United States District Court, D. Connecticut
MARCO A. MICHALSKI, Plaintiff,
RICARDO RUIZ and SAMUEL BURKOWITZ, Defendants.
INITIAL REVIEW ORDER
A. BOLDEN UNITED STATES DISTRICT JUDGE
Michalski (“Plaintiff”), incarcerated at the
Osborn Correctional Institution and proceeding pro
se, filed a civil Complaint under 42 U.S.C. § 1983,
alleging that Drs. Ricardo Ruiz and Samuel Berkowitz
(collectively “Defendants”) failed to provide him
with medical treatment in violation of his rights under the
Eighth Amendment to the U.S. Constitution. Mr. Michalski has
also moved for service and filed two motions seeking review.
reasons that follow, the Complaint will be
DISMISSED in part and the motions are
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Mr. Michalski describes Dr. Ruiz as a physician stationed at
Cheshire Correctional Institution and Dr. Berkowitz as a
podiatrist employed by the University of Connecticut Health
Center. Mr. Michalski alleges that he suffers from serious
medical needs and Defendants were deliberately indifferent to
those needs from September 2016 to September 2017.
Michalski alleges having been born with two clubfeet.
See Compl. ¶ 5ECF No. 1. As a result of this
condition, Mr. Michalski claims that he developed severe
pronation of both feet. Id. In 2000, his
“arches dropped” and he has been flat-footed ever
since. Id. ¶ 6. This condition has allegedly
caused him pain and discomfort. Id. A physician
allegedly prescribed arch supports and strengthening and
conditioning exercises. Id. ¶ 7. Mr. Michalski
maintains that this treatment did not alleviate the pain
caused by the condition. Id. ¶¶ 8, 12.
2001, a physician allegedly diagnosed Mr. Michalski as
suffering from “significant pronation deformity”
and indicated that the condition might require “tendon
transfers and fusions.” Id. ¶¶ 8-9.
The Complaint alleges that Mr. Michalski did not undergo any
surgical procedures to treat his condition. See Id.
2002, a physician allegedly prescribed steroid injections and
casting of Mr. Michalski's ankles. Id. ¶
10. This treatment as well as good quality footwear and
physical therapy allegedly proved to be effective in treating
the pain and seized tendons caused by Mr. Michalski's
condition. Id. ¶ 11. Mr. Michalski continued to
wear and purchase good quality footwear every month until his
incarceration in April 2013. Id. ¶13.
Cheshire Correctional Institution (“Cheshire”),
Mr. Michalski alleges he could only purchase one pair of low
quality footwear every six months. Id. ¶ 14.
The footwear allegedly had no arch support and the soles wore
down quickly. Id. ¶ 15. During his confinement,
Mr. Michalski asserts that he jumped on and off of high bunk
beds and engaged in high impact exercise on concrete floors.
Id. ¶ 16.
September 2016, Mr. Michalski maintains that his feet started
to hurt and feel “very tight.” Id.
¶ 18. In response to Mr. Michalski's complaints of
foot pain, a medical staff member allegedly examined him and
scheduled him to see a physician. Id. ¶ 19. A
few weeks later, a medical staff member allegedly informed
Mr. Michalski that he was scheduled to see Dr. Ruiz at the
end of November 2016. Id. ¶ 20. On an
unidentified day before the end of November 2016, the
Complaint asserts that Mr. Michalski's feet became
swollen and he could not walk. Id. ¶ 22. He
allegedly submitted a request to be seen in the medical
department and was not see by Dr. Ruiz at the end of
November. Id. ¶¶ 22-23.
Michalski allegedly submitted several requests to be seen in
the medical department. Id. On December 16, 2016, a
nurse allegedly examined Mr. Michalski and indicated that he
had an appointment scheduled with Dr. Ruiz at some point
before Christmas. Id. Dr. Ruiz allegedly did not
examine Mr. Michalski before Christmas. Mr. Michalski asserts
that on January 2, 2017, Mr. Michalski submitted a request
seeking an appointment with Dr. Ruiz because he was suffering
from severe foot pain. See Id. ¶ 24.
January 19, 2017, Dr. Ruiz allegedly met with Mr. Michalski
to discuss blood test results. Id. ¶ 26. The
Complaint maintains that Dr. Ruiz would not listen to Mr.
Michalsk's complaints of pain, engage in an examination
of Mr. Michalski's feet, or offer any assessment of or
treatment for his painful conditions. Id.
¶¶ 26-27. Dr. Ruiz allegedly did mention that
he would try to get Mr. Michalski arch supports. Id.
¶ 26. Mr. Michalski alleges that Dr. Ruiz took no steps
to obtain arch supports for Mr. Michalski. Id.
February 2017, Mr. Michalski allegedly submitted a health
services request for treatment for the severe pain in his
feet. Id. ¶ 29. On March 1, 2017, Mr. Michalski
allegedly met with Dr. Ruiz and explained the history of his
foot conditions. Id. ¶ 30. Dr. Ruiz allegedly
submitted a request for shoe inserts to the Utilization
Review Committee (“URC”). Id
Complaint alleges that, at the time Mr. Michalski was
measured for the shoe inserts, Dr. Ruiz indicated that Mr.
Michalski's foot size was 13 ½ and that he should
be wearing a size 15 shoe to accommodate the inserts.
Id. ¶ 31. Although Mr. Michalski allegedly
explained that he had worn a size 12 shoe all is life, Dr.
Ruiz allegedly instructed him to buy a size 15 shoe from the
commissary and ordered size 15 inserts for Mr. Michalski.
Id. Allegedly, Mr. Michalski received his size 15
shoe inserts on March 23, 2017. Id. ¶ 32.
the size 15 inserts were allegedly too large for Mr.
Michalski's size 12 shoes, he allegedly asked a medical
staff member to cut the inserts to fit his size 12 shoes.
Id. ¶ 32. On March 24, 2017, a medical staff
member allegedly summoned Mr. Michalski to the medical
department to have his inserts cut to fit his size 12 shoes.
Id. ¶ 33. Dr. Ruiz was allegedly present in the
medical department and allegedly continued to insist that Mr.
Michalski buy size 15 shoes to fit the inserts. Id.
Mr. Michalski allegedly explained that if the shoes did not
fit snuggly around his feet, the inserts ...