendments of the United States
Constitution. Compl. (Doc. No. 1). Therein, he claims that the defendants acted with
deliberate indifference to his dental needs by needlessly extracting several of his teeth
and ignoring his requests for pain medication. Upon initial review of the complaint, the
court determined that these constitutional claims were facially plausible as pled against
the following defendants in their individual capacities: Dr. David Sochacki, Dr. John F.
Dupont, Dr. Peter O’Shea, and Dr. Victor Shivy. Initial Review Order (Doc. No. 5). The
court also permitted the plaintiff’s claims against Dr. Richard Benoit, the Director of

Dental Services for Correctional Managed Health Care (“CMHC”), in his official
capacity for declaratory and injunctive relief. 1 Id.
After service of the initial complaint, the plaintiff filed two amended complaints
on May 2, 2018 and May 31, 2018. (Doc. Nos. 30, 36). The court granted his first
motion to amend the complaint; Order No. 35; but before it could rule on the second
amended complaint (Doc. No. 36), the defendants filed the instant motion to dismiss that
complaint under Fed. R. Civ. P. 12(b)(6). (Doc. No. 37). On August 10, 2018, the
plaintiff filed both an opposition to the defendants’ motion to dismiss the second
amended complaint and a motion for leave to file a third amended complaint. (Doc. Nos.
42 and 41). The defendants thereafter filed an objection to the plaintiff’s motion for
leave to file the third amended complaint, contending that they did not give consent to the
amendment and that the attempt to amend is futile because the claims stated in the third
amended complaint nevertheless fail to state a claim upon which relief could be granted.
(Doc. No. 43).
In keeping with the principle of construing pro se filings liberally, and for
purposes of clarity, the court considers the amended factual allegations in the plaintiff’s
third amended complaint (Doc. No. 41-1) along with his written opposition in ruling on
the motion to dismiss. See Armand v. Osborne, No. 11-CV-4182 (NGG), 2014 WL
723381, *6 (E.D.N.Y. Feb. 24, 2014) (court considers motion to amend in conjunction
with additional factual allegations in opposition to motion to dismiss); Lumaj v. Williams,
No. 03-CIV-1849 (PKC), 2004 WL 1207894, *2 (S.D.N.Y. Jun. 2, 2004) (court

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In his initial complaint, the plaintiff stated that he was suing Benoit only in his
official capacity. He has since withdrawn his official capacity claim and is now suing all
defendants in their individual capacities for monetary, injunctive, and declaratory relief.
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considered whether allegations stated in amended pleading, if true, would withstand
motion to dismiss). Thus, the motion for leave to amend the complaint is GRANTED.
The clerk is directed to docket the third amended complaint (Doc. No. 41-1) as a separate
entry. The plaintiff is hereby notified that the third amended complaint constitutes the
operative complaint. No further amendments to his complaint will be permitted absent a
showing of good cause.
For purposes of the motion to dismiss, the third amended complaint shall be
considered the operative pleading. For the following reasons, the motion to dismiss is
GRANTED in part and DENIED in part.
Standard of Review
To withstand scrutiny under Rule 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 . . . plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant[s] [are]
liable for the misconduct alleged.” Id. The plausibility standard is not a probability
requirement; the complaint must show, not merely allege, that the plaintiff is entitled to
relief. See id.
“Although all allegations contained in the complaint are assumed to be true, this
tenet is ‘inapplicable to legal conclusions.’” LaMagna v. Brown, 474 F. App’x 788, 789
(2d Cir. 2012) (quoting Ashcroft, 556 U.S. at 678). See also Amaker v. New York State
Dept. of Corr. Servs., 435 F. App’x 52, 54 (2d Cir. 2011) (same). Accordingly, the court
is not “bound to accept conclusory allegations or legal conclusions masquerading as

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factual conclusions.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)
(quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks
omitted)). Consequently, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555).
“Where . . . the complaint was filed pro se, it must be construed liberally with
‘special solicitude’ and interpreted to raise the strongest claims that it suggests.” Hogan
v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011)). Nevertheless, a pro se plaintiff’s complaint still must “state a claim to
relief that is plausible on its face.” Mancuso v. Hynes, 379 F. App’x 60, 61 (2d Cir.
2010) (quoting Ashcroft, 556 U.S. at 678). Therefore, even in a pro se case, “threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted).
Factual Allegations
The plaintiff alleges the following facts in his third amended complaint. (Doc.
No. 41-1). In July 2012, the plaintiff wrote a request to the dental department at
Cheshire complaining of severe pain in his lower front teeth. 3d Am. Compl. ¶ 15.
The plaintiff had been taking ibuprofen for his pain for two to three weeks, but it was
ineffective in alleviating the pain. Id. In his written complaint, the plaintiff requested a
root canal for his teeth. Id. at ¶ 16. He waited three weeks before he was able to see a
dentist. Id.

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In August 2012, the plaintiff was examined by Dr. Shivy “and/or” Dr. Sochacki.
Id. at ¶ 17. Sochacki took x-rays of the plaintiff’s lower front teeth. Id. at ¶ 18. Then,
he “and/or” Shivy informed the plaintiff that his number 23 and 24 teeth needed to be
extracted because the CMHC does not allow for root canals. Id. at ¶ 19. The doctors
gave the plaintiff pain medication and scheduled him for the teeth extraction procedure.
Id. at ¶ 20.
Over the next several weeks, the plaintiff continued to experience severe pain in
his lower front teeth. Id. at ¶ 21. The pain medication that Shivy and Sochacki provided
was ineffective in alleviating his pain. Id. The plaintiff wrote another inmate request and
an administrative grievance regarding his pain and the inadequacy of the pain medication,
but both documents went unanswered. Id. at ¶¶ 22-24.
In September 2012, the plaintiff underwent the teeth extraction “after being told
once again by [Dr.] Dupont or again by [Dr.] Sochacki” that the CMHC does not perform
root canals. Id. at ¶ 26. After the procedure, the plaintiff was denied pain medication. Id.
at ¶ 27. One or two days later, he once again began experiencing severe pain in the area
of his lower front teeth. Id. at ¶ 28.
On September 12, 2012, the plaintiff wrote a request to the dental unit for pain
medication, but the request went unanswered. Id. at ¶¶ 29-30. Sochacki “should have
called [him] down” for an appointment because he managed the dental unit at Cheshire
but did not do so. Id. at ¶ 29. Days later, the plaintiff wrote another request complaining
about the pain in his mouth. Id. at ¶ 31.
In October 2012, Sochacki and Shivy evaluated the plaintiff again and informed
him that teeth numbers 25 and 26 also needed to be extracted. Id. at ¶¶ 32-33. None of

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the dentists recorded a reason for ordering the extraction in the plaintiff’s dental records.
Id. at ¶ 34. The plaintiff verbally requested pain medication and that the dentists perform
a root canal, but his requests were denied. Id. at ¶¶ 35-36.
Over the course of the next month, the plaintiff continued to suffer excruciating
pain and was unable to eat solid foods. Id. at ¶ 37. He wrote another request for pain
medication, but it went unanswered. Id. at ¶ 38.
In November 2012, Dupont and Sochacki extracted teeth numbers 25 and 26. Id
at ¶ 40. Dupont “and/or” Sochacki explained to the plaintiff that the extraction of those
teeth would make him eligible to receive partial dentures, but the plaintiff needed to have
seven teeth extracted to receive partial dentures. Id. at ¶ 41.
Approximately two years later, on June 12, 2014, Sochacki and Dr. O’Shea
extracted the plaintiff’s right upper molar because it had an “abscess, pulpitis, heavy
tartar, heavy plaque, mobility and hypersensitivity.” Id. at ¶ 51. The plaintiff contends
that the molar should not have been extracted. Id. at ¶ 52. Instead, the plaintiff should
have received a treatment plan to save the tooth. Id. He disputes that the problems with
his tooth warranted extraction. Id. at ¶ 53.
Two years after this tooth extraction, in June 2016, the plaintiff had a routine
dental examination with Dr. Lichtenstein. Id. at ¶ 43. Lichtenstein reviewed the x-rays
taken in August 2012 by Sochacki and concluded that two of his lower front teeth should
not have been extracted. Id. at ¶¶ 43-44.
The plaintiff never consented to having any of his teeth extracted. Id. at ¶ 45. He
contends that Dupont, Shivy, and Sochacki “should have reviewed the x-rays of [teeth
numbers] 23, 24, 25, [and] 26 before deciding to extract [them].” Id. at ¶ 47. By

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extracting his teeth, Dupont, Shivy, Sochacki, and O’Shea caused the plaintiff to have a
severely weakened bite in two different areas of his mouth. Id. at ¶¶ 49-50, 54.
Dr. Richard Benoit is the Director of Dental Services for CMHC. Id. at ¶ 56. He
is aware that the dental care provided to inmates in the care of the Department of
Correction (“DOC”) is below minimum industry standards. Id. at ¶ 58. Benoit “created a
policy or custom of pulling teeth only in order to avoid [costly] root canals.” Id. at ¶ 59.
He also “failed to train Sochacki, Dupont, Shivy, and O’Shea to perform adequate dental
and preventative dental care.” Id. at ¶ 60.
Discussion
The defendants raise four principal arguments in support of their motion to
dismiss. First, they argue that the plaintiff has failed to sufficiently allege Sochacki’s
personal involvement in the alleged constitutional violations. Second, they argue that the
claims against Shivy and Dupont are barred by the three-year statute of limations. Third,
they argue that the plaintiff has failed to state an Eighth Amendment claim against
O’Shea. Finally, the defendants contend that the plaintiff cannot state a supervisory
liability claim against Benoit. The plaintiff disagrees with the merits of each of these
arguments and counters that he has stated plausible claims against all defendants.
Claims against Sochacki
Sochacki seeks dismissal of the claims against him because, he argues, the
plaintiff failed to allege his personal involvement in any of the alleged constitutional
deprivations. The argument is, necessarily, based on the allegations in the plaintiff’s
second amended complaint (Doc. No. 36). Insofar as the court granted the plaintiff’s

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motion for leave to amend his complaint, the court considers the defendant’s argument
against the allegations in the third amended complaint.
It is well settled that a plaintiff must allege facts showing a defendant’s personal
involvement in a constitutional deprivation in order to recover damages against that
defendant in a § 1983 action. See Ashcroft, 556 U.S. at 676 (plaintiff must plead that
each government official, through his own actions, violated the Constitution); Grullon v.
City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“[I]n order to establish a
defendant’s individual liability in a suit brought under § 1983, a plaintiff must show, inter
alia, the defendant’s personal involvement in the alleged constitutional deprivation”). A
plaintiff may meet this burden by alleging, inter alia, that: (1) the defendant directly
participated in the deprivation; (2) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or (3) the defendant exhibited deliberate
indifference to his rights by failing to act on information indicating that unconstitutional
acts were occurring. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001).
Here, construing liberally the allegations in the third amended complaint, the
plaintiff has stated a plausible Eighth Amendment claim against Sochacki. He alleges
that Sochacki participated in the needless extraction of his lower front teeth and molar
and denied him pain medication on several occasions. See 3d Am. Compl. ¶¶ 19, 27, 3536, 51. Although the plaintiff’s allegations against Sochacki in the second amended
complaint were sparse on this issue, the allegations in the third amended complaint
provide sufficient allegations as to Sochacki’s role in his treatment. The motion to
dismiss the claims against Sochacki on this basis is therefore DENIED.
Claims against Shivy and Dupont

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Shivy and Dupont seek dismissal of the claims against them because, they aver,
the claims are barred by the applicable statute of limitations. Section 1983 claims arising
in Connecticut are governed by the three-year limitations period set forth in Conn. Gen.
Stat. § 52-577. Harnage v. Torres, 665 F. App’x 82, 83 (2d Cir. 2016); Lounsbury v.
Jeffries, 25 F.3d 131, 132-34 (2d Cir. 1994). “Although a federal court looks to state law
to determine the applicable statute of limitations for claims arising under section 1983, it
must look to federal law to determine when a federal claim accrues.” Castillo v. Hogan,
14 Civ. 1166 (VAB), 2016 WL 706167, *3 (D. Conn. Feb. 22, 2016) (citing Wallace v.
Kato, 549 U.S. 384, 388 (2007)). A claim accrues when a plaintiff “knows or has reason
to know of the injury which is the basis of his action.” Harnage, 665 F. App’x at 83
(quoting Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013)). Because the statute of
limitations is an affirmative defense, the burden is on the defendants to establish when
the constitutional claims accrued and when the limitations period expired. Fed. R. Civ. P.
8(c); Egan v. Kennedy, No. 04-CV-6626 (CJS), 2008 WL 4647740, *3 (W.D.N.Y. Oct.
17, 2008) (quoting Omollo v. Citibank, N.A., No. 07-CIV-9259 (SAS), 2008 WL
1966721, *3 (S.D.N.Y. May 6, 2008)).
Here, all of the allegations against Shivy and Dupont concern conduct from 2012,
undisputedly more than three years prior to the commencement of this civil action in May
2017. Both Shivy and Dupont were involved in the extraction of the plaintiff’s lower
front teeth in September and November of 2012. The plaintiff contends, however, that it
was not until his appointment with Dr. Lichtenstein in June of 2016 when he discovered
that two of his lower front teeth should not have been extracted and could have been
saved. Thus, the plaintiff argues that his claim did not accrue until June 2016. The

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plaintiff is wrong. “Delay in discovering the cause of the injury does not prevent the
claim from accruing—‘In applying a discovery accrual rule, we have been at pains to
explain that discovery of the injury, not discovery of the other elements of a claim, is
what starts the clock.’ Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d
1047 (2000).” Gonzalez v. Wright, 665 F. Supp. 2d 334, 348–49 (S.D.N.Y. 2009).
Moreover, the plaintiff’s contention is belied by the allegations in his complaint,
that the extraction of his teeth in 2012, combined with the denial of pain medication over
the course of several months in 2012, amounted to deliberate indifference to his dental
needs. In light of these allegations, it is manifest that the plaintiff knew in late 2012 that
the treatment he received from Dupont and Shivy, or lack thereof, was causing him
severe pain and that the defendants were denying him pain medication. He also knew at
that time that the defendants chose to extract his teeth because the CMHC did not permit
root canals. Therefore, the plaintiff’s claims against Shivy and Dupont are outside the
statute of limitations for such claims.
In response, the plaintiff invokes the continuing violation doctrine to argue that
his claims did not accrue until a later date. “The continuing violation doctrine is an
‘exception to the normal knew-or-should-have-known accrual date.’” Shomo v. City of
New York, 579 F.3d 176, 181 (2d Cir. 2009) (quoting Harris v. City of New York, 186
F.3d 243, 248 (2d Cir. 1999)). “When [a] plaintiff brings a [s]ection 1983 claim
challenging a discriminatory policy, ‘the commencement of the statute of limitations
period may be delayed until the last discriminatory act in furtherance of it.’” Id. (quoting
Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994)).
In Shomo, the Second Circuit held that “the continuing violation doctrine can

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apply when a prisoner challenges a series of acts that together comprise an Eighth
Amendment claim of deliberate indifference to serious medical needs.” In order for the
doctrine to apply, the “plaintiff must ‘allege both the existence of an ongoing policy of
[deliberate indifference to his or her serious medical needs] and some non-time-barred
acts taken in the furtherance of that policy.” Id. (quoting Harris, 186 F.3d at 250)); see
also Benitez v. Parmer, No. 9:12-CV-0448 (GTS/DEP), 2013 WL 5310245, *15
(N.D.N.Y. Jul. 8, 2013). The doctrine does not apply to discrete acts of unconstitutional
conduct that are not traceable to the alleged policy of deliberate indifference. See id.
The plaintiff’s reliance on the continuing violation doctrine to save his claims
against Dupont and Shivy is misplaced. Although he alleges that there exists an ongoing
policy in DOC facilities of extracting teeth over performing root canals, there are no
allegations that Dupont or Shivy committed any “non-time-barred” acts in furtherance of
that policy. As indicated, Dupont and Shivy treated the plaintiff in 2012, four and onehalf years before the filing of the instant action. “The Second Circuit's decision [in
Shomo] … made clear that in order for the continuing violation doctrine to apply [to
claims against specific individuals], [a ] plaintiff [must]… show that those specific
individuals committed at least one wrongful act within the statutory time period.”
Gonzalez v. Wright, 665 F. Supp. 2d 334, 350 (S.D.N.Y. 2009).
The motion to dismiss the Eighth Amendment claims against Dupont and Shivy is
GRANTED.
Claim against O’Shea
O’Shea seeks dismissal of the claim against him insofar as the plaintiff has failed
to state a plausible claim of deliberate indifference to his serious medical needs.

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Deliberate indifference to a prisoner’s serious medical and dental needs constitutes cruel
and unusual punishment under the Eighth Amendment. See Estelle v. Gamble, 429 U.S.
97, 104 (1976); Harrison v. Barkley, 219 F.3d 132 (2d Cir. 2000). To state a claim for
deliberate indifference to a serious medical or dental need, the plaintiff must show both
that his need was serious and that defendants acted with a sufficiently culpable state of
mind. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle, 429 U.S.
at 105).
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 be “one that may produce death, degeneration, or extreme
pain.” See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
marks omitted). There is no claim in this motion that the plaintiff’s condition did not
present a serious dental need.
Subjectively, defendants must have been actually aware of a substantial risk that
plaintiff would suffer serious harm as a result of their actions or inactions. See
Salahuddin v. Goord, 467 F.3d 263, 280–81 (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 Salahuddin, 467 F.3d at 280.
“Medical malpractice does not become a constitutional violation merely because the
victim is a prisoner.” Estelle, 429 U.S. at 106. In addition, a difference of opinion
regarding what constitutes an appropriate response and/or treatment to the prisoner’s
medical conditions does not establish an Eighth Amendment claim. See Ventura v.

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Sinha, 379 F. App’x 1, 2–3 (2d Cir. 2010); Chance v. Armstrong, 143 F.3d 698, 703 (2d
Cir. 1998). The act complained of must “shock[] the conscience” by constituting a “[a]
complete denial of, or intentional effort to delay access to, medical care, or a reckless or
callous indifference” to the plaintiff’s well-being. See McCloud v. Delaney, 677 F. Supp.
230, 232 (S.D.N.Y. 1988) (quoting United States ex rel. Hyde v. McGinnis, 429 F.2d 864
(2d Cir. 1970); citing Harding v. Kuhlmann, 588 F. Supp. 1315 (S.D.N.Y. 1984)).
Construing the plaintiff’s allegations liberally, his Eighth Amendment claim
against O’Shea is based on the unnecessary extraction of his upper right molar in June
2014, to which he did not consent. The extraction caused the plaintiff to suffer from a
severely weakened bite. The plaintiff further avers that the extraction was performed in
furtherance of an unconstitutional policy created by the CMHC to extract teeth in an
effort to avoid more costly procedures like root canals.
O’Shea contends that the plaintiff’s claim constitutes a mere disagreement over
treatment, not deliberate indifference. He relies on the plaintiff’s allegations that O’Shea
extracted his molar because it had an “abscess, pulpitis, heavy tartar, heavy plaque,
mobility, and hypersensitivity” and the plaintiff’s assessment that these problems did not
warrant extraction. These allegations, taken alone, show only a difference of opinion on
the appropriate response to the plaintiff’s dental problems. However, the plaintiff has
alleged that the extraction was not only unnecessary, but performed in furtherance of the
CMHC’s unconstitutional policy of performing extractions over more effective and costly
dental procedures. The motion to dismiss the Eighth Amendment claim against O’Shea
is DENIED.
Claim against Benoit

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Lastly, Benoit seeks dismissal of the claim against him because, he argues, the
plaintiff has failed to state a supervisory liability claim against him. His argument is
twofold – the plaintiff failed to allege that Benoit was personally involved in any of the
dental care, or denial thereof, and the plaintiff cannot establish supervisory liability of
Benoit because his claims against the other subordinate defendants are subject to
dismissal. The latter argument fails insofar as the court has denied the motion to dismiss
against O’Shea and Sochacki.
As previously discussed, “[i]t is well settled . . . that personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages
under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation
marks omitted); see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973) (doctrine
of respondeat superior does not suffice for claim of monetary damages under § 1983). A
plaintiff who sues a supervisory official for monetary damages must allege that the
official was “personally involved” in the constitutional deprivation in one of five ways:
(1) the official directly participated in the deprivation; (2) the official learned about the
deprivation through a report or appeal and failed to remedy the wrong; (3) the official
created or perpetuated a policy or custom under which unconstitutional practices
occurred; (4) the official was grossly negligent in managing subordinates who caused the
unlawful condition or event; or (5) the official failed to take action in response to
information regarding the unconstitutional conduct. Wright, 21 F.3d at 501; Hernandez
v. Keane, 341 F.3d 137, 145 (2d Cir. 2003).
Here, the plaintiff alleges that Benoit, as Director of Dental Services for CMHC,
“created a policy or custom of pulling teeth only[,] in order to avoid [costly] root canals”

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and failed to train the other defendants to perform “adequate dental and preventative
dental care.” He further alleges that this unconstitutional policy led the other defendants
to extract his teeth without his consent as opposed to performing more appropriate and
less harmful dental procedures. These allegations, in conjunction with the Eighth
Amendment claims against O’Shea and Sochacki are sufficient to defeat the motion to
dismiss by Benoit. The motion to dismiss the claim against Benoit is therefore DENIED.
Fourteenth Amendment Claim
In its Initial Review Order, the court left extant the plaintiff’s Eighth and
Fourteenth Amendment claims. (Doc. No. 5) The defendants did not address the
Fourteenth Amendment claim in their motion to dismiss, and the plaintiff continues to
pursue these claims in his third amended complaint.
Upon further consideration, with the nature and scope of the plaintiff’s claims
more manifest, the court concludes that the plaintiff cannot prevail on his claim that the
defendants violated his right to due process under the Fourteenth Amendment.
The generalized notion of substantive due process under the Fourteenth
Amendment does not apply when another constitutional amendment provides an explicit
textual source of protection against the wrongful conduct. See Graham v. Connor, 490
U.S. 386, 395 (1989). Here, the plaintiff’s Fourteenth Amendment due process claim is
based on the same allegations as his Eighth Amendment claim. He has not alleged that
he was deprived of a separate liberty or property interest without due process of law. His
claim is entirely derivative and duplicative of his Eighth Amendment claim for deliberate
indifference to his medical needs. Therefore, the Fourteenth Amendment claim is
DISMISSED.

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SO ORDERED this 9th day of October, 2018 at Bridgeport, Connecticut.

_____/s/___________________________
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE

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