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Neary v. Naqvi

United States District Court, D. Connecticut

July 27, 2017

CHRISTOPHER NEARY, Plaintiff,
v.
SYED JOHAR NAQVI, M.D. sued in individual capacity and official capacity, et al., Defendants.

          MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. 89]

          Vanessa L. Bryant United States District Judge.

         Plaintiff, Christopher Neary (“Neary”), is a paroled former inmate who developed gynecomastia[1] while in prison. Neary seeks declaratory relief, injunctive relief, and monetary damages for his claims of deliberate indifference to a serious medical need and cruel and unusual punishment in violation of the Eighth Amendment as applied to the states under the Fourteenth Amendment. The operative Amended Complaint contains allegations against three groups of Defendants: treating physicians, Utilization Review Committee members, and Wardens from various facilities where he was housed. Defendants seek dismissal for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief may be granted. For the foregoing reasons, Defendants' motion is DENIED IN PART and GRANTED IN PART.

         BACKGROUND

         I. The Parties

         Neary entered the custody of the Connecticut Department of Corrections (“CDOC”) in April 2006 and remained in custody at the time he filed his complaint nearly two years ago in October of 2014. [Dkt. 1 (Compl.) ¶ 1; Dkt. 83 (Am. Compl.) ¶ 25]. Neary has been housed at several facilities within the CDOC system. With respect to relevant dates, Neary was first housed at McDougall Walker Correctional Institution (“MWCI”) from August 2013 until December 21, 2014, when CDOC transferred him to Osborn Correctional Institution (“OCI”). [Dkt. 83 ¶¶ 27-28]. He remained at OCI from December 22, 2014 until November 24, 2015, when CDOC transferred him to Enfield Correctional Institution (“ECI”). Id. ¶¶ 29-30. Neary stayed at ECI for only four days. Id. ¶ 31. On November 30, 2015, CDOC transferred him to Corrigan Ragdowski Correctional Center where he remained for 21 days. Id. ¶ 32-33. Then on December 22, 2015, he was again transferred to Willard Cybulski Correctional Institution (“WCCI”) where he stayed until September 2016. Id. ¶ 35; see [Dkt. 101 at 4]. In September 2016, CDOC transferred Neary to the Walter Brooks House, a male-only work release program with 67 beds. [Dkt. 101 (Opp'n Mot. Dismiss) at 4 n.3]. He stayed there for three months and in December 2016, CDOC discharged him and released him on parole where he now lives at an approved private residence. Id. at 4 n.4.

         During the time of his incarceration at CDOC facilities, he consumed regular meals provided by CDOC. [Dkt. 83 ¶ 36]. These meals contained soy and/or soy byproducts. Id. While incarcerated he developed symptoms of and was diagnosed with gynecomastia, a hormonal disorder that causes “enlargement of the glandular breast tissue.” Id. ¶¶ 18, 20. Gynecomastia can be caused by several factors including “high levels of estrogen resulting from ingestion of phytoestrogen-a component of soy food products that has estrogen-like properties.” Id. ¶ 22.

         The Defendants can be split into three categories of individuals: treating physicians, reviewing physicians, and CDOC Wardens. The first category is comprised of Syed Johar Naqvi, M.D. (“Dr. Naqvi”) and Lavern A. Wright (“Dr. Wright”), the physicians employed by the University of Connecticut (“UConn”) Health Center who directly treated Neary. Dr. Naqvi treated Neary from January 19, 2014 until December 21, 2014, while he was housed at MWCI. See Id. ¶¶ 57, 167]. Dr. Wright treated Neary from March 16, 2015, until November 25, 2015, while he was housed at OCI. See Id. ¶¶ 169, 199.

         The second group is Johnny Wu, M.D. (“Dr. Wu”) and John Does 1-10 as they were employed by the UConn Health Center and served on the Utilization Review Committee (“URC”), the group that evaluates inmates' requests for off-site medical care. See [Dkt. 1 ¶¶ 5, 13].

         The last category is comprised of the individuals who were Wardens at the relevant CDOC facilities during the time Neary was housed: MWCI Warden Peter Murphy (“Murphy”), MWCI and OCI Warden Carol Chapdelaine (“Chapdelaine”), ECI Warden Walter Ford (“Ford”), CRCC Warden Antonio Santiago (“Santiago”), and WCCI Warden John Tarascio (“Tarascio”). All individuals are sued in their individual and official capacities.

         II. August 2013 to December 21, 2014: MWCI

         Neary began to experience pain in his nipples beginning August 2013. [Dkt. 83 ¶ 43]. Over the course of several months, small lumps in his breasts formed and continued to grow, and Neary experienced increasingly severe pain and tenderness in his breasts. Id. ¶¶ 44-48. On December 16, 2013, Neary felt a large lump in his left breast extending from his nipple to his armpit and the same day he submitted a request to the Medical Department at MWCI asking for a doctor appointment. Id. ¶¶ 49-52. Four days later, Neary went to sick call where a nurse examined him; in response she submitted a request for Neary to be examined by Dr. Naqvi. Id. ¶¶ 53-56.

         The next month on January 19, 2014, Dr. Naqvi examined Neary and determined that a mammogram would be medically necessary to evaluate whether the lumps were cancerous. Id. ¶¶ 57, 61, 65. Because the mammogram would have to be conducted at the UConn Health Center, Dr. Naqvi was required to and did submit a request for approval by the URC. Id. ¶ 62-64. The URC denied the mammogram request and instead approved a less expensive ultrasound. Id. ¶¶ 67-69. Neary was transported to UConn Health Center for an ultrasound on March 10, 2014. Id. ¶ 70. When he was there he notified the treating medical professionals that Dr. Naqvi requested a mammogram to evaluate whether the lumps were cancerous, and the medical professionals agreed that an ultrasound was insufficient to evaluate cancer; they performed a mammogram that day. Id. ¶¶ 70-75. Amish P. Patel, M.D. (“Dr. Patel”) and/or Alex Merkulov, M.D. (“Dr. Merkulov”) diagnosed Neary with non-cancerous “palpable/painful moderate to severe gynecomastia” and informed Neary of these results. Id. ¶¶ 77-78. They informed Neary that he would need laboratory testing to determine the cause of his gynecomastia and that the only total treatment was surgical removal, and on the same day Neary notified a nurse at sick call of the same. Id. ¶¶ 79-81.

         Seventeen days later on March 27, 2014, Dr. Naqvi requested a blood sample for laboratory testing and Neary submitted the sample on the same day. Id. ¶¶ 82-84. The results indicated Neary had a prolactin level of 20.26 ng/mL, nearly twice the high end of the normal range for males (2.64 to 13.13 ng/mL). Id. ¶¶ 86-87. Neary submitted requests for an appointment with Dr. Neary on April 7, 2014, and May 22, 2014, to discuss a treatment plan and the laboratory results. Id. ¶¶ 88-90. Naqvi did not respond to either request. Id. ¶¶ 89, 91. Neary then scheduled an appointment at a sick call and he met with Dr. Naqvi on June 8, 2014.

         On June 8, 2014, Dr. Naqvi informed Neary that the laboratory results did not reveal whether dietary soy or some other factor caused Plaintiff's gynecomastia. Id. ¶ 100. He did not provide Neary with a copy of his laboratory results. Id. ¶ 102. Dr. Naqvi submitted a request to the URC for Neary to meet with a surgeon. Id. ¶ 108. He also prescribed Neary Motrin 600mg to alleviate the pain, which Neary did not receive until June 13, 2014. Id. ¶¶ 110-11. Neary's prescription ended on June 25, 2014, and he did not receive additional pain medication until August 8, 2014. Id. ¶ 115.

         On June 12, 2014, the URC denied Dr. Naqvi's request for a surgical referral. Id. ¶ 116. Neary submitted a request to learn the URC determination on June 15, 2014, and a nurse informed him of the denial on June 18, 2014. Id. ¶ 118. Neary appealed the URC denial the following day by submitting a Medical Administrative Remedy Form (“First MAR Form”). Id. ¶ 119. He thereafter made a request to meet with Dr. Naqvi to discuss the denial, and he received an appointment for July 20, 2014. Id. ¶ 121. During this examination, Dr. Naqvi told Neary he would make a second request to meet with a surgeon. Id. ¶ 126. For the interim and upon Neary's request, Dr. Naqvi prescribed Neary stronger pain medication: Tylenol 650 mg. Id. ¶ 129. On the same day, Neary submitted a request for the status of his appeal, the First MAR Form. Id. ¶ 135.

         Neary had not received his pain medication on July 28, 2014, which prompted him to file a request and accordingly he obtained his medication on August 8, 2014. Id. ¶¶ 131-32. This medication did not alleviate the pain. Id. ¶ 130. The same day he made the medication request, he also filed a request to be notified of the status of Dr. Naqvi's renewed request for URC to approve of Neary meeting with a surgeon. Id. ¶ 136.

         Neary filed several requests, grievances, and appeals in the month of August 2014. He filed a Second MAR Form on August 5, 2014 regarding the status of the First MAR Form. Id. ¶ 137. Dr. Naqvi notified Neary on August 10, 2014, that the URC had denied his renewed request. Id. ¶ 138. When prompted, Neary refused to sign the denial. Id. ¶ 140. Neary also filed a Level 2 Grievance Appeal Form on August 15, 2014, appealing the denial of both MAR Forms. Id. ¶¶ 144. On August 18, 2014, Neary requested a copy of the URC denial but he never receive one. Id. ¶¶ 141-43. Then on August 22, 2014, Neary submitted a request regarding the status of his Level 2 Grievance Form. Id. ¶ 145. This same day he filed a request for appointment with Dr. Naqvi because the Tylenol 650 mg did not alleviate his pain, but he did not receive a response. Finally, on August 26, 2014, Neary filed a request for Dr. Wu to provide a treatment plan for gynecomastia, but he did not receive a response. Id. ¶ 150.

         The month of September was nearly as busy. Neary was informed that a Level 2 Grievance Appeal Form was the incorrect form, so he filed an Appeal of Health Services Review Form on September 8, 2014. Id. ¶¶ 146-47. On September 19, 2014, Neary filed a second request for Dr. Wu to provide a treatment plan, to which he never received a response. Id. ¶ 152-53. He also filed a request to be seen by Dr. Naqvi on this day due to his pain and the fact that his Tylenol 650 mg prescription was set to expire on September 20. Id. ¶ 155. Neary filed a second request to see Dr. Naqvi for the same reasons on September 30, 2014, because he did not previously receive a response. Id. ¶ 157.

         On October 7, 2014, Neary went to sick call for his gynecomastia pain, and the nurse put him on a list to meet with Dr. Naqvi. Id. ¶¶ 158-59. Dr. Naqvi did not examine him until December 21, 2014, wherein he renewed the medication about which Neary complained. See Id. ¶ 163. Neary was transferred to OCI on December 22, 2014. Id. ¶ 167.

         III. December 22, 2014 to November 24, 2015: OCI

         Neary did not receive pain medication until January 12, 2015, but even when he began treatment once again his pain was not alleviated. Id. ¶¶ 164-66. His pain continued for several months and in March 2015 Neary submitted a request for an appointment with a physician. Id. ¶ 168. Dr. Wright examined Neary on March 16, 2015, and Neary explained the progression of his gynecomastia. Id. ¶¶ 169-70. Dr. Wright prescribed him a soy-free diet and Tylenol #3 to alleviate the pain. Id. ¶¶ 173, 178.

         The lumps in Neary's breasts stopped increasing in size during the time he ate a soy-free diet. Id. ¶ 175. However, Tylenol #3 did not fully alleviate his pain. Id. ¶ 180. On July 27, 2015, Dr. Wright changed his prescription to Dolobid 500 mg. Id. ¶ 184. Because this too did not alleviate his pain, Dr. Wright prescribed a Fentanyl patch to be changed every third day at sick call. Id. ¶ 187. “The fentanyl transdermal system (patch) is used for the management of persistent, moderate to severe chronic pain in opioid-tolerant patients when a continuous, around-the-clock opioid analgesic is needed for an extended period of time.” U.S. Dep't of Health and Human Servs., U.S. Food & Drug Administration, Fentanyl Transdermal System (marketed as Duragesic) Information, available at https://www.fda.gov/Drugs/DrugSafety/ucm114961.htm. Neary took this narcotic as prescribed, but it caused constipation and his pain did not fully subside. Id. ¶ 190-92.

         On November 5, 2015, Dr. Wright discontinued the Fentanyl patch and a nurse removed it, which instilled three days of “severe symptoms of narcotics withdrawal including, nausea, dizziness, vomiting, loss of appetite, aches, chills, restlessness, and severe muscle spasms in his arms and legs, in addition to the already present severe pain in his breasts areas.” Id. ¶ 196. Neary did not receive any pain medication after the removal of the patch. See Id. ¶ 211. CDOC transferred Neary on November 25, 2015. Id. ¶ 199.

         IV. November 25, 2015 to November 29, 2015: ECI

         ECI failed to follow Dr. Wright's prescription and did not give Neary a soy-free diet or pain medication. Id. ¶¶ 200, 211.

         V. November 30, 2015 to December 21, 2015: CRCC

         CCRC also failed to follow Dr. Wright's prescription and did not give Neary a soy-free diet. Id. ¶ 203. On December 3, 2015, Neary submitted a request to the Medical Department due to his gynecomastia pain and his prescription for a soy-free diet. Id. ¶ 204. Dr. [FNU] Urscilla, M.D. (“Dr. Urscilla”) explained that Dr. Wu removed the soy-free diet from Neary's regimen. Id. ¶ 207. Dr. Urscilla also did not prescribe Neary pain medication. Id. ¶ 210. Neary suffered anxiety and emotional distress on account of his removal from a soy-free diet, and he has refused to eat regular meals provided by CDOC. Id. ¶¶ 208-09. Neary did not receive pain medication during this time. Id. ¶ 211.

         VI. December 22, 2015 to September 2016: WCCI

         Shortly after Neary's arrival at WCCI, Dr. [FNU] Clements, M.D. (“Dr. Clements”) conducted an intake examination on December 25, 2015, and Neary explained his history of gynecomastia and associated pain. Id. ¶ 212. Dr. Clement prescribed Neary Tylenol 650 mg, which he did not receive until December 31, 2015. Id. ¶¶ 214-15. Dr. Clement also notified Neary that he could request a soy-free diet, but Dr. Wu and the URC would have to approve of such a request. Id. ¶ 219. Around May 10, 2016, [2] Dr. Clement submitted a request, but he was transferred to a different building within WCCI on May 19 prior to approval or denial. See Id. ¶¶ 220-21.

         LEGAL ...


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