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Swinton v. Wright

United States District Court, D. Connecticut

June 28, 2016

GREGORY SWINTON, Plaintiff,
v.
CARSON WRIGHT, et al., Defendants.

          INITIAL REVIEW ORDER RE AMENDED COMPLAINT

          STEFAN R. UNDERHILL, District Judge.

         Plaintiff Gregory Swinton, currently incarcerated at Northern Correctional Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 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.

         Under 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. § 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 litigants).

         I. Allegations

         Swinton 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.

         Swinton 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.

         Dr. 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.

         II. Analysis

         To 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.

         Food 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 cases).

         Swinton 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.

         III. Motion for Appointment of Counsel

         Swinton has filed a second motion seeking appointment of pro bono counsel in this action pursuant to 28 U.S.C. § 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 Cir. 1989)).

         Swinton 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 ...


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