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Pierce v. Semple

United States District Court, D. Connecticut

November 26, 2018

ANDREW PIERCE, Plaintiff,
v.
SCOTT SEMPLE, et al. Defendants.

          INITIAL REVIEW ORDER

          Kari A. Dooley United States District Judge

         On November 13, 2018, the plaintiff, Andrew Pierce, an inmate currently confined at the MacDougall-Walker Correctional Institution (“MWCI”) in Suffield, Connecticut, brought a civil action pro se against Commissioner of the Department of Correction (“DOC”) Scott Semple, DOC Program Director Colleen Gallagher, MWCI Warden William Mulligan, and Dr. Omprakash Pillai. Compl. (Doc. No. 1). The plaintiff is suing all four defendants in their individual and official capacities for violating his rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., the Rehabilitation Act, and the Eighth Amendment to the United States Constitution pursuant to 42 U.S.C. §1983, Article First, § 20 of the Connecticut Constitution, [1] and Connecticut General Statutes §§§ 46a-71, 46a-75, and 46a-77. Id. at 1, 5. He seeks monetary, injunctive, and declaratory relief. Id. at 20. On November 16, 2018, Magistrate Judge William I. Garfinkel granted the plaintiff's motion to proceed in forma pauperis. See Order No. 6. For the following reasons, the complaint is dismissed in part.

         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

         The plaintiff suffers from renal failure which requires him to undergo dialysis treatment three times per week. Compl. ¶ 30. In 2008, the DOC decided that all prisoners in need of dialysis treatment would be housed in MWCI because it would reduce the need for transportation. Id. at ¶ 37. The DOC cited this policy change as a “cost saving measure.” Id. at ¶ 38.

         In 2015, the plaintiff was designated as a level-three prisoner, but has since progressed to a level-one prisoner, indicating a prisoner with the least need for restrictive housing. See Compl. at ¶¶ 33, 35-36. However, the defendants have placed him in MWCI, a level-four facility which generally houses inmates with greater security risks or lengthier sentences. Id. at ¶¶ 31, 34. Although the plaintiff has been eligible for less restrictive housing assignments, the defendants have refused to transfer him out of MWCI because of his need for dialysis treatment. Id. at ¶ 36.

         There are vast differences between MWCI, a level-four facility, and lower level facilities. Compl. ¶ 39. Inmates at MWCI are confined in their cells for longer periods of time than those at lower level facilities. Id. There are no level-one, level-two, or level-three facilities that confine prisoners for as long as MWCI. Id. at ¶¶ 40-42. Inmates at lower level facilities are also more likely to achieve success upon release whereas inmates at MWCI are at a greater risk of recidivism. Id. at ¶ 39. There are also greater security risks at higher level facilities like MWCI. Id.

         The plaintiff does not have any outstanding security or classification issues which would warrant higher level security confinement. Compl. ¶ 43. On multiple occasions, he sent requests to MWCI staff that he be assigned to a facility based on his overall security classification. Id. at ¶ 45. The defendants denied all of his transfer requests because of his need for dialysis. Id. at ¶ 46.; Pl.'s Exs. A-B (Doc. No. 1 at 24-27). The plaintiff has also attempted to gain access to vocational services, which the defendants have also denied. See Compl. ¶¶ 81-82. The defendants have not put forth any penological interest in housing the plaintiff, a level-one inmate, at MWCI or at any high level facility. Id. at ¶ 48.

         The plaintiff's confinement at MWCI has twice placed him at risk for life threatening infections. Compl. ¶ 49. He is particularly susceptible to staph infections, and his confinement at MWCI, a much less sterile facility, has exposed to him greater risks of infections in his dialysis port. Id. at ¶¶ 50-56. In 2014, he brought suit against Dr. Pillai after he contracted Methicillin-resistant Staphylococcus aureus (“MRSA”) at MWCI and was denied antibiotics for treatment. Id. at ¶ 53; Pierce v. Pillai, No. 3:14-CV-1477 (VLB), 2014 WL 5242885 (D. Conn. Oct. 15, 2014).[2]

         On October 1, 2018, while undergoing dialysis treatment, the plaintiff exhibited symptoms of infection, including low blood pressure, lethargy, dizziness, and a high body temperature. Compl. ¶ 57. He was rushed to the emergency department at the UConn Health Center where he was immediately placed on an antibiotic regimen. Id. at ¶¶ 58-59. Two days later, he underwent surgery to remove the infected tissue and install a temporary catheter. Id. at ¶¶ 60-61. On October 4, doctors placed a “wound vacuum” (“VAC”)[3] on his open surgical wound. Id. at ¶ 63. His catheter was removed on October 5. Id. at ¶ 64. A permanent catheter was placed in his groin on October 8. Id. at ¶ 66. The plaintiff was discharged from UConn on October 9. Id. at ¶ 67. His treating physician, Dr. Shu, ordered that a VAC be replaced upon his return to MWCI in order to properly effectuate the healing of his surgical wounds and decrease pain. Id.

         When he returned to MWCI on October 9, officials informed the plaintiff that they did not have a replacement VAC and sent him back to his housing unit. Compl. ¶ 68. Instead, the plaintiff was placed on Oxycodone, a powerful opiate, for his pain. Id. at ¶ 69. The next day, he was re-admitted to the medical unit at MWCI pending his application for a replacement VAC. Id. at ¶ 70. On October 11, he was evaluated by the Dr. Pillai, who informed him that he had cancelled Dr. Shu's order for a VAC and would instead prescribe Oxycodone. Id. at ¶ 71. The plaintiff told Pillai that he was not comfortable taking heavy doses of opiates for thirty days and would really prefer the VAC. Id. at ¶ 72.

         After a few weeks on Oxycodone, the plaintiff began noticing signs of addiction. Compl. ¶ 73. Although he informed medical staff at MWCI about his condition and requested that Pillai honor Dr. Shu's order for a VAC, the plaintiff was kept on the same treatment regimen. Id. at ¶ 74. The plaintiff went to the medical unit and spoke with a nurse, requesting that he be taken off Oxycodone. Id. at ¶ 75. The nurse agreed. Id. Subsequently, the plaintiff experienced numerous withdrawal symptoms, including chills, body aches, anger, and depression. Id. at ¶ 76.

         Discussion

         ADA and Rehabilitation Act

         The plaintiff purports to brings claims against all defendants in both their individual and official capacities, for violating his rights under Title II of the ADA and § 504 of the Rehabilitation Act. However, “neither Title II of the ADA nor §504 of the Rehabilitation Act provides for individual capacity suits against state officials.” Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). See also, Super v. J. D'Amelia & Associates, LLC, No. 3:09-CV-831 (SRU), 2010 WL 3926887, at *13 (D. Conn. Sept. 30, 2010); Nails v. Laplante, 596 F.Supp.2d 475, 481 (D. Conn. 2009). Therefore, claims against the defendants in their individual capacities shall be dismissed. The court next looks to whether the plaintiff has adequately stated a claim against the defendants in their official capacities.[4]

         Preliminarily, the court notes that Congress expressly abrogated the States' Sovereign Immunity with respect to claims brought under Title II of the ADA. United States v. Georgia,546 U.S. 151, 159 (2006). However, whether sovereign immunity was abrogated by the Rehabilitation Act, or whether states are deemed to have waived sovereign immunity by accepting federal funds, is a less settled question. Several district court decisions have held that Connecticut has waived its sovereign immunity with respect to claims brought under § 504 of the Rehabilitation Act whether for compensatory or injunctive relief. See Super, 2010 WL 3926887, *12; see also Fowler v. Department of Corr., No. 3:17-CV-00848 (JAM), 2017 WL 3401252, at *5 (D. Conn. Aug. 8, 2017) (plaintiff may bring official capacity suit against state or its agent under ยง 504 of Rehabilitation Act). Moreover, the Connecticut Appellate ...


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