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Milner v. Mulligan

United States District Court, D. Connecticut

October 17, 2017

SHAWN MILNER, Plaintiff,
v.
WILLIAM MULLIGAN, Defendant.

          INITIAL REVIEW ORDER

          STEFAN R. UNDERHILL, JUDGE

         Shawn Milner (“Milner”), currently confined at Northern Correctional Institution in Somers, Connecticut, filed an amended complaint pro se under 42 U.S.C. § 1983 alleging that he was denied adequate medical care. The named defendants are Northern Correctional Institution (“Northern”), William Mulligan (“Mulligan”), Captain Jason Cahill (“Cahill”), Lieutenant David Josefiak (“Josefiak”), Lieutenant Sean Guimond (“Guimond”), Officer Alex Collins (“Collins”), Officer Bogan (“Bogan”), Officer Sanchez (“Sanchez”), Nurse Kristen Carabine (“Carabine”), the City of Somers and Tolland County.

         Under 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 Atl. Corp. 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).

         I. Allegations

         Milner is a pretrial detainee. He suffers from a seizure disorder. Milner was housed in the first phase of the administrative segregation program at Northern at the time of the incident. Although all other inmates in that phase of the administrative segregation program are single-celled, Milner was provided a cellmate because of his seizure disorder.

         On July 21, 2016, at 9:40 a.m., Milner began experiencing a metallic taste, dizziness and blurred vision. All three symptoms are preliminary indicators of a seizure. Milner pressed the emergency call button in his cell to obtain medical assistance. Milner told Bogan, the main control officer, about the seizure indicators. Approximately five minutes later, Milner's cellmate again pressed the emergency call button. The second call was ignored.

         Milner tried to abate the symptoms by splashing water on his face. Milner's cellmate asked other inmates to press the emergency call button in their cells because Bogan did not respond to the cellmate's attempts to get medical assistance for Milner. These calls were ignored.

         At 9:49 a.m., property officer Melendez entered the tier. Milner's cellmate yelled that Milner had fallen and nearly hit his head on the bunk. Officer Melendez went to the cell and saw Milner on the floor experiencing a seizure. Defendants Bogan, Collins and Sanchez did not tour the unit at any time while Milner was experiencing a seizure. Department of Correction policy requires that unit tours be conducted every fifteen minutes.

         Officer Melendez called a code white, a medical emergency code. Although she was aware of Milner's condition, Carabine casually walked into the unit in response to the code. She did not run as she should have in response to a medical emergency code.

         At approximately 10:30 a.m., Josefiak and Guimond came to the housing unit to conduct an informal investigation. They questioned Milner's cellmate regarding the incident. Josefiak and Guimond ignored the cellmate's statements and prepared reports to cover up the lack of unit tours and failure to respond to emergency calls. Despite the lack of confirmation in the medical records, Mulligan approved the report entry that Bogan had contacted the medical unit three minutes before the code was called. Cahill, the shift captain, participated in the cover-up by stating that all policies were followed.

         During the seizure, Milner's head repeatedly hit the floor, causing a laceration near his eye. Milner was sent to an outside hospital for treatment.

         II. Analysis

         In his original complaint, Milner states that he was only bringing an Eighth Amendment claim for deliberate indifference to serious medical needs. In the introduction to the amended complaint, he seeks to add Americans with Disabilities Act and equal protection claims. Milner lists five causes of action in the amended complaint: deliberate indifference to a serious medical need, failure to protect, failure to supervise, falsely reporting the incident, and ADA violations.

         A. Northern Correctional Institution

         Milner includes Northern as a defendant. The Department of Correction, a state agency, is not a person within the meaning of section 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989); Angileri v. Wu, 2016 WL 3579073, at *3 (D. Conn. June 28, 2016) (as a state agency, Department of Correction is not a person within the meaning of section 1983). As a unit of the Department of Correction, Northern also is not a person within the meaning of section 1983. See Santos v. Connecticut Dep't of Corr., 2005 WL 2123543, at *3 (D. Conn. Aug, 19, 2005) (observing that “neither a Department of Correction nor a correctional institution is a ‘person'” subject to liability under section 1983). Accordingly, all section 1983 claims against Northern are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

         B. Town of Somers and Tolland County

         Milner names the Town of Somers and Tolland County as defendants because Northern is located in that town and county. He states in his description of parties that those towns are responsible for ensuring that Northern is ADA-compliant. Milner provides no authority for his assumption that the municipality or county has authority to direct the actions of state officials in a state correctional facility and research reveals none. Further, I determine below that Milner fails to state a cognizable ADA claim, because there is no ...


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