Vines v. Pharmaceuticals

          RULING ON MOTIONS TO DISMISS

          MICHAEL P. SHEA, U.S.D. JUDGE

         Pro se plaintiff Edward Vines (“Vines”) is a former inmate in the Connecticut correctional system who was allegedly prescribed the drug Risperdal for off-label uses between September 24, 2002, and March 25, 2003. Vines sues the manufacturer, defendants Janssen Pharmaceuticals and Johnson and Johnson, as well as his primary psychiatric prescriber, Dr. Ronald Hensley, and Hensley's employer, UConn Correctional Managed Healthcare, alleging that they violated his rights under the Eighth and Fourteenth Amendments of the U.S. Constitution and Article First, Section 10, of the Connecticut Constitution. Vines' second amended complaint (“SAC”) alleges that the defendants participated in a scheme to promote Risperdal for off-label use and to provide kickbacks to physicians who prescribed it. (ECF No. 18.) All defendants now move to dismiss the SAC under Rules 12(b)(1) and 12(b)(6). (ECF Nos. 61, 63, 77, 80.) For the reasons that follow, I GRANT the motions to dismiss.

         I. Relevant Background

         A. Vines' Allegations

         Vines is pro se and a former inmate who was incarcerated within the Connecticut Department of Correction when he filed the SAC.^[1] The SAC makes the following allegations.

         Between March 3, 2002 and December 31, 2003, Janssen Pharmaceuticals, a subsidiary of Johnson and Johnson (collectively, “Janssen”), introduced the antipsychotic drug Risperdal “into interstate commerce.” (SAC at ¶ 12.) Janssen issued a policy to its sales representatives to promote Risperdal to physicians to prescribe Risperdal for off-label treatment of symptoms including anxiety, agitation, depression, hostility, and confusion, while knowingly downplaying the drug's risks. (SAC at ¶ 13.) Janssen also incentivized this practice by basing its sales representatives' bonuses on total Risperdal sales, not just those for FDA-approved use. (SAC at ¶ 14.) The SAC also alleges that Janssen caused false claims to submitted to federal health care programs by promoting Risperdal for off-label uses that those programs did not cover, making false statements about the safety and efficacy of the drug, and paying kickbacks to physicians to prescribe Risperdal. (SAC at ¶ 15.)

         On September 24, 2002, while Vines was confined at Northern Correctional Institution (SAC at ¶ 17), he was prescribed Risperdal by his primary psychiatric prescriber, Dr. Ronald Hensley (“Hensley”). (SAC at ¶¶ 9, 11.) Hensley was employed by UConn Correctional Managed Healthcare (“UCMH”), which was under contract to provide mental health and medical treatment to Connecticut state prisoners. (SAC at ¶ 10.) UCMH, “persuaded by the incentive from receiving kickbacks from [Janssen], ” issued a policy to its employees “urging them to use Risperdal for off-label treatments with Connecticut state prisoners.” (SAC at ¶ 16.) Hensley prescribed Risperdal to Vines to treat symptoms of anxiety, agitation, depression, hostility, and confusion. (SAC at ¶ 11.) Hensley did not inform Vines that he was prescribing Risperdal for off-label use or tell him about the severe side effects of the medication. (Id.)

         Starting in November 2002, Vines began complaining of severe dizziness, restlessness, and tremors. (SAC at ¶ 17.) On March 25, 2003, Hensley discontinued Vines' prescription of Risperdal. (SAC at ¶ 19.) Vines had stopped taking Risperdal some time before March 25, 2003, and after complaining of breast pain, severe dizziness, restlessness, and tremors. (SAC at ¶ 19.)

         Vines continued to complain of the same symptoms to UCMH staff throughout 2005 and 2007, when Vines was housed at McDougall and Corrigan Correctional Institutions. (SAC at ¶¶ 20-22.) Vines' symptoms went untreated until 2014, when Vines was diagnosed with Vertigo, anxiety, ADHD, at Cheshire Correctional Institution. (SAC at ¶¶ 23-24.) In 2015, UCMH staff at Osborn Correctional Institution diagnosed Vines with PTSD; and in 2016, UCMH staff at Osborn diagnosed certain additional neurological symptoms in Vines' shoulders, arms, and legs as neuropathy and sciatica. (SAC at ¶¶ 24-25.)

         On October 22, 2014, the Department of Justice issued a press release stating that Janssen had pled guilty to misbranding Risperdal, making false statements about the safety and efficacy of the drug, and promoting it to health care providers for off-label treatment. (SAC at ¶¶ 7, 27.) Vines alleges that he was not aware of the harmful side effects of Risperdal prior to this release. (SAC at ¶ 7.)

         Vines now sues UCMH, Dr. Hensley (in both his official and individual capacity), and Janssen for violation of 42 U.S.C. §§ 1983, 1988, the Eighth and Fourteenth Amendments, and Article First, Section 10, of the Connecticut Constitution. (ECF No. 18.)^[2] He seeks compensatory and punitive damages and a declaratory judgment “that the Defendant[s'] actions described herein are unlawful and violate the Plaintiff's civil rights.” (SAC at 7.)

         B. Procedural History

         The procedural history of this case warrants brief discussion. After Vines first filed suit on February 29, 2016, the Court dismissed his complaint without prejudice in a March 8, 2016 initial review order as untimely for failure to comply with § 1983's three-year statute of limitations or plead facts sufficient to show that equitable tolling applied. (ECF No. 7.) Vines then filed an amended complaint, which this Court again dismissed as time-barred. (ECF Nos. 8, 9.) In particular, Vines' amended complaint identified a 2006 study and 2008 Wall Street Journal article explaining the risks of taking Risperdal for off-label use, two 2012 lawsuits against Janssen concerning the risks of Risperdal, and the 2014 Department of Justice press release described above. (ECF No. 9 at 2-3.) I found that although Vines had alleged that the defendants concealed Risperdal's possible side effects, Vines had not alleged that the defendants concealed the existence of these news reports and lawsuits, which put him on notice of his claims. (ECF No. 9 at 4-5.) I thus concluded that § 1983's three-year statute of limitations was not equitably tolled and so his claims were time-barred. (ECF No. 9 at 5-6.)

         Vines appealed this Court's second initial review order (ECF No. 11), and on September 1, 2016, the Second Circuit vacated and remanded, directing the Court to consider whether the continuing violation doctrine applied. (ECF No. 13.) I therefore considered whether Vines' amended complaint alleged a claim falling within the doctrine, and concluded in a November 21, 2016 order that it did not:

In accordance with the Second Circuit's order of remand (ECF No. 13), this Court has considered whether the operative complaint alleges a claim falling within the continuing violation doctrine. It does not. . . .To do so, “plaintiff must allege both the existence of an ongoing policy of deliberate indifference to his or her serious medical needs and some non-time-barred acts taken in the furtherance of that policy.[”] Shomo v. City of N.Y., 579 F.3d 176, 182 (2d Cir. 2009) (internal quotation marks and citations omitted). The operative complaint does not allege any ongoing policy of deliberate indifference to the plaintiff's medical needs by any defendant and it does not allege non-time-barred acts taken in furtherance of any such policy by any defendant. The complaint alleges that some of his symptoms that were in fact side effects of Risperdal were not diagnosed until “on or after October 22, 2014.” (ECF No. 8 at 5.) The complaint does not specify who diagnosed the symptoms, whether the health care provider who diagnosed the symptoms had any awareness of a connection to Risperdal, and how any such conduct was related to any “policy” of deliberate indifference stretching back to the time when plaintiff was prescribed Risperdal by Defendant Hensley. Indeed, the complaint pleads no facts suggesting that Defendant Hensley had any involvement in the plaintiff's treatment after 2003. The complaint also alleges that plaintiff was unaware of the harm because of “false and misleading statements by the defendant(s) who knowingly downplayed risk concerns of the drug Risperdal.” (Id. at 4.) This does not allege that it was Defendant Hensley who made these statements, whether the statements were made within the non-time-barred period, and whether the statements were made in furtherance of a policy of deliberate indifference.

(ECF No. 16.) Nonetheless, I allowed Vines to file a second amended complaint that pleaded facts to bring his claim within the scope of the doctrine. (Id.) Vines then filed the Second Amended Complaint, which is the operative complaint, on December 1, 2016. (ECF No. 18.) Following numerous issues with service, the SAC was successfully served through counsel the Court specially appointed for this purpose. In June 2018, both UCMH and Dr. Hensley in his official capacity moved to dismiss the SAC. (ECF Nos. 61, 63.) On June 21, 2018, the Court terminated Vines' appointed counsel and ordered Vines to show cause why UCMH and Dr. Hensley's motions should not be granted on the grounds that they are immune from suit under the Eleventh Amendment. (ECF No. 72.) Vines failed to respond to the Court's June 21, 2018 order. In an abundance of caution, on July 12, 2018, the Court issued another text order requiring Vines to enter a pro se appearance, again ordering Vines to show cause why his claims against UCMH and Dr. Hensley in his official capacity should not be dismissed as barred by Eleventh Amendment immunity, and directing the Clerk's Office to mail a copy of the motions to dismiss, the June 21, 2016 order, a pro se appearance form, and the order itself to Vines at his address on file. ...