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Michalski v. Ruiz

United States District Court, D. Connecticut

June 12, 2018

MARCO A. MICHALSKI, Plaintiff,
v.
RICARDO RUIZ and SAMUEL BURKOWITZ, Defendants.

          INITIAL REVIEW ORDER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Marco 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.

         For the reasons that follow, the Complaint will be DISMISSED in part and the motions are DENIED.

         I. 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.

         A. Factual Allegations

         Mr. 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.

         In 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. ¶¶ 9-10.

         In 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.

         At 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.

         In 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.

         Mr. 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.

         On 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.

         In 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

         The 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.

         Because 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 ...


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