Blaine v. UConn Health Care et al
Filing
13
ORDER. For the reasons set forth in the attached, the Court orders as follows:(1) The 9 motion to amend the complaint is GRANTED. The [9-1] amended complaint is now the operative complaint, and the clerk is directed to docket it as a separa te entry. (2) The Eighth Amendment claim for deliberate indifference to serious medical needs may proceed against Nurse Burns in her individual capacity for damages and against Dr. Pillai in his individual capacity for damages and in his offi cial capacity for injunctive and declaratory relief. All other claims are dismissed.(3) The clerk shall verify the current work address for Dr. Pillai with the DOC Office of Legal Affairs, mail a waiver of service of process request packet co ntaining the amended complaint to him 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 (35th) day after mailing. If Dr. Pillai fails to r eturn the waiver request, the clerk shall make arrangements for in-person service by the U.S. Marshals Service on him, and he shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).(4) The C lerk shall prepare a summons form and send an official capacity service packet to the U.S. Marshal Service. The U.S. Marshal is directed to effect service of the amended complaint on Dr. Pillai in his official capacity at the Office of the Attorney G eneral, 55 Elm Street, Hartford, CT 06141, within twenty-one (21) days from the date of this order and to file a return of service within thirty (30) days of the date of this order.(5) Nurse Burns and Dr. Pillai shall file their response to the amended 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 Dr. Pillai. If they choose to file an answer, they shall admit or deny the allegations and respond to the cognizable claim recited above. They may also include any and all additional defenses permitted by the Federal Rules. (6) Discovery, pursuant to Federal Rule of Civil Procedure 26-37, shall b e completed within six months (180 days) from the date of this order. Discovery requests need not be filed with the court.(7) All motions for summary judgment shall be filed within seven months (210 days) from the date of this o rder.(8) Pursuant to District of Connecticut Local Civil Rule 7(a), a nonmoving party must respond to a dispositive motion within twenty-one (21) days of the date the motion was filed. If no response is filed, or the response is not ti mely, the dispositive motion can be granted absent objection.(9) If the plaintiff changes his address at any time during the litigation of this case, District of Connecticut Local Rule 83.1(c)2 provides that he MUST notify the court. Failure to do so can result in the dismissal of the case. The plaintiff must give notice of a new address even if he is incarcerated. The plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just put the new address on a lette r without indicating that it is a new address. If the plaintiff has more than one pending case, he should indicate all of the case numbers in the notification of change of address. The plaintiff should also notify defendants or defense counsel of his new address.(10) The 10 motion for appointment of counsel is DENIED without prejudice subject to refiling at a later stage of litigation.(11) The 12 motion directing the defendants to respond to the amended complaint is DENIED as moot.Signed by Judge Michael P. Shea on 7/17/2018. (Barclay, Michael)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAYEVON BLAINE,
Plaintiff,
v.
UCONN HEALTH CARE, et al.
Defendants.
:
:
:
:
:
:
:
No. 3:18-cv-359 (MPS)
July 17, 2018
________________________________________________________________________
RULING ON MOTION TO AMEND COMPLAINT (ECF No. 9),
MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 10), AND MOTION
TO DIRECT DEFENDANTS TO RESPOND (ECF No. 12)
On February 28, 2018, the plaintiff, Jayevon Blaine, an inmate currently confined
at MacDougall-Walker Correctional Institution in Suffield, Connecticut, brought a civil
action pro se under 42 U.S.C. § 1983 against the University of Connecticut Correctional
Managed Health Care Center and three Department of Correction (“DOC”) clinical
workers, Nurse Rose Walker, Nurse Gina Burns, and “Dr. Palie,” for acting with
deliberate indifference to his serious medical needs, in violation of his Eighth
Amendment protection against cruel and unusual punishment, and for medical
malpractice. Compl. (ECF No. 1). This Court permitted his Eighth Amendment claim
and medical malpractice claim to proceed against Burns but denied the claims against the
other defendants. Initial Review Order (ECF No. 7) at 7.
On May 3, 2018, the plaintiff filed a motion to amend his complaint clarifying
many of the factual deficiencies of his original complaint as explained in the Court’s
Initial Review Order. Mot. to Amend Compl. (ECF No. 9). He attached an amended
complaint with additional factual allegations against Burns and eight new defendants:
Nurse Hile, Nurse Michaud, Nurse Andelam, Nurse Lydia, Nurse Collins, Dr. Pillai,1
Health Services Administrator Lightner, and Dr. Farinella. Am. Compl. (ECF No. 9-1).
He is suing Burns, Hile, Michaud, Andelam, and Lydia in their individual capacities and
Collins, Pillai, Lightner, and Farinella in both their individual and official capacities. Id.
The plaintiff has also moved for the appointment of counsel to represent him in this case
and for an order directing the defendants to respond to his amended complaint. Mem. of
Law in Supp. of Pl.’s Mot. for Appointment of Counsel (“Mot. Appoint Counsel”) (ECF
No. 10); Mot. to Direct Defs. To Answer Am. Compl. (ECF No. 12).
Because the defendants have not yet responded to the initial complaint, the Court
will GRANT the plaintiff’s motion to amend (ECF No. 9) and review the claims stated in
the amended complaint (ECF No. 9-1). However, for reasons that follow, the motion to
appoint counsel (ECF No. 10) is DENIED without prejudice and the motion directing the
defendants to respond to the amended complaint (ECF No. 12) is DENIED as moot.
I.
Motion to Amend Complaint (ECF No. 9)
A plaintiff may amend his complaint once as a matter of right within twenty-one
days after service of the complaint or, if a responsive pleading is required, within twentyone days after service of the responsive pleading. See Fed. R. Civ. P. 15(a); O’dell v.
Bill, 13 Civ. 1275 (FJS/TWD), 2015 WL 710544, *44 (N.D.N.Y. Feb. 18, 2015). In all
other cases, the plaintiff may amend his complaint only with the Court’s leave. Fed. R.
Civ. P. 15(a)(2). Rule 15(a)(2) of the Federal Rules of Civil Procedure requires that the
Court’s permission to amend a complaint “shall be freely given when justice so requires.”
1
Based on the factual allegations in his amended complaint, the Court believes
that Dr. Pillai is the same defendant as “Dr. Palie,” against whom the plaintiff sought
relief in his initial complaint.
2
“In the absence of any apparent or declared reason – such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of the
allowance of the amendment, futility of the amendment, etc. – the leave should, as the
rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962). “This
relaxed standard applies with particular force to pro se litigants.” Pangburn v.
Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) (internal quotations omitted).
In this case, defendant Burns returned her waiver of service of process on April
11, 2018; see Order No. 8; and the plaintiff filed the instant motion to amend his
complaint on May 3, 2018. Although the motion was filed over twenty-one days passed
the waiver of service, Burns has not yet responded to the initial complaint. Therefore, in
the interests of justice, the Court will GRANT the motion to amend the complaint and
review the claims stated therein.
II.
Review of Amended Complaint (ECF No. 9-1)
Under 28 U.S.C. § 1915A, the Court must review prisoner civil complaints and
dismiss any portion of the complaint that is frivolous or malicious, that fails to state a
claim upon which relief may be granted, or that seeks monetary relief from a defendant
who is immune from such relief. Although detailed allegations are not required, the
complaint must include sufficient facts to afford the defendants fair notice of the claims
and the grounds upon which they are based and to demonstrate a right to relief. Bell
Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not
sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 550 U.S. at 570.
3
Nevertheless, it is well-established that “[p]ro 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).
A. Factual Allegations
In his amended complaint, the plaintiff alleges the following facts:
On December 28, 2017, Burns evaluated the plaintiff for a lump he had on his
genitals,2 which caused him constant pain. Am. Compl. ¶ 15. The plaintiff expressed to
her that his pain “was an eight on a scale of one to ten.” Id. Although Burns referred the
plaintiff to see Dr. Pillai, she refused to provide him any pain medication. Id.
The next day, the plaintiff saw Dr. Pillai. Am. Compl. ¶ 16. The plaintiff told
him that the lump hurt when he touched it or when he would lay on his side. Id. Pillai
said that the plaintiff was “going to have to hav[e] testing done,” but he too would not
give the plaintiff any medication for his pain. Id.
On January 15, 2018, the plaintiff received his written medical request back from
Nurse Michaud stating that he had been evaluated. Am. Compl. ¶ 17. However, the
plaintiff had not received any medication for his pain. Id.
One week later, the plaintiff received another response from Nurse Collins stating
that there were no open requests for the Utilization Review Committee (“URC”) for him,
even though Dr. Pillai had told him that further testing was necessary. Am. Compl. ¶ 18.
2
The plaintiff does not allege the nature of his medical condition in his amended
complaint. The Court draws this fact from his initial complaint.
4
On February 7, 2018, plaintiff received a “request” back from Nurse Hile stating
that he was scheduled “to see [a] provider to review [the] URC denial.” Am. Compl. ¶
19. However, the plaintiff has never seen any DOC officials regarding his URC request
or denial. Id.
On March 7, 2018, Nurse Michaud notified the plaintiff that he was scheduled for
sick call on March 12, 2018. Am. Compl. ¶ 20. The plaintiff thereafter sent a request to
the medical unit complaining about his delayed medical appointment and that his
condition was causing him substantial pain. Id. at ¶ 21. Administrator Lightner
responded by stating that she was working on scheduling a medical appointment for the
plaintiff. Id. at ¶ 22.
At some point, the plaintiff wrote a letter to Dr. Farinella regarding his condition
and delayed treatment, but “she has done nothing to help him get” an appointment. Am.
Compl. ¶¶ 11, 23.
B. Analysis
Based on these allegations, the Court reaffirms its initial conclusion that the
plaintiff has stated a plausible Eighth Amendment claim for deliberate indifference to
medical needs against Nurse Burns in her individual capacity for damages for refusing to
provide him medication for his painful condition. The Court also concludes that the
plaintiff has stated a plausible Eighth Amendment claim against Dr. Pillai. Unlike in the
initial complaint, the plaintiff alleges in his amended complaint that Pillai also refused to
provide medication to help alleviate his pain. Thus, the Court will permit the Eighth
Amendment to proceed against Pillai in his individual capacity for damages and in his
official capacity for injunctive and declaratory relief.
5
The plaintiff has not stated plausible Eighth Amendment claims against any of the
other newly named defendants. His only allegation against Michaud, Collins, and Hile is
that they notified him of the status of his medical appointments. Although perhaps
misinformed or mistaken in their assessments, the amended complaint does not suggest
that they said or did anything that amounts to deliberate indifference to the plaintiff’s
medical needs. Nurses Andelam and Lydia are not mentioned in the plaintiff’s statement
of facts, and the only allegation against Lightner is that she responded to the plaintiff’s
medical request, stating that she was working on scheduling an appointment for him.
Finally, the only allegation against Farinella is that she failed to respond to the plaintiff’s
letter regarding his medical condition and delayed treatment, which is insufficient to
show a constitutional deprivation. See Young v. Choinski, 15 F. Supp.3d 172, 190 (D.
Conn. 2014) (failure of prison official to respond to inmate’s request or process appeal
insufficient to show personal involvement in Eighth Amendment claim); Thorne v.
Cuevas, No. 3:09-cv-1716 (SRU), 2012 WL 1050056, *6 (D. Conn. Mar. 28, 2012)
(same). Therefore, the claims against these defendants are dismissed.
The plaintiff is also raising a claim of negligence against the defendants.
However, such claims against state officers are barred by Connecticut General Statutes §
4-165(a).3 Moreover, although the Court previously permitted the plaintiff’s medical
malpractice claim against Burns, that claim must also be dismissed for failure to obtain
state authorization. Connecticut General Statutes § 4-160(b) provides that, before a
plaintiff raises a malpractice claim “against the state, a state hospital or against a
Section 4-165(a) provides, in relevant part: “No state actor or employee shall be
personally liable for damage or injury, not wanton, reckless or malicious, caused in the
discharge of his or her duties or within the scope of his or her employment.”
3
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physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider
employed by the state,” he must submit “a certificate of good faith to the Office of the
Claims Commissioner in accordance with [Connecticut General Statutes §] 52-190a,” and
the Claims Commissioner must authorize the suit against the state on such a claim. See
also St. Pierre v. Tawanna, No. 3:14-cv-1866 (VAB), 2017 WL 1053838, *9 (D. Conn.
Mar. 20, 2017). The plaintiff has not indicated whether he has obtained authorization
from the state claims commissioner to sue the state for medical malpractice. Therefore,
the plaintiff’s negligence and medical malpractice claims are hereby dismissed.
III.
Motion for Appointment of Counsel (ECF No. 10)
In support of his motion for appointment of counsel, the plaintiff argues that (1)
the Eighth Amendment claims are factually and legally complex, (2) he has little to no
ability to investigate the case, (3) there is a likelihood of conflicting testimony, (4) he has
limited ability to present his claim, and (5) his claims have sufficient merit. Mot.
Appoint Counsel at 3-4.4 He also submitted an affidavit certifying that he has written
requests to several law firms and the Inmate Legal Aid Program but has been unable to
obtain representation. Aff. in Supp. of Pl.’s Mot. for Appointment of Counsel (ECF No.
11). Because this case consists solely of an amended complaint, however, his motion for
appointment of counsel is dismissed without prejudice.
The Court “may request an attorney to represent any person unable to afford
counsel.” 42 U.S.C. § 1915 (e)(1). “District courts exercise substantial discretion in
The plaintiff entitled his motion “Memorandum of Law in Support of Plaintiff’s
Motion for Counsel.” The plaintiff is hereby advised that, although he may accompany
his motions with a memorandum of law, he must file a “motion” for any filing seeking
court action.
4
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deciding whether to appoint counsel . . . .” Ferrelli v. River Manor Health Care Center,
323 F.3d 196, 204 (2d Cir. 2003). The Second Circuit has cautioned against the “routine
appointment of counsel.” Cooper v. A. Sargenti Co., 877 F.2d 170, 173-74 (2d Cir.
1989). Before appointment is even considered, the indigent movant must establish that
he is unable to obtain counsel. Id. at 173; Hodge v. Police Officers, 802 F.2d 58, 61 (2d
Cir. 1986). If the movant satisfies that threshold requirement, the Court must then
consider the merits of his claim and determine whether his position “seems likely to be of
substance.” Hodge, 802 F.2d at 61. If so, the Court should then consider other factors
bearing on the need for appointment of counsel, including the movant’s ability to
investigate the factual issues of the case, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented to the fact finder, the
movant’s apparent ability to present the case, and the complexity of the legal issues
involved. Id. at 61-62.
While the plaintiff has affirmed that he has made efforts to obtain representation
on his own, the record is simply insufficient to warrant the appointment of pro bono
counsel. The record consists solely of an amended complaint, which has not even been
served on all of the defendants. Therefore, the Court will deny the plaintiff’s motion for
appointment of counsel without prejudice subject to refiling at a later stage of litigation.
IV.
Motion Directing Response to Amended Complaint (ECF No. 12)
The plaintiff’s motion directing the defendants to respond to his amended
complaint is now moot in light of the Court’s review of his amended complaint and the
following orders.
8
ORDERS
(1)
The motion to amend the complaint (ECF No. 9) is GRANTED. The
amended complaint (ECF No. 9-1) is now the operative complaint, and the clerk is
directed to docket it as a separate entry.
(2)
The Eighth Amendment claim for deliberate indifference to serious medical
needs may proceed against Nurse Burns in her individual capacity for damages and
against Dr. Pillai in his individual capacity for damages and in his official capacity for
injunctive and declaratory relief. All other claims are dismissed.
(3)
The clerk shall verify the current work address for Dr. Pillai with the
DOC Office of Legal Affairs, mail a waiver of service of process request packet
containing the amended complaint to him 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 (35th) day after mailing. If Dr. Pillai fails to return the waiver request, the
clerk shall make arrangements for in-person service by the U.S. Marshals Service on him,
and he shall be required to pay the costs of such service in accordance with Federal Rule
of Civil Procedure 4(d).
(4)
The Clerk shall prepare a summons form and send an official capacity service
packet to the U.S. Marshal Service. The U.S. Marshal is directed to effect service of the
amended complaint on Dr. Pillai in his official capacity at the Office of the Attorney
General, 55 Elm Street, Hartford, CT 06141, within twenty-one (21) days from the date
of this order and to file a return of service within thirty (30) days of the date of this
order.
(5)
Nurse Burns and Dr. Pillai shall file their response to the amended complaint,
9
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 Dr. Pillai. If they choose
to file an answer, they shall admit or deny the allegations and respond to the cognizable
claim recited above. They may also include any and all additional defenses permitted by
the Federal Rules.
(6)
Discovery, pursuant to Federal Rule of Civil Procedure 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.
(7)
All motions for summary judgment shall be filed within seven months (210
days) from the date of this order.
(8)
Pursuant to District of Connecticut Local Civil Rule 7(a), a nonmoving party
must respond to a dispositive motion within twenty-one (21) days of the date the motion
was filed. If no response is filed, or the response is not timely, the dispositive motion can
be granted absent objection.
(9)
If the plaintiff changes his address at any time during the litigation of this
case, District of Connecticut Local Rule 83.1(c)2 provides that he MUST notify the court.
Failure to do so can result in the dismissal of the case. The plaintiff must give notice of a
new address even if he is incarcerated. The plaintiff should write “PLEASE NOTE MY
NEW ADDRESS” on the notice. It is not enough to just put the new address on a letter
without indicating that it is a new address. If the plaintiff has more than one pending
case, he should indicate all of the case numbers in the notification of change of address.
The plaintiff should also notify defendants or defense counsel of his new address.
(10)
The motion for appointment of counsel (ECF No. 10) is DENIED without
10
prejudice subject to refiling at a later stage of litigation.
(11)
The motion directing the defendants to respond to the amended complaint
(ECF No. 12) is DENIED as moot.
It is so ordered.
Dated at Hartford, Connecticut this 17th day of July 2018.
/s/
Michael P. Shea
United States District Judge
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