United States District Court, D. Connecticut
January 9, 2017
ANDRES J. ACEVEDO, Plaintiff,
DEBBIE WILSON, et al., Defendants.
INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. §
Jeffrey Alker Meyer United States District Judge.
Andres J. Acevedo is confined at the Cheshire Correctional
Institution. He has filed a complaint pro se and
in forma pauperis under 42 U.S.C. § 1983.
Plaintiff names two defendants, Nurse Debbie Wilson and Dr.
Ruiz. He seeks damages as well as declaratory and injunctive
relief. After an initial review, the Court concludes that the
complaint should be served on defendant Wilson; the claim
against defendant Ruiz, on the other hand, will be dismissed
pursuant to 28 U.S.C. § 1915A.
following allegations from plaintiff's complaint are
accepted as true for purposes of the Court's initial
review. Plaintiff has suffered from eye pain and blurred
vision with flashes of light for two years. Doc. #1 at 3
(¶ 6). In September 2015, plaintiff submitted a request
to the medical department at Cheshire Correctional to address
these issues. Id. at 3 (¶ 7). Dr. Ruiz, a
doctor stationed at Cheshire Correctional, then submitted a
request to the Utilization Review Committee seeking approval
for plaintiff to be seen by a specialist. Id. at 3
(¶ 9). The Utilization Review Committee decided to send
plaintiff to the ophthalmology department at the University
of Connecticut hospital. Ibid.
January 5, 2016, an ophthalmologist at the University of
Connecticut diagnosed plaintiff with cataracts and scheduled
him for surgery. Id. at 3 (¶ 10). On February
8, 2016, plaintiff underwent surgery, consisting of a lens
implant in his right eye. Id. at 3 (¶ 11).
Plaintiff had a follow-up visit the next day with the
surgeon, Dr. Ehlers. At this visit, plaintiff complained of
extreme pain. He received prescriptions for various eye
drops, ibuprofen, and Prilosec for pain and sickness.
Id. at 3-4 (¶¶ 12-14), 15.
inmates return from outside medical visits, they report to
the medical unit at Cheshire Correctional to discuss any
orders or prescriptions issued by the consulting physicians.
Id. at 4 (¶ 15). On February 9, 2016, after
returning from his follow-up visit with Dr. Ehlers, plaintiff
reported to the medical unit and met with defendant Wilson.
He gave defendant Wilson the paperwork and prescriptions
provided by Dr. Ehlers and had a brief conversation with her
before returning to his housing unit. Id. at 4
(¶ 16). Defendant Wilson was responsible for submitting
the prescriptions to the pharmacy. Id. at 6 (¶
February 10, 2016, plaintiff returned to the hospital for
another follow-up appointment, complaining of pounding pain
behind his eye. He was prescribed another eye drop.
Id. at 4 (¶ 17). On February 16, 2016,
plaintiff had another follow-up visit with Dr. Ehlers.
Ibid. Plaintiff told Dr. Ehlers that some of the
pain had subsided but that he was experiencing blurred and
hazy vision and a gritty feeling in his eye. Id. at
4 (¶ 19). Plaintiff was again prescribed eye drops.
Id. at 5 (¶ 20), 18.
March 24, 2016, at another appointment with Dr. Ehlers,
plaintiff complained of hazy vision and sensitivity to light,
which caused discomfort and headaches. Id. at 5
(¶ 21). Dr. Ehlers prescribed special glasses to address
these conditions. Ibid. When he returned to Cheshire
Correctional, plaintiff reported to the medical unit and met
with defendant Wilson. At this meeting, defendant Wilson
allegedly tore up and destroyed the prescription for special
glasses and told plaintiff he would not receive the glasses.
She did not provide a reason. Id. at 5 (¶¶
23- 26). Plaintiff also never received Prilosec, which had
been prescribed for sickness resulting from pain medication.
Id. at 6 (¶ 28).
12, 2016, after writing several requests to the medical unit
complaining of severe pain, headaches, and light sensitivity,
plaintiff submitted a grievance seeking a health service
review, requesting the special glasses that he had not
received, and requesting surgery to correct his hazy vision.
Id. at 6 (¶ 30), 20-21.
August 4, 2016, defendant Ruiz submitted a request to the
Utilization Review Committee for a YAG laser treatment to
correct plaintiff's hazy vision. Id. at 6
(¶ 32). On August 9, 2016, plaintiff submitted another
grievance seeking a health service review and requesting the
special glasses. Id. at 6 (¶ 32), 23-24.
Plaintiff never received the special glasses. Id. at
6-7 (¶ 33).
September 14, 2016, plaintiff had another appointment with
Dr. Ehlers. Dr. Ehlers requested an evaluation for YAG laser
treatment and prescribed artificial tears. Id. at 7
(¶¶ 34- 35). Upon returning to the correctional
facility, plaintiff submitted his paperwork and the
prescription for artificial tears to the medical unit.
Plaintiff never received the artificial tears. Id.
at 7 (¶ 37).
November 15, 2016, plaintiff was called to the medical unit
to have blood drawn, which is standard policy whenever an
inmate is scheduled for surgery. Id. at 7-8
(¶¶ 38-39). The following day, defendant Wilson
called plaintiff to the medical unit and informed him that
she had cancelled the surgery. Ignoring Dr. Ehlers'
recommendation, defendant Wilson told plaintiff that before
any surgery could be performed, he had to have someone at the
University of Connecticut determine whether the surgery was
medically necessary. Ultimately, plaintiff underwent the YAG
laser surgery. Id. at 8 (¶¶ 41-43).
lights in the correctional facility are on from 5:30 a.m.
until 11:00 p.m. Although plaintiff can turn off the light in
his cell, daylight still enters through the window to the
outdoors and the window in the cell door. Inmates are
forbidden from blocking the windows or hanging anything from
the bunk to block the light. As a result, plaintiff
constantly experiences debilitating pain from the light. The
prescribed glasses would have allowed plaintiff to block the
light, alleviating his pain. Id. at 9-10
to 28 U.S.C. § 1915A(a), 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. The
Court must accept as true all factual matters alleged in a
complaint, although a complaint may not survive unless its
factual recitations state a claim to relief that is plausible
on its face. See, e.g., Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp.,
770 F.3d 170, 177 (2d Cir. 2014) (same). Nevertheless, it is
well-established that “pro 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).
Supreme Court has made clear, “a prison official's
‘deliberate indifference' to a substantial risk of
serious harm to an inmate violates the Eighth
Amendment.” Farmer v. Brennan, 511 U.S. 825,
828 (1994). A deliberate indifference claim has two component
requirements. The first requirement is objective: the alleged
deprivation must be serious. The second requirement is
subjective: the charged officials must act with a
subjectively reckless state of mind in their denial of
medical care. See Spavone v. New York State Dep't of
Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013);
Hilton v. Wright, 673 F.3d 120, 127 (2d Cir. 2012).
has experienced severe eye pain, headaches, and impaired
vision; he alleges that these conditions were exacerbated
because of delays in treatment and because he was deprived of
the special glasses and artificial tears that were prescribed
to him. Plaintiff's allegations constitute a serious
medical need sufficient to meet for initial pleading purposes
the objective component of the deliberate indifference test.
See, e.g., Koehl v. Dalsheim, 85 F.3d 86,
88 (2d Cir. 1996) (need for corrective eyeglasses was
sufficiently serious medical need, where glasses were
necessary to correct double vision and loss of depth
perception); Madera v. Ezekwe, 2013 WL 6231799, at
*10 (E.D.N.Y. 2013) (impaired vision that plaintiff suffered
while surgeries were delayed was sufficiently serious medical
need); Davidson v. Scully, 155 F.Supp.2d 77, 87
(S.D.N.Y. 2001) (noting that where vision will degenerate in
the absence of corrective glasses, need for vision correction
can be a serious medical need).
respect to the subjective component of deliberate
indifference, plaintiff alleges that defendant Wilson failed
to comply with prescribed treatment by destroying his
prescription for special glasses and by failing to fulfill
the prescription for artificial tears. Failure to comply with
prescribed treatment can constitute deliberate indifference
to a serious medical need. See Todaro v. Ward, 565
F.2d 48, 52 (2d Cir. 1977) (failure of medical staff to
comply with physician's orders resulted in improper
treatment to support deliberate indifference claim;
“[i]t is clear . . . that a constitutional claim is
stated when prison officials intentionally deny access to
medical care or interfere with prescribed treatment.”).
The claim against defendant Wilson for deliberate
indifference to a serious medical need will therefore
plaintiff includes Dr. Ruiz in his claims for failure to
ensure that he received prescribed treatments and
medications, he alleges no facts suggesting that Dr. Ruiz was
aware that these items had not been provided or that other
accommodations for light sensitivity might be required.
Plaintiff alleges that defendant Ruiz submitted the required
Utilization Review Committee requests to enable him to have
the initial cataract surgery and the YAG laser procedure.
Absent allegations that Dr. Ruiz intentionally denied
plaintiff access to medical care or interfered with the
prescribed treatment, plaintiff's complaint fails to
demonstrate the subjective component of the deliberate
indifference standard as to Dr. Ruiz. The claim against Dr.
Ruiz is therefore dismissed pursuant to 28 U.S.C. §
the complaint requests “a preliminary and permanent
injunction ordering the defendants to fill the perscription
[sic] for special glasses, as well as the eye drops, and to
be seen by an outside ophthalmologist.” Doc. #1 at 12
(¶ 61). The Court construes this request as a motion for
a preliminary injunction. Defendant shall respond to the
motion and address why the requested relief should not be
accordance with the foregoing analysis, the Court enters the
following orders: (1) The complaint will proceed on the
deliberate indifference claim against defendant Wilson.
Plaintiff's claim against defendant Ruiz is
DISMISSED pursuant to 28 U.S.C. §
1915A(b)(1). If plaintiff wishes to replead the claim against
defendant Ruiz, he may file an amended complaint within
thirty (30) days of the date of this order. Any amended
complaint should include all of plaintiff's claims that
he wishes to pursue (e.g., the amended complaint
should also include the claim against defendant Wilson).
The Clerk shall verify the current work
address of defendant Wilson with the Department of Correction
Office of Legal Affairs, mail a waiver of service of process
request packet to her at the confirmed address within
twenty-one (21) days of this Order, and
report to the Court on the status of the waiver request on
the thirty-fifth (35) day after mailing. If the defendant
fails to return the waiver request, the Clerk shall make
arrangements for in-person service by the U.S. Marshals
Service on the defendant in her individual capacity and the
defendant shall be required to pay the costs of such service
in accordance with Federal Rule of Civil Procedure 4(d).
The Clerk shall prepare a summons form and
send an official capacity service packet to the U.S. Marshal
Service. The U.S. Marshal is directed to effect service of
the complaint on defendant Wilson in her official capacity at
the Office of the Attorney General, 55 Elm Street, Hartford,
CT 06141, within twenty-one (21) days from
the date of this order and to file a return of service within
thirty (30) days from the date of this order.
The Clerk shall send written notice to
plaintiff of the status of this action, along with a copy of
The Clerk shall send a courtesy copy of the
Complaint and this Ruling and Order to the Connecticut
Attorney General and the Department of Correction Office of
On or before February 9, 2017, defendant
shall file a response to plaintiff's request for a
preliminary injunction, showing why the relief requested
should not be granted.
Defendant shall file her response to the complaint, either an
answer or motion to dismiss, within sixty (60)
days from the date the waiver form is sent. If she
chooses to file an answer, she shall admit or deny the
allegations and respond to the cognizable claim recited
above. She also may include any and all additional defenses
permitted by the Federal Rules.
Discovery, pursuant to Federal Rules of Civil Procedure 26
through 37, shall be completed within seven months
(210 days) from the date of this order. Discovery
requests need not be filed with the court.
motions for summary judgment shall be filed within
eight months (240 days) from the date of
Pursuant to Local Civil Rule 7(a), a nonmoving party must
respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed. If no response is filed, or
the response is not timely, the dispositive motion can be
granted absent objection.
plaintiff changes his address at any time during the
litigation of this case, Local Court Rule 83.1(c)2 provides
that the plaintiff MUST notify the court. Failure to do so
can result in the dismissal of the case. Plaintiff must give
notice of a new address even if he is incarcerated. Plaintiff
should write PLEASE NOTE MY NEW ADDRESS on the notice. It is
not enough to just put the new address on a letter without
indicating that it is a new address. If plaintiff has more
than one pending case, he should indicate all of the case
numbers in the notification of change of address. Plaintiff
should also notify the defendant or the attorney for the
defendant of his new address.
Plaintiff shall utilize the Prisoner Efiling Program when
filing documents with the court.