United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART MOTION TO DISMISS [DKT. 89]
Vanessa L. Bryant United States District Judge.
Christopher Neary (“Neary”), is a paroled former
inmate who developed gynecomastia 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.
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.
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.
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.
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].
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.
August 2013 to December 21, 2014: MWCI
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.
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.
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.
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.
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.
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.
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.
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.
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.
December 22, 2014 to November 24, 2015: OCI
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.
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
took this narcotic as prescribed, but it caused constipation
and his pain did not fully subside. Id. ¶
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.
November 25, 2015 to November 29, 2015: ECI
failed to follow Dr. Wright's prescription and did not
give Neary a soy-free diet or pain medication. Id.
¶¶ 200, 211.
November 30, 2015 to December 21, 2015: CRCC
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.
December 22, 2015 to September 2016: WCCI
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,  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. ¶¶