United States District Court, D. Connecticut
JAMES A. HARNAGE, Plaintiff,
DR. WU, et al., Defendants.
RULING ON RENEWED MOTION TO DISMISS [ECF NO.
W. Thompson, United States District Judge
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.
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.
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.
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.
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).
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.
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
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.
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.
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