Troisi v. Williams et al

Filing 13

INITIAL REVIEW ORDER: The ADA claim, the state law claims, and the First Amendment claim for inability to telephone family and her attorney are DISMISSED pursuant to 28 U.S.C. §1915A(b). The Eighth Amendment claim is DISMISSED without prejudi ce. Troisi may pursue any FTCA claim in an appropriate action. (2) The Clerk is directed to close this case. (3) Troisi may move to reopen this case within 60 days and file an amended complaint to assert her Eighth Amendment claim if she can identify the persons who were deliberately indifferent to her serious medical needs. Signed by Judge Janet C. Hall on 10/31/2018.(Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JANICE TROISI,
Plaintiff,
v.
D.K. WILLIAMS, et al.,
Defendants.

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PRISONER CASE NO.
3:18-cv-1073 (JCH)

OCTOBER 31, 2018

INITIAL REVIEW ORDER
I.

INTRODUCTION
The plaintiff, Janice Troisi (“Troisi”), formerly incarcerated at the Federal

Correctional Institution in Danbury (“FCI Danbury”), Connecticut,1 has filed a Complaint
pro se under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). See generally Complaint (“Compl.”) (Doc. No. 1). Troisi sought leave
to proceed in forma pauperis. Motions for Leave to Proceed in Forma Pauperis (Doc.
Nos. 2, 7, 11). On September 12, 2018, the court granted Troisi’s application. Order
(Doc. No. 12).
The Complaint names two defendants: Warden D.K. Williams and Health Care
Services. Troisi contends that the defendants violated her Eighth Amendment rights
and committed medical malpractice through deliberate indifferent to her serious medical

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Troisi has provided documentation showing that she is serving the remainder of her sentence
on home confinement. See Motion for Leave to Proceed in Forma Pauperis (Doc. No. 11) at 7.

needs. Compl. at ¶ 1. She also includes references to the Americans with Disabilities
Act and denial of telephone calls. See id. at ¶¶ 1(c), 1(e), .
Under section 1915A of title 28 of the United States Code, the court must review
prisoner civil complaints and dismiss any portion of a 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. 28 U.S.C. § 1915A.
In reviewing a pro se complaint, the court must assume the truth of the allegations, and
interpret them liberally to “raise the strongest arguments [they] suggest[ ].” Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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.” Twombly, 550 U.S. at 570.
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). However,
notwithstanding this liberal interpretation, a pro se complaint will not survive dismissal
unless the factual allegations meet the plausibility standard. See, e.g., Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).
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II.

ALLEGATIONS
Troisi suffers from spinal stenosis, depression, anxiety, insomnia, hypertension,

bursitis, and hypercholesterolemia. Compl. at ¶1. She experiences pain. Id. On April
6, 2016, she entered the Prison Camp at FCI Danbury. Id. Troisi provided Danbury
Medical Services copies of her medical records. Id. at ¶1(a). She was not offered any
pain medication. Id. Troisi’s complaints of pain were ignored by Danbury Medical
Services, and she was advised to purchase pain medication from the commissary. Id.
At some point, Troisi was given Meloxicam, a mild pain medication. Id.
Troisi’s complaints about the ineffectiveness of her medication were ignored. Id.
She was told that pain was part of her condition and told that she could be sent to the
medical facility in Texas. Id. In response to frequent requests for examination by an
orthopedist, Troisi was told she had to wait her turn. Id. However, inmates admitted
after Troisi were seen before her. Id.
Troisi was seen by an orthopedist in July 2016. Id. He administered a cortisone
injection to her left hip and knee and ordered a neurological consult for spinal stenosis.
Id. Troisi saw a neurologist in October 2016, at which time he ordered a surgical
consult. Id. On January 13, 2017, the orthopedic surgeon’s physician’s assistant
ordered an MRI. Id. The test was not performed until October 2017. Id.
In March 2017, Troisi’s roommate told her that she could obtain prescription
strength Ibuprofen through the “pain registry.” Id. After consulting Health Care
Services, Troisi was registered and began receiving the medication. Id. Another inmate
told Troisi that she could receive injections similar to those she had received before she
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was incarcerated. Id. When she requested the injections, Troisi was told to wait for the
MRI results. Id.
On February 22, 2017, Troisi awoke with red, swollen, and watery eyes. Id. at
¶1(b). A Physician’s Assistant (“PA”) diagnosed her with blepharitis and, ignoring her
request for Prednisone eye drops, prescribed oral Prednisone and instructed Troisi to
follow-up with the Nurse Practitioner (“NP”) in a few days. Id. The NP refused a
request for eye drops and continued the Prednisone for five additional days. Id. On
March 8, 2017, the Prednisone was discontinued. Id. The condition appeared to have
resolved. Id.
Two days later, the condition returned. Id. Troisi’s left eye was completely
swollen shut and her right eye was partially swollen shut. Id. Her face was red, rashy,
and puffy. Id. The NP prescribed Triacinolone cream for Troisi’s face and ordered an
increased dose of Prednisone. Id. Two days later, Troisi’s face appeared burned, and
the rash had spread to her hands. Id. Troisi saw the NP and requested lab work and
dermatology, allergy, and immunology consults. The requests were refused. Id.
On March 16, 2017, the NP dismissed the burns on Troisi’s face. Id. She
prescribed eye drops as well as Zantac and Doxepin, an antidepressant. Id. The NP
told Troisi that the medications were prescribed for their “antihistaminic side effects.”
Troisi disagreed but her concerns were dismissed. Id.
On March 20, 2017, Nurse McGregor noticed the rash while dispensing
medication and asked Dr. Tindal, the medical director, to see Troisi. Id. Dr. Tindal
diagnosed severe first degree burns, ordered lab tests, consults, and an antihistamine.
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Id. He discontinued Triacinolone because it was contraindicated for use on the face
and ordered another cream. Id.
On April 3, 2017, the rash had spread over Troisi’s entire body. Id. The NP
refused care. Id. On April 5, 2017, Troisi saw a dermatologist and an allergist. Id. The
dermatologist discontinued Prednisone, performed a biopsy, and administered a
cortisone injection. Id. The allergist prescribed Zyzyl and Cereve cream. Id. After
waiting a week for the medications, on April 12, 2017, Troisi asked the NP about the
consults and, with some effort, obtained the medications. Id.
On April 18, 2017, Troisi complained to the NP that she was experiencing no
relief from her symptoms. Id. The NP told Troisi to give the medication time to work.
Id. On April 20, 2017, Troisi sent a request to Nurse McGregor. Id. Dr. Tindal
prescribed Mycophenylate, an immunosuppressant, which provided relief within 48
hours. Id. The rash is resolved, but Troisi has scars, occasional “rashy outbreaks,” and
a low white blood count. Id. The dermatologist has refused further testing to determine
the cause of the rash. Id.
In July 2017, Troisi experienced an exacerbation of spinal stenosis symptoms,
namely, increased pain and numbness in her lower legs. Id. at ¶1(c). She fell twice and
briefly lost consciousness twice because of the pain. Id. When she requested an MRI,
the NP told her, “why bother, we’re not going to give you the surgery and if you persist,
we’ll send you to Texas.” Id.
Troisi requested assistance in the form of a person to carry her bag from the
commissary and a tray in her room for meals. Id. The requests were denied. Id. Troisi
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made the defendants aware that these actions were in violation of prison directives. Id.
Troisi began spending more time in bed and supplemented her meals with items from
the commissary and donations from other inmates. Id. Troisi told Ms. McCoy, the head
of Health Services, the reason for her requested accommodations. Id. Ms. McCoy
stated, “we don’t do that[.]” Id.
In October 2017, Troisi again sought assistance from Health Services. Id. She
had not gone to the dining hall for two months and was being wheeled to the
commissary by another inmate. Id. She suffered pain and fell more frequently. Id. She
submitted requests for accommodations to staff ranging from the counselor to the
warden, but received no responses. Id. On October 5, 2017, Troisi saw Dr. Green. Id.
He did not examine her and told her that FCI Danbury did not have to comply with the
Americans with Disabilities Act. Id. About this same time, the NP began completing
paperwork for Troisi’s transfer to Texas for medical treatment. Id.
The MRI was performed in late October 2017. Id. In December 2017, the NP
told Troisi that the MRI showed a deterioration from a March 2016 MRI. Id. There were
two additional cysts on Troisi’s spine. Id. The NP told Troisi that, if she reported the
worsening condition, Troisi would get assistance but declined to do so because she
would be disciplined for doing so. Id. The NP also told Troisi that medical services at
FCI Danbury were terrible. Id.
On January 12, 2018, Troisi fell fracturing her medial malleolus, tibia, and fibula.
Id. at ¶1(d). She waited on the floor for over an hour for help to arrive. Id. Ms.
McGregor, who Troisi has specifically requested, applied a splint and arranged transport
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to Danbury Hospital. Id. Troisi was accompanied by a correctional officer (“CO”). Id.
Troisi underwent surgery the next day and remained in the hospital for five weeks. Id.
During that time Troisi had daily physician visits, around-the-clock nursing care, and
physical therapy three times per week. Id. After five weeks, Troisi still could not bear
weight on her leg. Id.
During the first week she was in the hospital, a CO remained with Troisi. Id. at
¶1(e). On January 19, 2018, the CO was removed and she was placed on
unsupervised furlough. Id. During that first week, Troisi was not permitted to call her
family or give the hospital her health care proxy. Id. Once Troisi was placed on
unsupervised furlough, the hospital permitted Troisi to call her family. Id. However, the
prison camp unit manager had the phone removed and refused to permit Troisi to call
her family or legal services. Id. A CO regularly visited Troisi at the hospital but refused
her requests for a phone call and said that he would relay the request to prison staff. Id.
On February 16, 2018, Officer Rivera asked Troisi to sign papers regarding a
transfer to Texas. Id. When Troisi asked about the treatment she would receive in
Texas and requested an attorney call, Officer Rivera left. Id. Captain Whitby told Troisi
that, if she refused, she would be transferred by force. Id. Troisi told him that she had
too much dignity to physically refuse the transfer. Id. Captain Whitby denied a legal
call. Id. Troisi was transferred to Texas on February 20, 2018. Id. The conditions in
Texas exacerbated Troisi’s medical conditions. Id.
III.

ANALYSIS
On the Civil Cover Sheet submitted with the Complaint, Troisi states that she

brings only an Eighth Amendment claim for deliberate indifference to medical needs.
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See Civil Cover Sheet (Doc. No. 1-1) at 1. In the introductory paragraph of the
Complaint, she lists the Eighth Amendment claims and adds state law claims for
reckless disregard and malpractice. See Compl. at ¶ 1. Within the body of the
Complaint, Troisi refers to the Americans with Disabilities Act and denial of phone calls
while she was hospitalized. See id. at ¶¶1(c), 1(e). The court addresses all of these
claims below.
A.

Americans with Disabilities Act

Troisi references the Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12101,
et seq. She alleges that the defendants did not accommodate her disability. See
Compl. at ¶ 3. Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. The ADA defines a “public
entity” to include state and local government agencies, but not federal
agencies. See 42 U.S.C. § 12131(1); see also Cellular Phone Taskforce v. FCC, 217
F.3d 72, 73 (2d Cir. 2000) (“Title II of the ADA is not applicable to the federal
government.”); Mackey v. United States Dep't of Justice, No. 16-CV-3865(JFB)(ARL),
2018 WL 4214336, at *6–7 (E.D.N.Y. Aug. 8, 2018) (dismissing ADA claims against
BOP for lack of subject matter jurisdiction (citing cases)), report and recommendation
adopted, No. 16-CV-3865(JFB)(ARL), 2018 WL 4211308 (E.D.N.Y. Sept. 4, 2018).
As the BOP is not subject to the ADA, Troisi’s ADA claims are dismissed
pursuant to section 1915A(b)(1) of title 28 of the United States Code.
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B. State Law Tort Claims
Troisi references state law tort claims for reckless disregard and malpractice.
“”[A] claimant’s exclusive remedy for nonconstitutional torts by a government employee
acting within the scope of his employment is a suit against the government under the
FTCA [Federal Tort Claims Act, 28 U.S.C. § 1346(b)].” Castro v. United States, 34 F.3d
106, 110 (2d Cir. 1994). The FTCA waives sovereign immunity for certain tort claims.
See 28 U.S.C. § 2679. However, a jurisdictional prerequisite to an FTCA suit is that the
plaintiff first pursue administrative remedies with the appropriate federal agency. See
28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 112-13 (1993). As it is not
clear that Troisi has pursued her administrative remedies regarding these claims, the
court declines to construe this action as brought pursuant to the FTCA. Accordingly, the
state law tort claims are dismissed, without prejudice to refiling in an appropriate FTCA
action.
C. Deliberate Indifference to Medical Needs
Troisi alleges that the defendants were deliberately indifferent to her serious
medical needs in violation of the Eighth Amendment. In Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court permitted
suits against federal officials in their individual capacities for violation of constitutional
rights. Thus, the defendants must be individual federal officers. The only individual
federal officer named as a defendant is Warden Williams. Health Care Services is not
an individual federal official and cannot be sued under Bivens. See Sereika v. Patel,
411 F. Supp. 2d 397, 400, 402 (S.D.N.Y. 2006) (dismissing Bivens claim against
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Metropolitan Correctional Center’s Health Services Unit because Bivens actions are not
cognizable against federal agencies); see also Correctional Services Corp. v. Malesko,
534 U.S. 61, 72 (2001) (“The prisoner may not bring a Bivens claim against the officer’s
employer, the United States, or the BOP.”).
In addition, “[b]ecause vicarious liability is inapplicable to Bivens . . . suits, a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009); see also Ganek v. Leibowitz, 874 F.3d 73, 92 (2d Cir. 2017) (to state Bivens
claim, plaintiff must allege that defendant violated plaintiff’s constitutional rights through
his own actions). Troisi references Warden Williams only in connection with her ADA
claim. As Warden Williams is not alleged to have been deliberately indifferent to Troisi’s
medical conditions or to have denied her medical care, the Eighth Amendment claim is
dismissed as to Warden Williams. Troisi may seek to pursue her Eighth Amendment
claim provided she can identify, in an Amended Complaint, the medical staff members
who were deliberately indifferent to her medical needs. To do so, she must also move
to add a defendant or defendants.
D. Access to Family and Attorney
Finally, Troisi contends that she was denied calls to her family and attorney while
hospitalized. See Compl. at ¶ 1(e). Inmates have a First Amendment right to
communicate with family and friends. This right may be exercised in several ways, by
letters, telephone calls, or personal visits. See Overton v. Bassetta, 539 U.S. 126, 135
(2003) (noting that inmates may communicate with others through letters, phone calls,
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and visits). Troisi does not allege that she was unable to communicate with her family
through other means. Thus, she does not state a cognizable constitutional violation
based on the inability to telephone them while hospitalized. See Barletta v. Quiros, No.
3:10-cv-939(AVC), 2013 WL 12073470, at *7 (D. Conn. Feb. 21, 2013) (plaintiff failed to
state First Amendment claim for preclusion of one means of communication where he
had other means of communication) (citations omitted).
The claim that Troisi was unable to telephone her attorney fails as well.
Prisoners have a constitutional right of access to the courts, which right has been
construed to include the ability to call their attorneys outside the context of criminal
proceedings. See McIntosh v. United States, No. 14-CV-7889 (KMK), 2016 WL
1274585, at *23 (S.D.N.Y. Mar. 31, 2016) (citing cases). To state a claim for denial of
access to the courts, however, Troisi must allege facts showing that she suffered an
actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996). She must allege facts
showing that the defendant either took or was responsible for an action that interfered
with her ability to pursue a legal claim. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003) (citations omitted). Troisi identifies no legal claim that she was unable to pursue
because she was unable to phone her attorney during the five weeks she was
hospitalized, nor pled any allegations that the Warden is the person who prevented her
from contacting her attorney. Thus, she fails to state a plausible access to courts claim.
The claims regarding the ability to telephone her family or attorney while
hospitalized are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

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ORDERS
(1)

The ADA claim, the state law claims, and the First Amendment claim for

inability to telephone family and her attorney are DISMISSED pursuant to 28 U.S.C. §
1915A(b). The Eighth Amendment claim is DISMISSED without prejudice. Troisi may
pursue any FTCA claim in an appropriate action.
(2)

The Clerk is directed to close this case.

(3)

Troisi may move to reopen this case within 60 days and file an amended

complaint to assert her Eighth Amendment claim if she can identify the persons who
were deliberately indifferent to her serious medical needs.
SO ORDERED.
Dated this 31st day of October 2018 at New Haven, Connecticut.

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

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