Harris v. Brennan et al

Filing 9

INITIAL REVIEW ORDER: See attached. The Court enters the following orders:(1) The claim seeking monetary damages from the defendants in their official capacities for violations of the plaintiff's Eighth Amendment rights is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(2). The ADA claim and the state law claim of intentional infliction of emotional distress are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).The Eighth Amendment deliberate indifference to medical needs claims wi ll proceed against all defendants in their individual capacities and in their official capacities to the extent that the plaintiff seeks injunctive relief.(2) Within 21 days of this Order, the Clerk shall prepare a summons form and send an offici al capacity service packet to the U.S. Marshals Service. The U.S. Marshals Service shall serve the summons, a copy of the complaint, and a copy of this order on Nurse/Health Services Administrative Remedy Coordinator Janine Brennan, Nurse Kayla Lozad a, Nurse Peter Burns, Nursing Supervisor Kara Phillips, Nursing Supervisor Amy Benoit, Dr. Ingrid Feder, and Director of Medical Services Colleen Gallagher in their official capacities by delivering the necessary documents in person to the Office of the Attorney General, 165 Capitol Avenue, Hartford, CT 06160.(3) Within 21 days of this Order, the Clerk shall verify the current work addresses of: Nurse/Health Services Administrative Remedy Coordinator Janine Brennan, Nurse Kayla Lozada, Nurse Peter Burns, Nursing Supervisor Kara Phillips, Nursing Supervisor Amy Benoit, Dr. Ingrid Feder, and Director of Medical Services Colleen Gallagher and mail a copy of the complaint, this order, and a waiver of service of process request packet to eac h defendant in his or her individual capacity at his or her confirmed address. On the 35th day after mailing, the Clerk shall report to the Court on the status of each request. If any defendant fails to return the waiver request, the Clerk shall make arrangements for in-person service by the U.S. Marshals Service and that defendant shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).(4) Defendants Brennan, Lozada, Burns, Phillips, Benoit , Feder, and Gallagher shall file their response to the complaint, either an answer or motion to dismiss, within 60 days from the date the notice of lawsuit and waiver of service of summons forms are mailed to them. If the defendants choose to file a n answer, they shall admit or deny the allegations and respond to the cognizable claims recited above. They may also include any additional defenses permitted by the Federal Rules.(5) All discovery must be completed (not propounded) by 4/4/2022. (6) All motions for summary judgment must be filed by 5/4/2022.(7) If the plaintiff changes his address at any time during the litigation of this case, Local Court Rule 83.1(c)2 provides that he MUST notify the Court. Failure to do so can re sult in the dismissal of the case. The plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. If the plaintiff has more than one pending case, he should indicate all case numbers in the notification of change of address. The plaintiff shoul d also inform the attorney for the defendants of his new address.(8) The plaintiff shall utilize the Prisoner Efiling Program when filing documents with the Court. The plaintiff is advised that the Program may be used only to file documents with the Court. Local Court Rule 5(f) provides that discovery requests are not to be filed with the Court. Therefore, discovery requests must be served on defendants counsel by regular mail.(9) The Clerk shall send a courtesy copy of the complaint and this order to the Connecticut Attorney General and to the DOC Legal Affairs Unit. Signed by Judge Michael P. Shea on 10/6/21. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LEEROY J. HARRIS,
Plaintiff,
v.
JANINE BRENNAN, ET AL.,
Defendants.

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Case No. 3:21cv906 (MPS)

INITIAL REVIEW ORDER
The plaintiff, Leeroy J. Harris, is currently confined at Corrigan-Radgowski Correctional
Institution in Uncasville, Connecticut (“Corrigan-Radgowski”). He files this civil rights action
pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12131, 12132 against Nurse/Health Services Administrative Remedy Coordinator
(“Nurse/HSAR Coordinator”) Janine Brennan, Nurses Kayla Lozada and Peter Burns, Nursing
Supervisors Kara Phillips and Amy Benoit, Dr. Ingrid Feder, and Director of Medical Services
Colleen Gallagher. The plaintiff alleges that he suffers from several serious medical conditions
and that the defendants have failed to provide him with treatment. For the reasons set forth
below, the Court will dismiss the complaint in part.
I.

Standard of Review
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil complaints

against governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous,
malicious, or 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. Where the plaintiff is representing
himself, the Court is obligated to “construe” complaints “liberally and interpret[] [them] to raise
the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013).

(internal quotation marks and citation omitted).
Although detailed allegations are not required under Rule 8(a) of the Federal Rules of
Civil Procedure, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when a plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). A
complaint that includes only “‘labels and conclusions,’ ‘a formulaic recitation of the elements of
a cause of action’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement,’” does not meet
the facial plausibility standard. Id. (quoting Twombly, 550 U.S. at 555, 557).
II.

Factual Allegations
Since his admission to the Department of Correction in 1994, the plaintiff has suffered

from a disabling condition that affects his left ankle. See Compl., ECF No. 1, ¶ 19. The
condition requires the plaintiff to wear a “customized, molded brace.” Id. ¶ 14. The brace must
be regularly maintained and re-adjusted to fit his ankle. Id. The disabling condition affecting his
ankle is very painful. Id. ¶ 15. Injections of a steroid every few months are necessary to control
the pain. Id.
Prior to June 2020, the plaintiff repeatedly submitted inmate request forms to the medical
department at Corrigan-Radgowski seeking “proper support” for his left ankle and steroid
injections to relieve the severe pain caused by the condition affecting his ankle. Id. ¶ 16. In
response to these requests, Nurses Lozada and Burns and Nursing Supervisors Burns and Benoit
indicated that his name would be placed on the MD sick call list. Id. ¶ 17. The plaintiff suggests

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that he never saw or was treated by a physician and that Nurses Lozada and Burns and Nursing
Supervisors Burns and Benoit failed to provide him with treatment to alleviate his painful ankle
condition or refer him to have his ankle brace re-adjusted. Id. The plaintiff also filed requests
for Health Services Review seeking treatment for his painful ankle condition. Id. ¶ 18.
Nurse/HSAR Coordinator Brennan either ignored the requests or rejected the requests due to a
technical defect. Id.
In August 2020, the plaintiff reported that he was experiencing severe pain near his left
kidney, his lower right abdomen, his right testicle, and his right thigh and that he was urinating
frequently. Id. ¶ 20. The plaintiff was concerned because of his family’s history of cancer. Id.
In response to his requests for a diagnosis and treatment of his symptoms, Nurses Lozada and
Burns and Nursing Supervisors Burns and Benoit placed him on the Nurse sick call list but did
not place him on the MD sick call list, despite promising to do so. Id. ¶ 22. The plaintiff
suggests that Nurses Lozada and Burns and Nursing Supervisors Burns and Benoit failed to
facilitate diagnostic testing or treatment of his symptoms. Id.
The plaintiff also filed requests for Health Services Review and Health Services
Grievances seeking treatment for his kidney and abdominal pain. Id. Nurse/HSAR Coordinator
Brennan, at the direction of Director of Medical Services Gallagher, would either ignore the
requests or reject the requests for the purpose of delaying a diagnosis of his symptoms or
denying treatment for his symptoms. Id. At some point, Dr. Feder prescribed “Flomax” and a
low dose of aspirin in response to the plaintiff’s complaints. Id. ¶ 23. These medications did not
alleviate the plaintiff’s symptoms. Id.
On March 3, 2021, Dr. Feder referred the plaintiff for diagnostic blood work. Id. ¶ 24.

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None of the defendants discussed the results of the bloodwork with the plaintiff or referred him
for any other diagnostic testing. Id. ¶ 25. The plaintiff has become distressed because he
suspects that the cause of the pain in his left kidney, his lower right abdomen, his right testicle,
and his right thigh is due to a serious medical condition that might require him to use a
colostomy bag. Id. ¶¶ 27-28.
III.

Discussion
The plaintiff alleges that the defendants have been deliberately indifferent to his serious

medical conditions in violation of the Eighth Amendment and that their acts or omissions
constitute the intentional infliction of emotional distress under state law. In addition, although
the plaintiff invokes the ADA only in his jurisdictional allegations, the Court will address the
possibility of an ADA claim here as well. The plaintiff seeks compensatory and punitive
damages and injunctive relief. Id. at 7.
A.

ADA

Under Title II of the ADA, “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. To state a claim under the ADA, a plaintiff must allege that “1) he is a
qualified individual with a disability; 2) [the defendant] is an entity subject to the act[]; and 3) he
was denied the opportunity to participate in or benefit from [the defendant’s] services, programs,
or activities or [the defendant] otherwise discriminated against him by reason of his disability.”
Wright v. New York State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (citation omitted).
The plaintiff alleges that he suffers from a painful, disabling condition that affects his left

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ankle and requires him to bear a brace to assist him in ambulating. This allegation satisfies the
first element of an ADA claim. Furthermore, the Department of Correction is an entity that is
subject to the Act. See, e.g., Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209 (1998) (ADA
“includes State prisoners and prisons within its coverage). Thus, the second element of an ADA
claim has been met.
The plaintiff has asserted no facts to meet the third element of an ADA claim. He does
not identify any program, benefit, or activity that he could not participate in because of his
disability. Nor are there facts to suggest that the defendants treated the plaintiff adversely
because of his disabling conditions or injuries. Rather, his claim is that the defendants failed to
provide him with adequate treatment to alleviate the pain caused by his disabling injury and
failed to refer him for diagnostic testing or re-fitting of his ankle brace. Thus, the plaintiff’s
allegations address the inadequacy of treatment provided by the defendants for his disabling
condition and not discriminatory conduct motivated by his disabling condition. See,
e.g., Schnauder v. Gibens, 679 F. App'x 8, 11 (2d Cir. 2017) (summary order) (affirming the
dismissal of a plaintiff’s ADA/RA claim because inmate’s disability – a breathing difficulty
caused by a broken nose - “was not the reason he was unable to access medical services; rather,
it was the reason he sought such services,” so “he ha[d] not pleaded facts showing that denial of
treatment was attributable to bias based on disability” (citation omitted)); Sherman v. Cook, No.
3:20-CV-1485 (SRU), 2021 WL 311283, at *5 (D. Conn. Jan. 29, 2021) (dismissing claims
asserted under ADA and RA related to treatment of inmate’s shoulder conditions because claims
were “based on a lack of access to adequate medical care, not denial of access to programs or
services available to non-disabled persons, or discrimination on the basis of disability.”); Reese

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v. Breton, No. 3:18-CV-1465 (VAB), 2020 WL 998732, at *5 (D. Conn. Mar. 2, 2020) (“Neither
the ADA nor the RA, however, applies to claims regarding the adequacy or substance of services
provided by correctional departments or provides a remedy for medical malpractice.”) (collecting
cases).
The plaintiff has failed to assert facts to state a plausible claim for relief under the ADA.
The conclusory allegation that the defendants violated his rights under the ADA is dismissed.
See 28 U.S.C. § 1915A(b)(1).
B.

Section 1983 - Eighth Amendment Claims

The Eighth Amendment prohibits “deliberate indifference to an inmate’s serious medical
needs.” Estelle v Gamble, 429 U.S. 97, 104 (1976). An inmate must meet two elements to state
a claim that a medical provider was deliberately indifferent to his medical needs. The objective
element requires the inmate to assert facts to demonstrate that his medical need or condition is
serious. Hill v. Curcione, 657 F.3d 116, 122–23 (2d Cir. 2011) (a serious medical need
contemplates “a condition of urgency” such as “one that may produce death, degeneration, or
extreme pain”) (internal quotation marks and citation omitted). In determining whether a
condition is serious, the court considers whether “a reasonable doctor or patient would find [it]
important and worthy of comment,” whether the condition “significantly affects an individual's
daily activities,” and whether it causes “chronic and substantial pain.” Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citations omitted).
The second element is subjective. To meet this element, the inmate must allege that the
medical provider “act[ed] with a sufficiently culpable state of mind.” Hill, 657 F.3d at 122
(citation omitted). This state of mind may be shown by the assertion of facts suggesting that

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that the medical provider was aware that his actions or inactions would cause a substantial risk of
serious harm. Id. (“[T]he official must “‘know[ ] of and disregard[ ] an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.’”)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Mere negligent conduct or malpractice,
however, does not constitute deliberate indifference. See Hill, 657 F.3d at 123; Chance, 143
F.3d at 703.
The plaintiff alleges that for over 25 years, he has suffered from a painful and debilitating
condition that affects his left ankle. In August 2020, he experienced severe pain in his left
kidney, his lower right abdomen, his right testicle, and his right thigh. These allegations of
chronic and debilitating pain are sufficient to meet the objectively serious prong of the Eighth
Amendment standard. See, e.g., Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003) (An inmate
need not “demonstrate that he or she experiences pain that is at the limit of human ability to bear,
nor do[es] [this Court] require a showing that his or her condition will degenerate into a life
threatening one.”).
The plaintiff states that he made all defendants aware of both painful conditions and his
need for testing to determine the cause of his abdominal and kidney pain, his need to have his
ankle brace re-fitted, and his need for relief from the pain in his ankle but the defendants either
ignored his requests, delayed the provision of treatment, or failed to facilitate the provision of
treatment. The plaintiff has plausibly alleged that the defendants were deliberately indifferent to
his serious physical symptoms and needs/conditions.
To the extent that he seeks punitive and compensatory damages from the defendants in

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their official capacities for violations of his Eighth Amendment rights, those claims for relief are
barred by the Eleventh Amendment and are dismissed under 28 U.S.C. § 1915A(b)(2). See
Kentucky v. Graham, 473 U.S. 159 (1985) (Eleventh Amendment, which protects the state from
suits for monetary relief, also protects state officials sued for damages in their official capacity);
Quern v. Jordan, 440 U.S. 332, 342 (1979) (Section 1983 does not override a state’s Eleventh
Amendment immunity). The Court will permit the Eighth Amendment deliberate indifference to
medical needs claims to proceed against all defendants in their individual capacities and in their
official capacities to the extent that the plaintiff seeks injunctive relief.
C.

State Law Claims

The plaintiff alleges that the defendants’ conduct constitutes intentional infliction of
emotional distress. To succeed on an intentional infliction of emotional distress claim under
Connecticut law, a plaintiff must establish “(1) that the actor intended to inflict emotional
distress or that he knew or should have known that the emotional distress was a likely result of
his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct
was the cause of the plaintiff's distress; and (4) that the distress suffered by the plaintiff was
severe.” Appleton v. Stonington Bd. of Ed., 254 Conn. 205, 210 (2000) (citation omitted). In
addition, “[w]hether a defendant's conduct is sufficient to satisfy the requirement that it be
extreme and outrageous is initially a question for the court to determine. Only where reasonable
minds disagree does it become an issue for the jury.” Id. (citation omitted).
To be held liable for intentional infliction of emotional distress, one's conduct must be
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

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Appleton, 254 Conn. at 210-11 (internal quotation marks and citation omitted). The defendants
alleged failure to timely provide treatment to alleviate the pain caused by the plaintiff’s ankle
condition and to delay a diagnosing the cause of the pain in his kidney and abdomen does not
rise to the level of “extreme and outrageous” conduct as those terms are interpreted by
Connecticut courts. See, e.g., Huff v. W. Haven Bd. of Educ., 10 F. Supp. 2d 117, 122 (D. Conn.
1998) (The standard in Connecticut to demonstrate extreme and outrageous conduct is
“stringent.”). “[E]xtreme and outrageous” conduct is defined as that which “exceed[s] all
bounds usually tolerated by decent society, of a nature which is especially calculated to cause,
and does cause, mental distress of a very serious kind.” DeLaurentis v. New Haven, 220 Conn.
225, 267 (1991). Furthermore, other than describing the distress due to the uncertainty and
speculation about the cause of his abdominal and kidney pain as “extreme” the plaintiff has
asserted no facts to suggest that he suffered severe emotional distress as a result of the conduct of
the defendants.
The Court concludes that the plaintiff has not stated a plausible claim that the conduct of
the defendants constituted intentional infliction of emotional distress. This tort claim is
dismissed. See 28 U.S.C. § 1915A(b)(1).
ORDERS
In accordance with the foregoing analysis, the Court enters the following orders:
(1)

The claim seeking monetary damages from the defendants in their official

capacities for violations of the plaintiff’s Eighth Amendment rights is DISMISSED pursuant to
28 U.S.C. § 1915A(b)(2). The ADA claim and the state law claim of intentional infliction of
emotional distress are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).

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The Eighth Amendment deliberate indifference to medical needs claims will proceed
against all defendants in their individual capacities and in their official capacities to the extent
that the plaintiff seeks injunctive relief.
(2)

Within twenty-one (21) days of this Order, the Clerk shall prepare a summons

form and send an official capacity service packet to the U.S. Marshals Service. The U.S.
Marshals Service shall serve the summons, a copy of the complaint, and a copy of this order on
Nurse/Health Services Administrative Remedy Coordinator Janine Brennan, Nurse Kayla
Lozada, Nurse Peter Burns, Nursing Supervisor Kara Phillips, Nursing Supervisor Amy Benoit,
Dr. Ingrid Feder, and Director of Medical Services Colleen Gallagher in their official capacities
by delivering the necessary documents in person to the Office of the Attorney General,
165 Capitol Avenue, Hartford, CT 06160.
(3)

Within twenty-one (21) days of this Order, the Clerk shall verify the current work

addresses of: Nurse/Health Services Administrative Remedy Coordinator Janine Brennan, Nurse
Kayla Lozada, Nurse Peter Burns, Nursing Supervisor Kara Phillips, Nursing Supervisor Amy
Benoit, Dr. Ingrid Feder, and Director of Medical Services Colleen Gallagher and mail a copy of
the complaint, this order, and a waiver of service of process request packet to each defendant in
his or her individual capacity at his or her confirmed address. On the thirty-fifth (35th) day after
mailing, the Clerk shall report to the Court on the status of each request. If any defendant fails to
return the waiver request, the Clerk shall make arrangements for in-person service by the U.S.
Marshals Service and that defendant shall be required to pay the costs of such service in
accordance with Federal Rule of Civil Procedure 4(d).
(4)

Defendants Brennan, Lozada, Burns, Phillips, Benoit, Feder, and Gallagher shall

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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 the defendants 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 additional defenses permitted
by the Federal Rules.
(5)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 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.
(7)

If the plaintiff changes his address at any time during the litigation of this case,

Local Court 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 should write PLEASE NOTE MY NEW ADDRESS on
the notice. If the plaintiff has more than one pending case, he should indicate all case numbers in
the notification of change of address. The plaintiff should also inform the attorney for the
defendants of his new address.
(8)

The plaintiff shall utilize the Prisoner Efiling Program when filing documents

with the Court. The plaintiff is advised that the Program may be used only to file documents
with the Court. Local Court Rule 5(f) provides that discovery requests are not to be filed with
the Court. Therefore, discovery requests must be served on defendants’ counsel by regular mail.
(9)

The Clerk shall send a courtesy copy of the complaint and this order to the

Connecticut Attorney General and to the DOC Legal Affairs Unit.

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(10)

The parties must comply with the District of Connecticut “Standing Order Re:

Initial Discovery Disclosures” which will be sent to the parties by the Clerk. The order also can
be found at http://ctd.uscourts.gov/district-connecticut-public-standing-orders.
SO ORDERED at Hartford, Connecticut this 6th day of October, 2021.
________/s/______________
Michael P. Shea
United States District Judge

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