Robbs v. McCrystal et al

Filing 20

INITIAL REVIEW ORDER Signed by Judge Kari A. Dooley on 10/07/2019.(Gould, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ROBERT F. ROBBS,
Plaintiff,
v.
KEVIN McCRYSTAL, et al.,
Defendants.

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No. 3:18-cv-2150 (KAD)

INITIAL REVIEW ORDER
Preliminary Statement
Plaintiff, Robert F. Robbs (“Robbs”), currently confined at Cheshire Correctional
Institution in Cheshire, Connecticut, filed this action pro se under 42 U.S.C. § 1983. In his
Amended Complaint, Robbs asserts claims for deliberate indifference to medical needs against
APRN Kevin McCrystal, Nurse Gina Burns, and Dr. Cary Freston.
Robbs commenced this action by Complaint filed on December 28, 2018. The case was
dismissed on February 11, 2009, when Robbs failed to correct deficiencies in his motion to
proceed in forma pauperis. Doc. No. 14. On September 20, 2019, Robbs filed an Amended
Complaint and motion to proceed in forma pauperis. Although he did not file a motion to
reopen, the Court construed the Amended Complaint as including a motion to reopen the case.
Robbs’ motion to proceed in forma pauperis was granted on October 2, 2019.
Standard of Review
Under section 1915A of title 28 of the United States Code, 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. Id. 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). see also Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se
litigants). 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.
Allegations
In 2016, Robbs was incarcerated at MacDougall-Walker Correctional Institution
commencing his sentence. He submitted written and oral requests for a shower pass but the
requests were denied or ignored. He was told to use a chair in the shower. Robbs had to
maneuver himself, his cane, and the chair over an 8” lip to enter the shower. On one day, when
exiting the shower, the cane slipped on the floor and Robbs fell, landing on his elbow and
striking his head. Doc. No. 15 at 4.
Robbs was taken to the medical unit for x-rays and evaluation. He was cleared to return
to population but was housed in the handicapped unit. Shortly thereafter, he noticed that his
elbow was becoming enlarged. Id. Robbs notified the medical unit. Medical staff drained fluid
from his elbow and sent the fluid to UConn for testing. Robbs continued to complain that his
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elbow was painful and warm to the touch and that two digits of his right hand were “sticking
shut.” Id. at 5. Medical staff prescribed ibuprofen and Elavil which did not relieve the
symptoms. Id.
While dealing with the medical staff regarding his elbow, Robbs noticed that small pieces
were breaking off the tip of his cane. Requests to the medical unit were unanswered. One day,
while returning to his cell, the tip of the cane broke causing Robbs to fall on his shoulder. Years
earlier he had undergone surgery on the same shoulder. Id. at 5.
Nurse Burns wheeled Robbs to the medical unit. He was not given an x-ray for two
weeks. Two weeks after that, Robbs was called for a second x-ray. He did not see APRN
McCrystal, his medical provider, until three weeks after the second x-ray. McCrystal told Robbs
that there was nothing wrong with his shoulder. The x-rays showed only an old healed injury.
APRN McCrystal prescribed Elavil, Neurontin, and ibuprofen. Id. at 5-6.
Nine months later, after many requests, Robbs underwent an MRI. He alleges that “[t]he
results were conflicting on what the D.O.C. interpreted them to be.” Id. at 6. Robbs was told
that he would receive therapy. He disagreed with the interpretation of the MRI results and the
order for physical therapy but Dr. Freston dismissed his concerns. Id. Sometime later, Robbs
suffered a mini-stroke and was hospitalized. He attributes the stroke to mental and emotional
distress. Id.
Discussion
Robbs alleges that he was beginning to serve his sentence when all incidents described in
the Amended Complaint occurred. Thus, the Court assumes that Robbs was a sentenced prisoner
and considers his claim for deliberate indifference to serious medical needs under the Eighth
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Amendment. See Darnell v. Piniero, 849 F.3d 17, 29 (2d Cir. 2017) (rights of pretrial detainees
are considered under the Fourteenth Amendment while rights of sentenced prisoners are
considered under the Eighth Amendment).
The Eighth Amendment forbids deliberate indifference to prisoners’ serious medical
needs. Spavone v. New York State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013). To
state a claim for deliberate indifference to a serious medical need, Robbs must show both that his
need was serious, and that the defendants acted with a sufficiently culpable state of mind. See
Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle v. Gamble, 492 U.S. 97, 104
(1976)). There are both objective and subjective components to the deliberate indifference
standard. Objectively, the alleged deprivation must involve a condition that is “sufficiently
serious.” Spavone, 719 F.3d at 138. The condition must produce death, degeneration or extreme
pain. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). The defendants also must
have been “subjectively reckless.” Spavone, 719 F.3d at 138. They must have been actually
aware of a substantial risk that Robbs would suffer serious harm as a result of their actions or
inactions. The defendants need only be aware of the risk of harm. They need not intend harm. d.
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 v. Goord,
467 F.3d 263, 279-80 (2d Cir. 2006). Nor does a disagreement over the treatment provided show
deliberate indifference. See Wright v. Rao, 622 F. App’x 46, 47 (2d Cir. 2015) (citing Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)).
Robbs alleges that he fell when exiting the shower because he was denied a shower pass
and told to use a chair for support. He also alleges that he did not receive an immediate response
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when he reported that pieces were breaking from the tip of his cane. Robbs does not allege that
any named defendant denied him the shower pass, was involved in treating his elbow following
the fall, or failed to immediately respond to his request about the cane. Personal involvement in
the alleged constitutional violation is a prerequisite for an award of damages under section 1983.
See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). As Robbs alleges no facts showing that
any named defendant was involved in these claims, they are dismissed pursuant to 28 U.S.C. §
1915A(b)(1).
Robbs does include allegations against the defendants regarding the treatment of his
shoulder injury. Robbs does not allege that he suffered pain and nor does he describe any
specific injury to his shoulder. Thus, he does not specifically allege facts demonstrating a serious
medical need. But Robbs does allege that APRN McCrystal prescribed Elavil, Neurontin, and
ibuprofen. These medications are generally used to alleviate patient pain. See
www.verywellhealth.com/amitriptyline-297048 (Elavil sometimes given as adjuvant pain
medication to people with chronic back pain) (last visited Oct. 3. 2019);
www.frugs.com/neurontin.html (Neurontin used to treat neuropathic pain in adults) (last visited
Oct. 3, 2019). A prisoner-plaintiff can establish a serious medical need if he suffers “‘chronic
pain the magnitude of which probably falls somewhere between “annoying” and “extreme.”’”
Neary v. Wu, 753 F. App’x 82, 84 (2d Cir. 2019) (quoting Brock v. Wright, 315 F.3d 158, 163
(2d Cir. 2003)). Thus, for purposes of initial review only, the Court concludes that Robbs
experienced pain in this range and, therefore, that he has alleged a serious medical need.
As to the subjective component, that the Defendants acted with deliberate indifference,
the only allegation against Nurse Burns is that she wheeled Robbs to the medical unit after he
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fell on his shoulder and did not immediately offer him an x-ray. First, Robbs alleges no facts
suggesting that, as a nurse, defendant Burns even had the authority to order an x-ray. The only
possible claim against Nurse Burns is that perhaps she should have checked with a supervisor or
doctor to determine whether an immediate x-ray was needed. At best, this would be a claim of
negligence which is not cognizable under section 1983. Any claim against Nurse Burns is
dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
The only allegation against APRN McCrystal is that he did not see Robbs until three
weeks after the second x-ray, at which time he reported that the x-rays were negative and
prescribed medication. “Although a delay in providing necessary medical care may in some
cases constitute deliberate indifference, [the Second Circuit] has reserved such a classification
for cases in which, for example, officials deliberately delayed care as a form of punishment, …
ignored a ‘life-threatening and fast-degenerating’ condition for three days, … or delayed surgery
for over two years….” Demata v. New York State Corr. Dep’t of Health Servs., 198 F.3d 233,
1999 WL 753142 (Table) (2d Cir. 1999); see also Chance, 143 F.3d 703 (a delay in treatment
does not rise to the level of a constitutional violation unless it involves conduct that evinces “a
conscious disregard of a substantial risk of serious harm.”) (quoting Hathaway, 99 F.3d at 553
(internal quotation marks omitted)).
Robbs had two x-rays before seeing APRN McCrystal. He alleges no facts suggesting
that the three-week delay in receiving the x-ray reports or seeing APRN McCrystal, caused him
any harm, subjected him to a serious risk of harm or was intended as punishment. Thus, he fails
to allege facts to support a plausible claim against APRN McCrystal. The claim against APRN
McCrystal is dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
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Robbs alleges that he underwent an MRI after nine months of submitting requests and
pleading for the test. He does not allege that any of the named defendants denied his requests or
had any involvement in the determination of whether he should receive an MRI. But even if he
had identified one of the defendants as having denied his requests, medical decisions, such as
whether to order x-rays or other diagnostic tests do not generally implicate the Eighth
Amendment’s prohibition against cruel and unusual punishment. Even an incorrect decision in
this regard implicates, at most, medical malpractice. See Estelle v. Gamble, 429 U.S. 97, 106
(1976).
The only allegation against Dr. Freston is that Robbs disagreed with Dr. Freston’s
interpretation of the MRI results and recommendation for physical therapy. “It is wellestablished that mere disagreement over the proper treatment does not create a constitutional
claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different
treatment does not give rise to an Eighth Amendment violation.” Chance, 143 F.3d at 703.
Robbs alleges no facts suggesting that the recommended treatment was inadequate. Thus, the
claim against Dr. Freston also is dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Finally, Robbs alleges that. “subsequently,” he suffered a mini-stroke and was
hospitalized. He attributes the mini-stroke to the mental and emotional distress he suffered,
presumably because of the actions or inactions of the defendants. He does not allege that he
informed any defendant that he was suffering from mental or emotional distress or that he sought
mental health treatment. Nor are there factual allegations to support this wholly conclusory
assessment.
Request for Damages
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Robbs seeks damages from the defendants in individual and official capacities. The
Eleventh Amendment bars claims for damages against state officials in their official capacities
unless the state has waived this immunity or Congress has abrogated it. Kentucky v. Graham,
473 U.S. 159, 169 (1995). Section 1983 does not abrogate state sovereign immunity, Quern v.
Jordan, 440 U.S. 332, 343 (1979), and Robbs has alleged no facts suggesting that Connecticut
has waived this immunity. Accordingly, all claims for damages against the defendants in their
official capacities are dismissed pursuant to 28 U.S.C. § 1915A(b)(2).
Orders
For all the foregoing reasons, the Amended Complaint is DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915A(b).
Robbs may file a Second Amended Complaint against these defendants in their individual
capacities only if he can allege facts to correct the deficiencies identified in this order. Any
Second Amended Complaint must be filed on or before October 31, 2019 using the Prisoner
Efiling Program. Failure to timely file a Second Amended Complaint will result in the dismissal
of this case with prejudice and without further notice from the court.
SO ORDERED at Bridgeport, Connecticut, this 7th day of October 2019.
/s/
Kari A. Dooley
United States District Judge

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