Jackson v. Valletta et al

Filing 9

ORDER OF DISMISSAL PURSUANT TO 28 U.S.C. § 1915A. Plaintiff has failed to allege a plausible claim for relief under the Eighth Amendment against any of the defendants. The Court further concludes that any amendment of the complaint would be futile. Accordingly, the Court DISMISSES the complaint (Doc. # 1 ) with prejudice pursuant to 28 U.S.C. § 1915A. The Clerk of Court shall close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 12/28/2017. (Zuckier, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

KEVIN JACKSON,
Plaintiff,
v.

No. 3:17-cv-01869 (JAM)

GERALD VALLETTA and UNIVERSITY
OF CONNECTICUT HEALTH CENTER,
Defendants.

ORDER OF DISMISSAL PURSUANT TO 28 U.S.C. § 1915A
Plaintiff Kevin Jackson is a prisoner in the custody of the Connecticut Department of
Correction. He has filed a complaint pro se and in forma pauperis under 42 U.S.C. § 1983
against Dr. Gerald Valletta and the University of Connecticut Health Center. 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. I conclude that plaintiff has not
alleged a plausible claim for relief and will dismiss the complaint with prejudice.
BACKGROUND
The following allegations from plaintiff’s complaint are accepted as true for purposes of
the Court’s initial review. On June 28, 2017, plaintiff had surgery on his finger to address a bone
spur. To alleviate post-surgery pain, the doctors at University of Connecticut hospital “referred”
that Dr. Valletta prescribe Percocet for plaintiff. Instead of prescribing Percocet, Dr. Valletta
prescribed Tylenol 3, which contains a combination of acetaminophen and codeine. On January
29, plaintiff complained that Tylenol 3 made him vomit. On June 30, plaintiff submitted a
written request slip describing the vomiting side effect and the excruciating pain he was
experiencing. Dr. Valletta met with plaintiff, who described the vomiting side effect and pain,

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and then Dr. Valletta doubled the dosage of Tylenol 3. Plaintiff alleges that the new regimen
caused his vomiting to increase, and he refused to take any more Tylenol 3 after July 4, 2017.
Plaintiff’s claim of deliberate indifference rests on the pain he suffered from June 30 to July 4.
Doc. #1 at 3–5 (¶¶ 8–20).
DISCUSSION
Pursuant to 28 U.S.C. § 1915A(a), I 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. 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 claims a violation of his right 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

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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
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).
Claims against Dr. Gerald Valletta
Plaintiff claims that Dr. Valletta was deliberately indifferent to his serious medical need
for adequate pain medication and pain management in the aftermath of his surgery. This
deliberate indifference was allegedly exhibited by Dr. Valletta’s prescription of Tylenol 3 rather
than Percocet and then his doubling of the Tylenol 3 dosage after plaintiff complained that he
was vomiting. The failure to provide adequate pain medication post-surgery and other postoperative care arguably may constitute deliberate indifference for Eight Amendment purposes.
See, e.g., Majors v. Baldwin, 456 F. App’x 616, 617 (8th Cir. 2012) (per curiam). But a doctor’s
“decision to prescribe one form of pain medication in place of another does not constitute
deliberate indifference to a prisoner’s serious medical needs.” Rush v. Fischer, 923 F. Supp. 2d
545, 555 (S.D.N.Y. 2013). Dr. Valletta’s decision to prescribe Tylenol 3 rather than Percocet
therefore cannot support a claim for deliberate indifference.

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Nor can Dr. Valletta’s decision to increase the dosage of Tylenol 3 support a claim for
deliberate indifference. As plaintiff himself alleges, he told Dr. Valletta not only that he was
vomiting but also that he was in “pain wors[e] th[a]n fire and the worst pain he ever had in his
lifetime.” Doc. #1 at 4. Given plaintiff’s own report of severe pain following his operation, it was
not tantamount to criminal recklessness for Dr. Valletta to decide to increase the Tylenol 3
dosage for plaintiff’s pain even if plaintiff also believed that the Tylenol 3 was upsetting his
stomach. Plaintiff has alleged at best that Dr. Valletta was negligent with respect to his choice of
medication and dosage, not that he acted with deliberate indifference to plaintiff’s medical needs.
See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“negligence, even if it
constitutes medical malpractice, does not, without more, engender a constitutional claim”);
Davila v. UConn Medical Center, 2008 WL 4630507, at *2 (D. Conn. 2008) (dismissing
prisoner’s Eighth Amendment claim based on failure of doctor to prescribe Percocet as requested
by prisoner rather than other forms of pain reliever to which plaintiff claimed he was allergic).
Claims against University of Connecticut Health Center
Plaintiff alleges that the University of Connecticut Health Center was deliberately
indifferent to his serious medical needs based on the same facts described above. Section 1983
provides a cause of action against a “person” who violates someone’s federal rights while acting
under color of state law. It is well-established that “a state agency is not a person within the
meaning of section 1983.” Walker v. State of Connecticut, 2006 WL 1981783, at *2 (D. Conn.
2006). The University of Connecticut Health Center is a state agency that is not subject to 1983
suits. See, e.g., Jolley v. Corr. Managed Health Care, 2009 WL 233667, at *3 (D. Conn. 2009),
aff’d, 375 F. App’x 67 (2d Cir. 2010). Accordingly, plaintiff’s claim against the University of
Connecticut Health Center is dismissed.

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CONCLUSION
Plaintiff has failed to allege a plausible claim for relief under the Eighth Amendment
against any of the defendants. The Court further concludes that any amendment of the complaint
would be futile. Accordingly, the Court DISMISSES the complaint with prejudice pursuant to 28
U.S.C. § 1915A. The Clerk of Court shall close this case.
It is so ordered.
Dated at New Haven this 28th day of December 2017.

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

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