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Perez v. Semple

United States District Court, D. Connecticut

December 6, 2018

SCOTT SEMPLE, et al. Defendants.


          Janet C. Hall, United States District Judge.

         On October 12, 2018, the plaintiff, Gregory Perez (“Perez”), an inmate currently confined at the MacDougall-Walker Correctional Institution (“MWCI”) in Suffield, Connecticut, filed a complaint pro se pursuant to section 1983 of title 42 of the United States Code against three Connecticut Department of Correction (“DOC”) employees in their individual and official capacities: Commissioner Scott Semple, Dr. Naqvi, and Warden Mulligan. See generally Compl. (Doc. No. 1). Perez claims that the defendants acted negligently and violated his Eighth Amendment protection against cruel and unusual punishment by acting with deliberate indifference to his sleep apnea condition. Id. at 6. He seeks monetary and declaratory relief against them in their individual and official capacities. Id. On October 19, Magistrate Judge William I. Garfinkel granted Perez's Motion to Proceed in forma pauperis. See Order (Doc. No. 8).

         On October 30, 2018, Perez filed a Motion to Amend the Complaint to add two new constitutional claims and a medical malpractice claim against five new defendants. See generally Mot. to Amend Compl. (Doc. No. 9). The facts and legal claims stated in the Motion to Amend are difficult to read because they appear to have been written in pencil. As best the court can discern from the Motion, Perez claims that the five new defendants acted with deliberate indifference to a separate medical condition from which he suffers, specifically, an open abscess in his buttocks. Id. at 1, 2. The claims stated in his Complaint and in his Motion to Amend appear to be unrelated. See, infra, at 7.

         For the following reasons, the Complaint is dismissed without prejudice, and the Motion to Amend is granted in part and denied in part.


         Pursuant to title 28 section 1915A of the United States Code, this 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, a 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. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).


         On April 11, 2018, Perez wrote a request to the medical unit to provide him with a CPAP machine because he suffers from sleep apnea.[1] Compl. at 5, ¶¶ 1-2. The medical unit provided him with sleeping pills but failed to provide him with the CPAP machine. Id. at 5, ¶ 2. Perez then filed a grievance on July 22, because he was still experiencing sleep problems and difficulty breathing during the night. Id. at 5, ¶ 3. He filed an appeal on September 16, because no one had responded to his grievance. Id. at 5, ¶ 4.

         Perez has spent the last six months attempting to gain access to a CPAP machine, but he has not been successful. Compl. at 5, ¶ 5. He remains fatigued during the day because he is forced to get up three to four times per night as a result of his sleep apnea. Id. at 5, ¶ 6. He also drinks large amounts of water at night to force himself to urinate so that he does not fall asleep because he is afraid that he will stop breathing during the night. Id. at 5, ¶ 7. The lack of sleep has caused Perez “stress and misery.” Id. at 5, ¶ 8. He alleges that the medical unit “has been deliberately indifferent to [his] needs.” Id. at 5, ¶ 9.


         In his Complaint, Perez is suing all three defendants for acting with deliberate indifference to his serious medical needs, in violation of his Eighth Amendment protection against cruel and unusual punishment, by denying him access to a CPAP machine to use while sleeping during the night. Compl. at 6. He also claims that the denial of the machine constituted negligence. Id. Although Perez has alleged that he suffers from a sufficiently serious medical condition, he has not alleged facts showing each defendant's personal involvement in the alleged constitutional violation.

         To state a claim for deliberate indifference to a serious medical need, Perez must show both that his medical need was serious and that the defendants acted with a sufficiently culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citing Estelle v. Gamble, 492 U.S. 97, 105 (1976)). There are both objective and subjective components to the deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). The condition must be “one that may produce death, degeneration, or extreme pain.” See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted). Subjectively, the defendants must have been actually aware of a substantial risk that Perez would suffer serious harm as a result of their actions or inactions. See Salahuddin v. Goord, 467 F.3d 263, 280-81 (2d Cir. 2006). Negligence that would support a claim for medical malpractice does not rise to the level of deliberate indifference and is not cognizable under section 1983. See id. at 280. Nor does a difference of opinion regarding what constitutes an appropriate response and treatment. See Ventura v. Sinha, 379 Fed.Appx. 1, 2-3 (2d Cir. 2010); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

         Perez has stated sufficient factual allegations showing a “sufficiently serious” deprivation under the Eighth Amendment. He has alleged that he suffers from sleep apnea, a serious medical condition, and that officials at MWCI have not provided him with a CPAP machine to allow him to sleep throughout the night. However, his claims for damages and declaratory relief do not satisfy the subjective element of the Eighth Amendment standard for the following reasons.

         With respect to his damages claim, it is well settled that “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation marks omitted); see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973) (doctrine of respondeat superior does not suffice for claim of monetary damages under section 1983). A plaintiff who sues a supervisory official for monetary damages must allege that the official was “personally involved” in the constitutional deprivation in one of five ways: (1) the official directly participated in the deprivation; (2) the official learned about the deprivation through a report or appeal and failed to remedy the wrong; (3) the official created or perpetuated a policy or custom under which unconstitutional practices occurred; (4) the official was grossly negligent in ...

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