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Harnage v. Wu

United States District Court, D. Connecticut

April 9, 2018

JAMES A. HARNAGE, Plaintiff,
v.
DR. WU, et al., Defendants.

          RULING ON RENEWED MOTION TO DISMISS [ECF NO. 63]

          Alvin W. Thompson, United States District Judge

         The plaintiff, James A. Harnage, commenced this civil rights action pro se against 42 defendants. On September 1, 2016, the court issued an Initial Review Order finding that the complaint did not comply with Federal Rules of Civil Procedure 8 and 20, and ordering the plaintiff to file an amended complaint that complied with those rules. ECF No. 8. The plaintiff filed an amended complaint. On September 16, 2016, the court issued a second Initial Review Order finding that the amended complaint failed to comply with the prior order and affording the plaintiff one last chance to file an amended complaint in compliance with the rules. ECF No. 10.

         On November 15, 2016, the plaintiff filed a second amended complaint including only Dr. Wu and Nurse Vecchairelli as defendants and asserting a claim for deliberate indifference to a serious medical need. ECF No. 13. The court ordered that the second amended complaint be served on defendants Wu and Vecchairelli. ECF No. 15. Both defendants filed motions to dismiss. On September 5, 2017, the court granted defendant Wu's motion but denied defendant Vecchairelli's motion. ECF No. 43.

         Defendant Vecchairelli has filed a renewed motion to dismiss asking the court to dismiss this case under 28 U.S.C. § 1915(e)(2)(B)(ii) in light of admissions by the plaintiff evidenced in filings by him in this case. For the reasons that follow, defendant Vecchairelli's motion is granted.

         I. LEGAL STANDARD

         To withstand a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to a presumption of truth. Id.

         When reviewing a motion to dismiss, the court must draw all reasonable inferences in the non-movant's favor. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012). In conducting its review, the court may consider the facts alleged in the complaint, documents attached to the complaint or incorporated into the complaint by reference, and matters subject to judicial notice. New York Pet Welfare Ass'n, Inc. v. City of New York, 850 F.3d 79, 86 (2d Cir. 2017).

         II. FACTUAL ALLEGATIONS

         The plaintiff has been diagnosed as a diabetic and was prescribed insulin twice a day to control his blood sugar levels. He received the insulin by injection at “Diabetic Call.” The plaintiff would proceed to the designated area and wait in line with other inmates for his injection.

         On the evening of May 27, 2013, defendant Vecchairelli was administering the insulin injections. The syringes are designed so the needle fully retracts once the plunger has been pushed to the maximum position. When Vecchairelli injected the inmate who was in front of the plaintiff in line, she stopped the plunger short. She then inserted the needle into the insulin bottle to draw another dose. The inmate in front of the plaintiff was infected with Hepatitis C.

         The plaintiff asked defendant Vecchairelli if she was aware that she was contaminating the insulin vial. She disregarded his warning. The plaintiff reported the incident to the custody supervisor and submitted an emergency medical request.

         The plaintiff states, however, that he was not injected with insulin from the contaminated vial. He received a different type of insulin than the inmate in front of him in line. The medical department monitored the diabetic inmates, including the plaintiff, for contamination.

         III. DISCUSSION

         The defendants move to dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), which requires the court to “dismiss the case at any time” if the court determines that the action “fails to state a claim on which relief may be granted.” In denying defendant Vecchairelli's first motion to dismiss, the court drew an inference that the plaintiff had been injected with insulin drawn from a contaminated vial. ECF No. 43 at 6. After the motion was denied, the plaintiff appended to two motions a copy of his interview with a correctional officer regarding the incident. See ECF Nos. 47-1, 48-1. In the interview, the plaintiff states that he received a type of insulin that is different ...


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