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Milner v. Mulligan

United States District Court, D. Connecticut

December 15, 2016

SHAWN MILNER, Plaintiff,
v.
WILLIAM MULLIGAN, et al., Defendants.

          INITIAL REVIEW ORDER

          Stefan R. Underhill United States District Judge

         Shawn Milner, currently incarcerated at Northern Correctional Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983. Milner alleges that the defendants used excessive force and retaliated against him. He also includes claims for violation of his rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. § 1320d et seq. Milner names as defendants Warden William Mulligan, Jason Cahill, Brian Bujnicki, Michael McCormick, Correctional Officer Titus, Correctional Officer Laprey and Nurse Barbra Savoie. The complaint is dated November 14, 2016, the same day it was received by the court. Milner's motion to proceed in forma pauperis was granted on November 15, 2016.

         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 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

         On May 28, 2016, Milner was housed in the infirmary at Northern Correctional Institution. He stopped Laprey during a tour of the unit and told Laprey that he needed to see medical staff because he was experiencing dizziness and blurred vision, preliminary indications of a seizure. Milner told Laprey that he has a seizure disorder and had not received his medication that morning. Laprey made fun of Milner's condition. Before walking away, Laprey said that he would tell medical staff that Milner was faking a seizure.

         Savoie came to the door of Milner's room. Milner told her about the preliminary seizure indicators. Savoie advised Milner to lie down on his bunk. She ignored Milner's objection that he could fall off the bunk if he experienced a seizure. Milner lay down on the floor to ensure his safety. Shortly thereafter, he lost consciousness. Savoie and Bujnicki entered the cell to assess Milner. Savoie disclosed confidential medical information to Bujnicki during and prior to the incident.

         Bujnicki observed Milner lying face down. He was unable to determine whether Milner was “playing possum.” Compl. at ¶ 21 (doc. # 1-1). Rather than permitting medical staff to attend Milner, Bujnicki deployed a chemical agent in the cell. When Milner was unresponsive, Bujnicki directed Laprey to get a handheld camera to record the incident and Titus to get a convex shield. Once the shield was placed over Milner's head and body, Bujnicki directed Savoie to perform a medical assessment. No vital signs were taken and seizure protocols were not followed. Milner was decontaminated and transferred from medical cell 1 to medical cell 2 and placed on the floor with a mattress.

         Milner overheard McCormick speaking outside the cell. McCormick stated that he was assisting Bujnicki and heard Bujnicki order Milner to “cuff up.” Compl. at ¶ 25. When Milner regained consciousness he was unable to open his eyes and his body felt like it was burning. McCormick spoke to Milner to calm him down. On July 12, 2016, Mulligan noted in his incident report that staff had taken a cautious approach in dealing with Milner because of an alleged escape attempt. On July 17, 2016, Cahill reviewed the incident report and determined that staff had acted appropriately.

         Following the incident, Milner filed a grievance. In the morning and evening of July 13, 2016, Bujnicki kicked and punched Milner's door and threatened him. Milner alleges that this action was in retaliation for his filing the grievance. Through the filing of the complaint Bujnicki and others have threatened and harassed Milner, issued false disciplinary reports, tampered with his legal and social mail and religious artifacts, and assaulted him when convenient.

         II. Analysis

         Milner includes five counts in his complaint. In the first count, Milner alleges that Savoie violated his First Amendment rights when she failed to comply with HIPAA protocols and divulged confidential medical information and violated his Fourteenth Amendment rights as a pretrial detainee when she failed to follow seizure protocols. In the second count, Milner alleges that Bujnicki used excessive force against him when he deployed a chemical agent when Milner was unconscious and Titus used excessive force by forcing Milner's head and back into the floor with the convex shield. In the third count, Milner alleges that Mulligan, Cahill and McCormick failed to discipline the defendants for their unprofessional conduct. In the fourth count, Milner alleges that Bujnicki retaliated against him for filing a grievance. Finally, in the fifth count, Milner alleges that Laprey intentionally delayed medical attention. Milner seeks injunctive relief in the form of discipline of all defendants and an order that they comply with ADA guidelines as well as damages.

         A. HIPAA and Right to Privacy Claims

         In his introduction, Milner states that he brings a claim for HIPAA violations. To the extent that Milner is attempting to assert a claim for violation of HIPAA, the claim must be dismissed. HIPAA does not provide a private right of action. See Mascetti v. Zozulin, 2010 WL 1644572, at *4 (D. Conn. Apr. 20, 2010) (no private right of action under HIPAA as enforcement of HIPAA is limited to the Secretary of Health and Human Services); see also Rosado v. Herard, 2014 WL 1303513, at *4 (S.D.N.Y. Mar. 25, 2014) (no express or implied private right of action under HIPAA); Barnes v. Glennon, 2006 WL 2811821, at *6 (N.D.N.Y. Sept. 28, 2006) (same). Accordingly, any claims for violation of HIPAA are dismissed.

         In the recitation of his legal claims, Milner contends that Savoie violated his First Amendment rights by disclosing information protected by HIPAA. Although the First Amendment does not confer any right to privacy, I construe Milner's complaint as attempting to raise a Fourteenth Amendment right to privacy claim on account of Savoie's disclosure of Milner's medical condition. In other words, Milner asserts that his ...


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