United States District Court, D. Connecticut
INITIAL REVIEW OF COMPLAINT (DOC. NO. 1) & RULING
RE: MOTION TO AMEND (DOC. NO. 9)
C. Hall, United States District Judge.
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.
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.
following reasons, the Complaint is dismissed without
prejudice, and the Motion to Amend is granted in part and
denied in part.
STANDARD OF REVIEW
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)).
FACTUAL ALLEGATIONS IN COMPLAINT
April 11, 2018, Perez wrote a request to the medical unit to
provide him with a CPAP machine because he suffers from sleep
apnea. 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.
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, ¶
ANALYSIS OF COMPLAINT
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.
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).
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
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 ...