United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. Underhill United States District Judge
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
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
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.
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.
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.
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.
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.
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.
HIPAA and Right to Privacy Claims
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
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 ...