United States District Court, D. Connecticut
M. Day, Plaintiff, Pro se, Suffield, CT.
REVIEW ORDER AND ORDER TO SHOW CAUSE
Alker Meyer, United States District Judge.
Jason Day is currently incarcerated at MacDougall-Walker
Correctional Institution. He has filed a complaint under 42
U.S.C. § 1983 against Program Director Colleen
Gallagher, Dr. Fedus, Nurse Nikki, and Administrator Rikell
Lightner. For the reasons set forth below, the complaint is
dismissed in part. Plaintiff has also filed a motion for
preliminary injunction (Doc. #3), seeking an order directing
the defendants to provide him with shower shoes that fit his
feet. Defendants shall respond to this motion and address why
the relief requested should not be granted.
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.
Rule 8 of the Federal Rules of Civil Procedure requires that
a complaint contain " a short and plain statement of the
claim showing that the pleader is entitled to relief."
detailed allegations are not required, " a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 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
Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 557,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although courts
still have an obligation to interpret " a pro
se complaint liberally," the complaint must include
sufficient factual allegations to meet the standard of facial
plausibility. See Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009).
alleges that he suffers from many medical conditions
including chronic lower extremity lymphedema and cellulitis.
These conditions cause swelling in his legs and ulcers or
open wounds on his feet and legs. Possibly in part due to his
condition, plaintiff has very large feet that require
extra-large and wide shower shoes. He does not have shower
shoes that fit his feet. In order to reach the shower in his
housing unit, plaintiff must often walk barefoot through
overflow from the unit toilet that is located in the shower
area. The shower is also used by inmates who are disabled and
have colostomy bags that are emptied near or in the shower.
These conditions subject plaintiff to a great risk of
infection in his feet and legs. Plaintiff alleges that the
defendants have refused to provide him with shower shoes that
fit his feet. Instead, they have told him to purchase the
shoes in the commissary. Plaintiff, however, does not have a
prison job or any other source of income and is unable to
purchase the shoes.
seeks injunctive and declaratory relief and monetary damages.
To the extent plaintiff seeks damages against the defendants
in their official capacities, the claims are barred by the
Eleventh Amendment. See Kentucky v. Graham,
473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985);
Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139,
59 L.Ed.2d 358 (1979). All such official capacity claims are
dismissed pursuant to 28 U.S.C. § 1915A(b)(2). The
Eleventh Amendment, however, does not bar plaintiff's
claim for injunctive relief. See Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Court concludes for now that the plaintiff's allegations
otherwise may state plausible claims of deliberate
indifference to safety and medical needs. See
Gonzalez v. Mullen, 446 Fed.Appx. 17 (9th Cir. 2011)
(inmate's allegation that he was unable to obtain shower
shoes and thereby put at risk of bacterial exposure found to
be sufficient to state an Eighth Amendment claim); but
see Puranda v. Kellett, 2011 WL 6742498, at *4
(E.D. Va. Dec. 22, 2011) (" Shower shoes are not a basic
human need." ). The case will proceed against the
defendants in their individual and official capacities.
Court enters the following orders:
claims against all defendants in their official capacities
for money damages are DISMISSED pursuant to 28 U.S.C. §
1915A(b)(2). The deliberate indifference to safety and
medical needs claims will proceed against defendants Program
Director Colleen Gallagher, Dr. Fedus, Nurse Nikki, and
Administrator Rikell Lightner in their individual and
Within twenty-one (21) days of this Order, the U.S. Marshals
Service shall serve the summons, a copy of the complaint and
this order on the defendants in their official capacities by
delivering the necessary documents in person to the Office of
the Attorney General, 55 Elm Street, Hartford, CT 06141.
Within twenty-one (21) days of this Order, the Clerk shall
ascertain from the Department of Correction Office of Legal
Affairs the current work addresses for Program Director
Colleen Gallagher, Dr. Fedus, Nurse Nikki and Administrator
Rykell Lightner and mail a waiver of service of process
request packet to each defendant in his or her individual
capacity at his or her current work address. On the
thirty-fifth (35th) day after mailing, the Clerk shall report
to the court on the status of all the requests. 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 the defendant shall be required to pay the costs
of such service in accordance with Federal Rule of Civil
Defendants shall 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 ...