United States District Court, D. Connecticut
INITIAL REVIEW ORDER RE AMENDED COMPLAINT
R. UNDERHILL, District Judge.
Gregory Swinton, currently incarcerated at Northern
Correctional Institution in Somers, Connecticut, filed this
case pro se under 42 U.S.C. Â§ 1983. Swinton alleges
that the defendants deprived him of a proper diet for
fifty-seven days in violation of his rights under the Eighth
Amendment. Swinton named as defendants Dr. Carson Wright and
the Northern Medical Center. On May 9, 2016, I entered an
Initial Review Order dismissing all claims against Northern
Medical Department and affording Swinton the opportunity to
file an amended complaint against Dr. Wright. Swinton has
filed a motion to amend his complaint (doc. # 10). That
motion is granted and I now consider the amended complaint
and supplemental statement of facts.
section 1915A of Title 28 of the United States Code, I 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. 28 U.S.C. Â§ 1915A. 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
is allergic to eggs and soy products. He was on a medical
diet free from eggs and soy products. On February 17, 2016,
Dr. Wright ordered that Swinton be taken off the medical
diet. Swinton wrote several requests to Dr. Wright but
received no response.
showed outside documentation of his allergies to several
nurses and wardens. All told him that he had to see Dr.
Wright to have his medical diet restored. Swinton was unable
to eat any of the meals provided from February 17, 2016,
until April 8, 2016.
Wright saw Swinton after he had been without his medical diet
for 36 days. Although Swinton showed Dr. Wright the
documentation, Dr. Wright denied his request. Following this
visit, Swinton asked the deputy wardens and correctional
officers to log all meals that contained soy or eggs. They
logged 146 meals. The deputy warden asked Dr. Wright to place
Swinton back on his diet. On April 4, 2016, after receiving
this request, Dr. Wright ordered a blood test to determine
whether Swinton was actually allergic to eggs and soy.
Swinton's diet was restored several days after the test
results came back.
state a claim for deliberate indifference to a serious
medical need, Swinton must show both that his medical need
was serious and that Dr. Wright acted with a sufficiently
culpable state of mind. See Smith v.
Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)).
There are objective and subjective components to the
deliberate indifference standard. Objectively, the alleged
deprivation must be "sufficiently serious."
Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Subjectively, the defendant, Dr. Wright, must have been
actually aware of a substantial risk that the inmate would
suffer serious harm as a result of his action or inaction.
See Salahuddin v. Goord, 467 F.3d 262,
279-80 (2d Cir. 2006). 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 id.
allergies may constitute a serious medical need if they
prevent the inmate from receiving a nutritionally adequate
diet. See Sweeting v. Miller, No. 7:14CV187, 2015 WL
4773276, at *3 (W.D. Va. Aug. 12, 2015) (citing cases). To
state a cognizable claim, the inmate must allege facts
showing that the diet he was provided was not nutritionally
adequate to sustain his health. See Witschi v. North
Carolina Dep't of Public Safety, No. 1:14-cv-68-FDW,
2014 WL 3735135, at *2 (W.D. N.C. July 29, 2014) (citing
alleges that he was unable to eat 146 of the meals served
over the 57 days that he was denied his medical diet. This
allegation is sufficient to support a claim for deliberate
indifference to a serious medical need.
Motion for Appointment of Counsel
has filed a second motion seeking appointment of pro
bono counsel in this action pursuant to 28 U.S.C. Â§
1915. The Second Circuit repeatedly has cautioned the
district courts against the routine appointment of counsel.
See, e.g., Ferrelli v. River Manor Health Care
Center, 323 F.3d 196, 204 (2d Cir. 2003); Hendricks
v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997). The
Second Circuit also has made clear that before an appointment
is even considered, the indigent person must demonstrate that
he is unable to obtain counsel. Saviano v. Local
32B-32J, 75 F.Appx. 58, 59 (2d Cir. 2003) (quoting
Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d
has attached to his motion letters from two law firms
declining representation. Swinton does not indicate in his
motion that he has made any attempt to contact Inmates'
Legal Aid Program, the organization under contract with the
Department of Correction to provide legal assistance to
Connecticut inmates. Absent a denial of assistance by
Inmates' Legal Aid Program or a showing that the
assistance available is ...