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Perry v. Furey

United States District Court, D. Connecticut

November 7, 2018

DASHAWN PERRY, Plaintiff,
v.
RICHARD FUREY, et al. Defendants.

          INITIAL REVIEW ORDER

          Kari A. Dooley United States District Judge

         On October 15, 2018, the plaintiff, Dashawn Perry, an inmate currently confined at the Osborn Correctional Institution (“Osborn”) in Somers, Connecticut, brought a civil action pro se under 42 U.S.C. § 1983 against five state Department of Correction (“DOC”) officials in their individual and official capacities: Health Services Administrator Richard Furey, Dr. Gary Robert Freston, Dr. Wright, Correction Officer Ayala, and Warden Gary Wright. (ECF 1). Although not explicitly stated, the plaintiff appears to be suing the defendants for acting with deliberate indifference to his serious medical needs, in violation of his Eighth Amendment protection against cruel and unusual punishment. He requests damages and injunctive relief in the form of specialized medical care. Id. at 6. On November 5, 2018, Magistrate Judge William I. Garfinkel granted the plaintiff's motion to proceed in forma pauperis. See Order No. 8.

         Standard of Review

         Under 28 U.S.C. § 1915A, the Court must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         Allegations

         On January 6, 2018, the plaintiff sustained a very painful injury to his left ankle while playing basketball during outside recreation at Osborn. Compl. ¶ 1. He immediately went to the medical unit at Osborn seeking treatment. Id. at ¶¶ 1-2. There, he was evaluated by nursing staff who refused to divulge their names to the plaintiff. Id. at ¶ 2. The plaintiff requested medication to alleviate the pain he was experiencing along with an x-ray, an appointment with a physician, and a bottom-bunk pass, but the nursing staff denied his requests. Id. at ¶¶ 2-3.

         The plaintiff returned to his housing unit and wrote a request to Administrator Furey, but Furey did not reply. Compl. ¶ 3. Several days later, the plaintiff saw Furey in one of the hallways at Osborn, told him about his painful condition, and asked him about his failure to respond to the request he had written to him. Id. Furey responded, “Too bad, you should [not] have . . . come to prison, ” and then walked away. Id.

         The plaintiff continued to write requests to correction officers, counselors, and medical personnel about his condition, but none of them responded. Compl. ¶ 4. After waiting nearly a month for treatment, the plaintiff was called to the medical unit and evaluated by Dr. Freston. Id. at ¶ 5. Freston “did nothing” for the plaintiff's pain, but he ordered an x-ray and consultation at the UConn Health Center. Id. Meanwhile, the plaintiff was forced to climb up and down his bunk with the painful ankle injury. Id.

         While at the UConn Health Center, a physician provided the plaintiff with a treatment plan, but Dr. Freston and Administrator Furey failed to ensure that the treatment plan was followed by medical staff at Osborn. Compl. ¶ 6. The plaintiff wrote another formal request to Furey on February 26, 2018. Id. at ¶ 7. Furey responded on March 13, stating that the plaintiff had a medical appointment scheduled with Dr. Wright. Id. However, Dr. Wright told the plaintiff that he had to submit a formal request before any evaluation. Id. The plaintiff complied, but he never received an appointment with Dr. Wright or even a reply to the formal request. Id. Several months later, Furey finally responded to one of the plaintiff's requests, stating that the plaintiff had an appointment scheduled in one week to be evaluated by Dr. Wright. Id. at ¶ 8.

         On April 11, 2018, the plaintiff was called to the medical unit for an appointment with Dr. Wright. Compl. ¶ 9. While he was waiting in the medical unit holding area, another inmate asked the plaintiff if he could take his vital signs, but the plaintiff refused, stating that he was there to see Dr. Wright and that his vital signs were confidential. Id. The inmate insisted that he wanted to take the plaintiff's vital signs, but the plaintiff adamantly refused. Id. Correction Officer Ayala then interfered and told the plaintiff that, if he did not let the inmate take his vital signs, he would write him a disciplinary report. Id. The plaintiff still refused, and Ayala then sent him back to his housing unit. Id. The plaintiff was unable to see Dr. Wright. Id. at ¶ 10.

         The plaintiff filed a formal complaint to Warden Wright explaining that Ayala had refused to allow him to see the medical doctor at Osborn, but Warden Wright did not respond. Compl. ¶ 10. The plaintiff then followed up an administrative remedy/grievance, which Warden Wright rejected on the ground that the plaintiff never filed an inmate request form. Id. The plaintiff did, however, file a request for submitting his grievance. Id. The plaintiff later spoke with Warden Wright as he toured his housing unit. Id. Wright told him, “Nothing goes up the chain of command without [my] approval.” Id. The plaintiff told Wright that he believed Wright was obstructing the administrative remedy process, to which Wright replied, “Sue me, I don't care.” Id.

         Discussion

         The plaintiff brings this §1983 action claiming that all defendants acted with deliberate indifference to his serious medical needs. Deliberate indifference to a prisoner's serious medical needs constitutes cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To prevail on a claim for deliberate indifference to a serious medical need, the plaintiff must show both that his need was serious and that defendants acted with a sufficiently culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle, 429 U.S. at 105).

         Construing the allegations and the inferences that could be drawn therefrom, liberally, the plaintiff has stated a plausible Eighth Amendment claim against the defendants for refusing medical treatment, delaying medical treatment, and/or interfering with his ability to obtain medical treatment for his allegedly painful injury. Thus, the Eighth Amendment claim may proceed against the ...


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