United States District Court, D. Connecticut
INITIAL REVIEW ORDER
A. Dooley United States District Judge
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,
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.
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).
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.
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.
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.
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.
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).
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”) 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.
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.
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
and Rehabilitation Act
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
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 § 504 of Rehabilitation Act).
Moreover, the Connecticut Appellate ...