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Milner v. Black

United States District Court, D. Connecticut

December 5, 2016

SHAWN MILNER, Plaintiff
v.
ALLISON BLACK, et al., Defendants.

          INITIAL REVIEW ORDER

          Stefan R. Underhill United States District Judge

         Plaintiff Shawn Milner, currently incarcerated at the Northern Correctional Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983 alleging that the defendants were deliberately indifferent to his serious medical needs. Milner names as defendants Warden Allison Black, Deputy Warden Kim Jones, Lieutenant Devone Bishop, Correctional Officer Ried, Correctional Officer John Doe, Dr. Sara Blumberg, and Nurse Michael Tyszka. The complaint was scanned at the correctional facility and was received by the court on September 27, 2016. (doc. 1) Milner's motion to proceed in forma pauperis was granted on September 29, 2016. (doc. 6)

         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. 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 plausible 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

         After Milner was admitted to the Bridgeport Correctional Center, he informed the intake nurse, Michael Tyszka, that he had a seizure disorder, had been issued a bottom bunk pass and was prescribed various medications. When he reached his housing unit, Milner told Unit Officer Doe that he had a bottom bunk pass as a result of his seizure disorder. Officer Doe told Milner that no one told him about the pass. He told Milner to enter the cell and he would contact a supervisor. Shortly thereafter, Officer Doe stated that Nurse Tyszka denied that Milner had a bottom bunk pass. When Milner complained that the pass had been honored at his previous place of confinement, Officer Doe stated that there was nothing he could do and directed Milner to speak to a lieutenant when he toured the housing unit.

         On March 28, 2016, Milner wrote to Lieutenant Bishop after having spoken with her during a tour of the unit. Milner complained about being in a top bunk despite a diagnosed seizure disorder and a bottom bunk pass. Lieutenant Bishop did not respond to the letter or take any action to address the situation.

         On March 29, 2016, Milner wrote to Dr. Blumberg. Nothing was done. On March 30, 2016, Milner wrote to Warden Black about his medical issue. He complained about being forced into a top bunk despite having a bottom bunk pass. Milner received no response and no action was taken.

         On April 3, 2016, Milner began to feel lightheaded. He saw spots and experienced blurred vision. Milner recognized these symptoms as preliminary indicators of a seizure. Milner called for help. After about ten minutes, Correctional Officer Ried came to Milner's cell door. Milner explained that he was experiencing signs of an oncoming seizure and asked Correctional Officer Ried to contact the medical unit. Milner began to feel extremely disoriented and got into his top bunk. Milner experienced a violent tonic-clonic seizure, which caused him to fall off the bunk onto the concrete floor. Milner injured his shoulder and head in the fall.

         Milner remained on the floor, seizing, until a “code white, ” signaling a serious medical emergency, was called. Nurse Tyszka responded to the code and observed Milner convulsing on the floor. Milner was taken to the medical unit on a stretcher. He awoke in an ictal state and slowly recovered his orientation. Milner further alleges that the medical code was not called until Milner's cellmate and other inmates on the tier had been banging and yelling for ten minutes. Milner now fears being returned to a top bunk.

         II. Analysis

         Milner includes two counts in his complaint. In the first count, he alleges that all defendants were made aware of his seizure disorder, yet failed to protect him from harm. In the second count, Milner alleges that the defendants were deliberately indifferent to his serious medical need when they failed to provide needed treatment for his condition.

         It is well settled in this circuit that a plaintiff must allege facts demonstrating the personal involvement of each defendant in the alleged constitutional violation before damages can be awarded. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Milner alleges that he wrote to defendants Lieutenant Bishop, Warden Black and Dr. Blumberg about his situation. Although those allegations may not be sufficient at trial or on a motion for summary judgment, they are sufficient to state a claim for supervisory liability against those three defendants. See Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013). Milner, however, makes no allegations against defendant Deputy Warden Jones in his statement of facts. Absent any allegations that she was even aware of the situation, there is no factual basis for a damages claim against her. Any claim against defendant Jones in her individual capacity is dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

         Milner also asserts a claim for deliberate indifference to a serious medical need. To state a claim for deliberate indifference to a serious medical need, a plaintiff must show both that his medical 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. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). The condition must produce death, degeneration, or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Subjectively, the defendants must have been actually aware of a substantial risk that the inmate would suffer serious harm as a result of their actions or inactions. 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.

         Milner alleges that he suffers from a seizure disorder. Other district courts considering this condition have held that a seizure disorder is a serious medical need. See, e.g., Harrington v. Vadlamudi, 2016 WL 4570441, at *7 (N.D.N.Y. Aug. 9, 2016) (“A seizure condition is a serious medical condition and a failure to respond to an inmate's complaints constituting the possible onset of a seizure may constitute a ...


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