United States District Court, D. Connecticut
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. ...