Franko v. Semple et al

Filing 7

INITIAL REVIEW ORDER. For the reasons stated in the attached ruling, the Court enters the following orders: (1) Plaintiffs Eighth Amendment claim for deliberate indifference to serious medical needs may proceed against Warden Ferrell, Warden Brig hthaupt, Lisa Simo-Kinzer, Dr. Ruiz, John Doe 1, and John Doe 2 in their individual capacities for monetary damages. Plaintiffs claims against Commissioner Semple and Dr. Naqvi are dismissed.(2) The Clerk of Court shall verify the current work a ddresses for defendants Ferrell, Brighthaupt, Simo-Kinzer, and Ruiz with the DOC Office of Legal Affairs, mail a waiver of service of process request packet 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 thirty-fifth (35) day after mailing. If any defendant fails to return the waiver request, the clerk shall make arrangements for in-person service by t he U.S. Marshals Service on him or her, and the defendant shall be required to pay the costs of such service in accordance with Fed. R. Civ. P. 4(d). (3) Because plaintiff has not identified John Doe 1 or John Doe 2 by name, the Clerk is not able to serve a copy of the complaint on those defendants in their individual capacities. Plaintiff must, within ninety (90) days of the date of this order, conduct discovery and file a notice indicating the first and last name of those two defen dants. If plaintiff files the notice, the court will direct the clerk to effect service of the complaint on those defendants in their individual capacities. If plaintiff fails to identify those defendants within the time specified, his claim agains t them will be dismissed pursuant to Fed. R. Civ. P. 4(m).(4) Defendants shall file their response to the 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 them. If they choose to file an answer, they shall admit or deny the allegations and respond to the cognizable claims recited above. They may also include any and all additional defenses permitted by the Federal Rules.< br>(5) Discovery, pursuant to Fed. R. Civ. P. 26-37, shall be completed within six months (180 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 seven months (210 days) from the date of this order.It is so ordered. Signed by Judge Jeffrey A. Meyer on 11/27/2017. (Zuckier, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LAWRENCE FRANKO,
Plaintiff,
v.

No. 3:17-cv-01558 (JAM)

SCOTT SEMPLE, et al.,
Defendants.

INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. § 1915A
Plaintiff Lawrence Franko is a prisoner in the custody of the Connecticut Department of
Correction. He has filed a complaint pro se and in forma pauperis against the Connecticut
Department of Correction (“DOC”) Commissioner Scott Semple, Warden Timothy Farrell,
Warden Jon Brighthaupt, Dr. Ruiz, Dr. Syed Naqvi, Lisa Simo-Kinzer, and two unidentified
judicial marshals. Plaintiff alleges that defendants acted with deliberate indifference to his
serious medical needs in violation of his Eighth Amendment right against cruel and unusual
punishment. He is suing Commissioner Semple in his official and individual capacities and all
other defendants in their individual capacities only. Plaintiff is seeking monetary damages and
declaratory and injunctive relief. Based on my initial review pursuant to 28 U.S.C. § 1915A, I
will allow plaintiff’s Eighth Amendment claim against some of the defendants to proceed, but
will dismiss the claim as to other defendants for failure to allege plausible grounds for relief.
BACKGROUND
The following allegations from plaintiff’s complaint are accepted as true for purposes of
the Court’s initial review. Plaintiff has long suffered from claustrophobia and claustrophobiarelated issues. The claustrophobia causes plaintiff to suffer from panic attacks and other
symptoms when he is confined in overly crowded areas, including transport vehicles used by the
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Connecticut judicial marshal services. Prison officials have had notice of plaintiff’s condition
since at least 2009, when plaintiff’s claustrophobia was raised during his state court proceedings
on March 25, 2009, and again on July 9, 2010. The state court noted the medical condition on
plaintiff’s March 25 mittimus, which was viewed by prison officials. Prison officials have also
been aware of the injuries plaintiff sustained in the past as the result of his claustrophobia. Doc.
#1 at 4-5 (¶ 6–13).
On October 1, 2014, plaintiff was transported in a judicial marshal transport van from
Cheshire Correctional Institution to MacDougall-Walker Correctional Institution, and then from
MacDougall-Walker to Connecticut Superior Court in Rockville in order to attend his state
habeas corpus proceeding. On the first leg of the trip, plaintiff complained to judicial marshals
John Doe 1 and John Doe 2 that he felt extremely uncomfortable and was experiencing dizziness
and chest pain. Both marshals ignored his complaints.
Despite plaintiff’s complaints, the marshals forced plaintiff into a second transport van at
MacDougall-Walker for the second leg of the trip. At some point during this trip, plaintiff
experienced blurred vision and passed out, causing him to fall face first on the ground. When the
van arrived at the Rockville courthouse, John Doe 1 and John Doe 2 refused to assist plaintiff or
to allow him to exit the van even as other prisoners were allowed to exit. Both marshals
prevented plaintiff from attending his court proceeding and informed courthouse staff that his
behavior was unstable. The marshals transported plaintiff in the van back to MacDougallWalker, where he pleaded for medical attention. Plaintiff was examined by a nurse, who found
plaintiff to have swollen lips, knee wounds, and extremely elevated blood pressure and heart
rate. He later spoke with a doctor who determined that he should no longer be transported in
judicial marshal or DOC vehicles for court trips. Doc. #1 at 5-6 (¶ 15–29).

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Shortly thereafter, plaintiff was returned to Cheshire where he was again evaluated by
medical staff. Dr. Ruiz and mental health social worker Lisa Simo-Kinzer were notified about
plaintiff’s claustrophobia but failed to act or abate the situation. Doc. #1 at 7 (¶ 30–34).
Prior to the incident on October 1, DOC staff had notified Warden Ferrell and SimoKinzer via email about plaintiff’s condition and his inability to ride in marshal vans. Plaintiff’s
attorney, Keith Anthony, also emailed Warden Ferrell and Warden Brighthaupt on several
occasions requesting that arrangements be made for alternative transportation because of
plaintiff’s claustrophobia. Warden Ferrell responded to Anthony that his medical staff had
researched and reviewed plaintiff’s condition but that there was no record to support individual
transportation arrangements at that time. Doc. # 1 at 7 (¶ 35-38 ), 13-17.
Following the October 1 incident, plaintiff’s lips became infected and the doctor
prescribed medication to treat the infection. Plaintiff appears to allege that he did not receive this
medicine. Additionally, plaintiff had an EKG scan performed following the incident on October
1, 2014. Plaintiff was not truthfully informed of the EKG results until March 24, 2016, when Dr.
Wright informed him that he had a “mini” heart attack on October 1. Plaintiff alleges that Dr.
Ruiz and Dr. Naqvi never advised him that he had had a heart attack. Plaintiff alleges that the
harm he suffered resulted from Commissioner Semple’s failure to establish adequate protocols to
address the mental health conditions of inmates. Doc. # 1 at 8 (¶ 42-46).
DISCUSSION
Pursuant to 28 U.S.C. § 1915A(a), 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

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such relief. The Court must accept as true all factual matters alleged in a complaint, although a
complaint may not survive unless its factual recitations state a claim to relief that is plausible on
its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770
F.3d 170, 177 (2d Cir. 2014) (same). Nevertheless, it is well-established that “pro se complaints
‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101–02
(2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
Plaintiff principally claims a violation of his rights to be free from cruel and unusual
punishment under the Eighth Amendment. The Supreme Court has held that a prison official’s
“deliberate indifference” to a prisoner’s serious medical needs amounts to a violation of the
Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
The Second Circuit in turn has made clear that a prisoner who claims deliberate
indifference to a serious medical need must satisfy two requirements. First, there is an objective
requirement—that the prisoner’s medical need was sufficiently serious. See Spavone v. New York
State Dep’t of Corr. Serv’s., 719 F.3d 127, 138 (2d Cir. 2013). The prisoner must show that he
suffered from an urgent medical condition involving a risk of death, degeneration, or extreme
pain. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
Second, there is a subjective requirement: that the defendant have acted recklessly—that
is, with an actual awareness of a substantial risk that serious harm to the prisoner would result
from the defendant’s action or non-action. See Spavone, 719 F.3d at 138. It is not enough to
allege simple negligence or negligent medical malpractice. See Hilton v. Wright, 673 F.3d 120,
122-23 (2d Cir. 2012); Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Instead, a

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prisoner must show that the defendant acted with the equivalent of a criminally reckless state of
mind when denying treatment for the prisoner’s medical needs. See Collazo v. Pagano, 656 F.3d
131, 135 (2d Cir. 2011) (per curiam).
Plaintiff’s central claim is that he had a serious medical need for alternative means of
transportation when being transported to and from prison due to his claustrophobia. It is
debatable whether plaintiff’s claustrophobia satisfies the objective standard of an urgent medical
condition that entails a risk of death, degeneration, or extreme pain. Compare Goetsch v. Berge,
3 F. App’x 551, 553 (7th Cir. 2001) (“We doubt whether [plaintiff’s] claim that he was placed in
a shuttered cell despite his claustrophobia meets the standard of alleging an excessive risk to his
health or safety.”), with Allen v. Tucker, 2015 WL 5693557, at *4 (D. Colo. 2015) (“The Court
agrees that [plaintiff’s] allegations that he suffers from claustrophobia constitutes a ‘serious
medical need.’”). However, in light of plaintiff’s allegation that his experience in transport on
October 1, 2014, caused him to suffer a minor heart attack, I assume for the purposes of this
ruling that plaintiff’s claims regarding his claustrophobia satisfy the objective standard. I will
now consider the subjective component of plaintiff’s deliberate indifference claim as to each
defendant.
Commissioner Semple
Plaintiff’s only claim against Commissioner Semple is a generalized allegation that
plaintiff’s harm resulted from DOC’s “lack of procedures and protocols” and that Commissioner
Semple’s “lack of protocol and conditions for inmates with mental conditions” caused plaintiff to
suffer harm. Doc. #1 at 8 (¶ 44-45).
To the extent that plaintiff seeks money damages against defendant Semple in his official
capacity his claim is barred by state sovereign immunity under the Eleventh Amendment to the

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U.S. Constitution. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–03 (1984).
To the extent plaintiff seeks money damages from Semple in his individual capacity, his claim is
dismissed for failure to sufficiently allege Semple’s personal involvement in the alleged
constitutional violation. “It is well settled that, in 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.” Grullon v. City of New Haven, 720 F.3d
133, 138 (2d Cir. 2013); see also Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (noting
that “liability for supervisory government officials cannot be premised on a theory of respondeat
superior because § 1983 requires individual, personalized liability on the part of each
government defendant”). Here, plaintiff does not allege any facts indicating Semple was
personally involved in the deprivation. Instead, plaintiff alleges that the deprivation would not
have occurred had Semple instituted protocols protecting inmates with mental health issues.
Because plaintiff has not alleged personal involvement in the deprivation, his claim against
Semple in his individual capacity for monetary damages is also dismissed.
Plaintiff need not allege a supervisor’s personal involvement in the constitutional
violation in his claim for injunctive relief. However, plaintiff’s barebones, generalized
allegations about the lack of protocols do not state a plausible claim for deliberate indifference to
serious medical needs under the Eighth Amendment. Therefore, all claims against Commissioner
Semple are dismissed.
John Does 1 and 2
Plaintiff alleges that John Does 1 and 2, the alleged drivers of the marshal van, acted with
deliberate indifference to his serious medical needs by refusing to provide alternate transport
despite knowledge of his claustrophobia, refusing to provide medical care after plaintiff

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exhibited symptoms during the various trips on October 1, refusing to render medical assistance
after he fainted, and refusing to allow plaintiff to exit the van at the state courthouse. As a result
of the deliberate indifference of John Doe 1 and John Doe 2, plaintiff alleges he suffered a heart
attack. Additionally, plaintiff alleges that he repeatedly informed John Doe 1 and John Doe 2 of
his condition and the potential serious injuries that could result therefrom. Plaintiff has
adequately alleged that John Doe 1 and John Doe 2 deprived him of medical care with actual
awareness of a substantial risk that serious harm would result from their actions.
Timothy Farrell and Jon Brighthaupt
Plaintiff alleges that both Warden Farrell and Warden Brighthaupt were notified. Plaintiff
has attached an exhibit that shows that plaintiff’s attorney informed Warden Brighthaupt and
Warden Farrell. Doc. # 1 at 13-18. Accordingly, both Warden Farrell and Warden Brighthaupt
were on notice of plaintiff’s condition that required medical accommodation, which they
allegedly failed to provide. Therefore, I will allow plaintiff’s claims against Wardens Farrell and
Brighthaupt to proceed.
Dr. Ruiz, Dr. Naqvi, and Lisa Simo-Kinzer
Plaintiff alleges that Dr. Ruiz and Lisa Simo-Kinzer had knowledge of his claustrophobia
condition, but failed to do anything in response to address the condition. These allegations—
which I am obliged at this initial point of inquiry to accept as true—are legally sufficient to meet
the subjective component for an Eighth Amendment claim, although it may be difficult for
plaintiff to ultimately carry his burden to establish that that the alleged inaction was accompanied
by a criminally reckless state of mind. Accordingly, the Eighth Amendment claim against Dr.
Ruiz and Lisa Simo-Kinzer shall proceed for now.

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Plaintiff also alleges that Dr. Ruiz and Dr. Naqvi failed to disclose to plaintiff that
plaintiff had suffered a minor heart attack. However, plaintiff does not allege that Dr. Ruiz or Dr.
Naqvi took the EKG test, or that they actually knew but failed to disclose to plaintiff at the time
that he suffered a minor heart attack. Additionally, plaintiff does not allege that knowing about
the minor heart attack constituted a serious medical need and that failing to inform plaintiff of
the heart attack could cause a risk of serious harm. Nor does plaintiff allege that he suffered any
harm as the result of the failure of Dr. Ruiz or Dr. Naqvi to inform plaintiff of the minor heart
attack. Therefore, the failure to disclose the heart attack cannot constitute deliberate indifference,
and his claim against Dr. Naqvi will be dismissed.
CONCLUSION
(1) Plaintiff’s Eighth Amendment claim for deliberate indifference to serious medical
needs may proceed against Warden Ferrell, Warden Brighthaupt, Lisa Simo-Kinzer, Dr. Ruiz,
John Doe 1, and John Doe 2 in their individual capacities for monetary damages. Plaintiff’s
claims against Commissioner Semple and Dr. Naqvi are dismissed.
(2) The Clerk of Court shall verify the current work addresses for defendants Ferrell,
Brighthaupt, Simo-Kinzer, and Ruiz with the DOC Office of Legal Affairs, mail a waiver of
service of process request packet 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 thirty-fifth (35) day after mailing. If any defendant fails to return the
waiver request, the clerk shall make arrangements for in-person service by the U.S. Marshals
Service on him or her, and the defendant shall be required to pay the costs of such service in
accordance with Fed. R. Civ. P. 4(d).
(3) Because plaintiff has not identified John Doe 1 or John Doe 2 by name, the Clerk

8

is not able to serve a copy of the complaint on those defendants in their individual capacities.
Plaintiff must, within ninety (90) days of the date of this order, conduct discovery and file a
notice indicating the first and last name of those two defendants. If plaintiff files the notice, the
court will direct the clerk to effect service of the complaint on those defendants in their
individual capacities. If plaintiff fails to identify those defendants within the time specified, his
claim against them will be dismissed pursuant to Fed. R. Civ. P. 4(m).
(4) Defendants shall file their response to the 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 them. If they choose to file an answer, they shall admit
or deny the allegations and respond to the cognizable claims recited above. They may also
include any and all additional defenses permitted by the Federal Rules.
(5) Discovery, pursuant to Fed. R. Civ. P. 26-37, shall be completed within six
months (180 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 seven months (210
days) from the date of this order.
It is so ordered.
Dated at New Haven, Connecticut this 27th day of November 2017.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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