United States District Court, D. Connecticut
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C.
Jeffrey Alker Meyer, United States District Judge
Jose Rivera is incarcerated at Willard-Cybulski Correctional
Institution. He has filed a complaint pro se and
in forma pauperis under 42 U.S.C. § 1983
against Nurse Kevin McCrystal, Drs. Johnny Wu, Lauren Geaney,
Omprakash Pillai, and Syed Naqvi, and Doctor of Nursing
Practice Mary Ellen Castro. Based on my initial review
pursuant to 28 U.S.C. § 1915A, I conclude that the
complaint should be dismissed without prejudice on the ground
that it fails to state plausible grounds for relief.
following allegations from plaintiff's complaint are
accepted as true for purposes of the Court's initial
review. Plaintiff sustained a gunshot to his left ankle in
2006; since then, he has experienced pain in his ankle for
which he has been prescribed pain medication over a period of
years. After his pain intensified, medical professionals
determined a problem with a screw in plaintiff's ankle,
as well as a problem with his tibia and fibula. On April 12,
2016, plaintiff underwent surgery to fix the broken screw,
which was successful. But the surgery did not fix
plaintiff's tibia issue and resulted in removal of a
portion of plaintiff's leg bone without his consent.
Plaintiff alleges that he would not have consented to the
removal of any bones had he been informed.
also alleges that, as a result of taking pain medication over
a series of years, his liver has begun to fail. Various
medical professionals have ordered blood tests to determine
plaintiff's liver function; tests of August 18, 2015,
March 24, 2016, and June 16, 2016, show liver function
outside the normal range. After plaintiff complained of other
gastrointestinal distress, he was prescribed “lactose,
” but that did not improve his condition. He asserts
that his doctors are not being “seriously
proactive” about his liver levels, and that his
“liver is in danger of shutting down.” Doc. #1 at
¶¶ 30, 34.
Pursuant to 28 U.S.C. § 1915A(b), the Court must review
prisoner civil complaints against governmental actors and
“dismiss . . . any portion of [a] complaint [that] is
frivolous, malicious, or 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. The allegations of a pro
se plaintiff's complaint must be read liberally to
raise the strongest arguments that they suggest. See
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)
(discussing special rules of solicitude for pro se
recent years, the Supreme Court has set forth a threshold
“plausibility” pleading standard for courts to
evaluate the adequacy of federal court complaints. A
complaint must allege enough facts-as distinct from legal
conclusions-that give rise to plausible grounds for relief.
See, e.g., Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Notwithstanding the rule of liberal
interpretation of a pro se complaint, a pro
se complaint may not survive dismissal if its factual
allegations do not meet the basic plausibility standard.
See, e.g., Fowlkes v. Ironworkers Local 40,
790 F.3d 378, 387 (2d Cir. 2015).
brings this case under 42 U.S.C. § 1983, which creates a
federal cause of action against any person who, under color
of state law, deprives a citizen or a person within the
jurisdiction of the United States of any right, privilege, or
immunity secured by the Constitution or laws of the United
States. 42 U.S.C. § 1983. It is well established that
“[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 Dept. of Corr. Servs., 719 F.3d 127, 138 (2d Cir.
2013); Hilton v. Wright, 673 F.3d 120, 127 (2d Cir.
2012). If a plaintiff does not allege that a defendant acted
purposefully or maliciously to harm him, then a plaintiff
must at the least allege that a defendant has acted with
deliberate indifference-that is, with awareness that
plaintiff would suffer serious harm as a result of the
defendant's actions or inactions. See Salahuddin v.
Goord, 467 F.3d 262, 279-80 (2d Cir. 2006). By contrast,
allegations of ordinary medical malpractice or negligence do
not allege deliberate indifference of a constitutional
magnitude and do not suffice to allege a cognizable claim for
a violation of the Eighth Amendment. Ibid.; see
also Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011).
extent that plaintiff alleges that he was subjected to
medical procedures without giving his informed consent, this
claim may be characterized as a claim for a denial of the
right to medical information in violation of the
Constitution's Due Process Clause. See Pabon v.
Wright, 459 F.3d 241, 249-53 (2d Cir. 2006). But just as
for a claim of cruel and unusual punishment under the Eighth
Amendment, a plaintiff who seeks relief for denial of the due
process right to medical information must establish
deliberate indifference rather than mere negligence.
Id. at 251.
no matter what constitutional label is used to describe
plaintiff's claim, he does not allege any facts to
suggest that any of the defendants acted with deliberate
indifference rather than at most simple negligence. Instead,
the allegations suggest that medical personnel were actively
engaged in the diagnosis and evaluation of plaintiff's
ankle and leg condition. Similarly, plaintiff's
allegations regarding his possible liver failure and
gastrointestinal pain do not rise to the level of deliberate
indifference, because plaintiff alleges that defendants have
engaged in continuous monitoring of his liver functions,
prescribing medications and testing for his gastrointestinal
complications. Although plaintiff is understandably upset
that he has suffered many medical complications, the facts
alleged in his complaint fall well short of showing that any
of the named defendants have acted with deliberate
indifference to his medical needs.
the foregoing reasons, the complaint is DISMISSED. If
plaintiff believes in good faith that he is able to allege
facts indicating that defendants acted with intentional or
deliberate indifference, then he may file a motion to reopen
this case along with an amended complaint stating such
additional facts as to each named defendant ...