United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. Underhill United States District Judge.
Pedro Gonzalez Torres (“Gonzalez”),
state prisoner currently confined at MacDougall-Walker
Correctional Institution in Suffield, Connecticut, has filed
suit pro se under 42 U.S.C. § 1983, alleging
that the defendants violated his rights under the Eighth,
Ninth, and Fourteenth Amendments to the United States
Constitution through deliberate indifference to his serious
medical needs. Gonzalez names as defendants UConn Health; the
Department of Correction; Commissioner of Correction Scott
Semple; the Connecticut Department of Public Health; Medical
Supervisor “John/Jane Smith”; Nurse “Rob
Smith”; Doctor “John Doe”; Doctor
“Jane Smith”; and the manufacturer and/or
provider of Neurontin medication, “John/Jane
Smith.” Gonzalez's complaint was filed on February
23, 2017, Doc. No. 1, along with a motion for leave to
proceed in forma pauperis, Doc. No. 2.
Gonzalez's motion to proceed in forma pauperis
was granted on February 27, 2017. Doc. No. 7.
28 U.S.C. § 1915A, 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. 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).
March 29, 2016, while confined at Northern Correctional
Institution, Gonzalez awoke with severe back pain. Compl.,
Doc. No. 1, at 5. On May 29, 2016, Gonzalez saw Dr.
“Jane/Smith” at Walker Correctional Institution.
Id. She prescribed Gabapentin (Neurontin), an
anticonvulsant used to control seizures, neuralgia, and other
conditions. See Gabapentin, Mayo Clinic (2017),
23, 2016, Gonzalez began exhibiting symptoms that he later
discovered had been attributed to Neurontin. Compl., Doc. No.
1, at 5. On July 1, 2016, x-rays confirmed “serious
medical issues.” Id. (brackets omitted)
Regardless, Gonzalez was ordered to continue taking the
medication. Id. On August 9, 2016, Gonzalez wrote to
the medical department complaining of “pains and
medical issues.” Id. at 6 (brackets omitted).
October 21, 2016, Gonzalez experienced shortness of breath.
Id. A desk officer, Shulz, contacted the medical
department multiple times on Gonzalez's behalf, but was
told there was no medical emergency. Id.
Gonzalez's medical file reflected that he suffers from
asthma and back issues. Id. Although Gonzalez only
alleges in the complaint that he experienced shortness of
breath, he states in an attached grievance and letter to the
Department of Public Health that he also suffered chest
pains. See Exs. D & E to Compl., Doc. No. 1, at
22 & 26. Later that day, Gonzalez was called to the
medical department. Compl., Doc. No. 1, at 6. The nurse, Rob,
acted disrespectfully and made Gonzalez wait a long time
before he was seen. Id.
November 4, 2016, Gonzalez claims that he wrote to
Commissioner Semple and Correctional Managed Health Care
regarding the matters alleged in the complaint. Id.
The attached exhibit purporting to be copies of the letters,
however, consists of Department of Public Health forms with
an envelope indicating that the forms were sent to
Correctional Managed Health Care but could not be delivered.
See Ex. E to Compl., Doc. No. 1, at 25. Although
Gonzalez alleges that Commissioner Semple instructed him to
submit a grievance, his evidence shows that action was
recommended by a nurse at the Department of Public Health.
See Id. at 32. In any event, nothing was done to
redress Gonzalez's situation. Id.
initial matter, the Court notes that Gonzalez has included as
defendants UConn Health, the Department of Correction and the
Department of Public Health. Section 1983 requires that each
defendant be a person acting under color of state law. 42
U.S.C. § 1983 (“Every person who, under color of
any statute, ordnance, regulation, custom or usage, of any
State … subjects or causes to be
subjected….”). State agencies are not persons
within the meaning of section 1983. See Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989) (state
agencies cannot be sued under section 1983); Ferla v.
Correctional Managed Health Care, 2015 WL 5826812, at *2
(D. Conn. Oct. 2, 2015) (University of Connecticut Health
Center and its divisions are not persons within the meaning
of section 1983). Because none of those entities is a proper
defendant, all claims against UConn Health, the Department of
Correction and the Department of Public Health are dismissed.
contends that the defendants have violated his Eighth, Ninth
and Fourteenth Amendment rights. See Compl., Doc. No 1, at 6.
His primary claim is that the defendants were deliberately
indifference to his serious medical needs in violation of the
Eighth Amendment. He asserts two deliberate indifference
claims. First, Dr. Jane Smith improperly prescribed Neurontin
for an off-label use and caused him to suffer side-effects of
the medication. See Id. at 5. Second, Nurse Rob was
deliberately indifferent to his claims of shortness of breath
and chest pains by refusing to treat him for four hours.
See Id. at 6.
state a claim for deliberate indifference to a serious
medical need, Gonzalez 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)). The deliberate
indifference standard has both objective and subjective
components. 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)-that is, 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 actually have been 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. Nor is
deliberate indifference satisfied by a difference of opinion
regarding what constitutes an appropriate response and
treatment. See Ventura v. Sinha, 379 F. App'x 1,
2-3 (2d Cir. 2010); Chance v. Armstrong, 143 F.3d
698, 702 (2d Cir. 1998). Yet even though a disagreement over
treatment is not cognizable under section 1983, the treatment
actually given must be adequate. See Chance, 143
F.3d at 703.
of severe back pain can constitute a serious medical need.
See, e.g., Guarneri v. Hazzard, 2008 WL
552872, at *6 (W.D.N.Y. Feb. 27, 2008) (“[s]evere back
pain, especially if lasting an extended period of time, can
amount to a serious medical need under the Eighth
Amendment”); Faraday v, Lantz, 2005 WL
3465846, at *5 (D. Conn. Dec. 12, 2005) (lower back pain
caused by herniated discs and sciatica constitute a serious
medical need). Gonzalez alleges that he has back issues and
that he experienced severe pain in March 2016. To the extent
that Gonzalez has challenged the use of Neurontin to address
his back issues, his claim fails, because the mere use of a
drug for an off-label purpose does not constitute deliberate
indifference. Although drug makers cannot market a drug for
off-label purposes, federal law does not prohibit doctors
from prescribing a drug for off-label purposes. See
Buckman Co. v. Plaintiff's Legal Comm., 531 U.S.
341, 350 (2001). Thus, any claim that Dr. Smith improperly
prescribed Neurontin constitutes a disagreement about
treatment, which is not cognizable under the Eighth
also alleges that he suffered side-effects from Neurontin but
was instructed to keep taking the medication. Gonzalez does
not identify the nature of those side-effects. Although he
alleges that x-rays confirmed “serious medical issues,
” he does not identify those issues or submit a copy of
the x-ray results. See Compl., Doc. No. 1, at 5
(brackets removed). The only document Gonzalez submits to
support this allegation merely confirms that x-rays were
taken, and that Gonzalez was instructed to continue taking
his medication. Absent more detailed factual allegations, I
cannot determine whether the side-effects constitute a
serious medical needs. In addition, Gonzalez alleges no facts
suggesting that any defendant was aware of a risk that he
would suffer serious harm. Gonzalez's allegations appear
to raise, at most, a claim for medical malpractice, which is
not cognizable under section 1983. Accordingly, I dismiss
Gonalez's deliberate indifference claim relating to the