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Whipper v. Ruiz

United States District Court, D. Connecticut

January 2, 2019

ALPHONSO WHIPPER, Plaintiff,
v.
RICHARD RUIZ, et al., Defendants.

          INITIAL REVIEW ORDER PURSUANT TO 28 U.S.C. § 1915A

          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Alphonso Whipper is a prisoner in the custody of the Connecticut Department of Correction. He has filed a complaint pro se and in forma pauperis under 42 U.S.C. § 1983 alleging deliberate indifference to his serious medical needs. After an initial review, the Court concludes that the complaint should be served on defendant Ruiz in his individual capacity and that all other claims against defendants Nurse Doe 1 and Nurse Doe 2 shall be dismissed.

         Background

         Whipper names three defendants: Dr. Richard Ruiz, Nurse Jane Doe 1, and Nurse Jane Doe 2. The claims concern Whipper's medical care at Cheshire Correctional Institution.

         In September 2015, Whipper began working in the marker shop at Cheshire Correctional Institution. His job required him to lift heavy materials. Doc. #1, ¶ 8. In October 2015, he felt a “pop” in his right index finger and a “sting” in his right forearm and triceps. Id., ¶ 9. The following morning, he experienced a loss of feeling in his finger and acute pain in his forearm and triceps. Id., ¶ 10. Whipper submitted a sick call request on the advice of the block officer. Id., ¶ 11.

         In November 2015, Whipper saw defendant Doe 1, the sick call duty nurse. Whipper described his injury and told Nurse Doe 1 that he was regaining some feeling in his finger but still experienced severe pain and soreness in his right forearm and triceps. Nurse Doe 1 told him that the injury was common at his age and that the pain would subside with proper rest. Id., ¶ 12. In December 2015, Whipper submitted a second sick call request because the pain had not subsided, and his right arm was very weak. Id., ¶ 13.

         In January 2016, Whipper saw Nurse Doe 2 at sick call. He described his pain and stated that his shoulder was now also involved. Id., ¶ 14. In March 2016, he met with Dr. Ruiz who stated that plaintiff “probably needs surgery” but “won't be given surgery” because of his age and length of sentence. Id., ¶ 15. In addition, Dr. Ruiz stated that he would not request another surgery because Whipper previously had an expensive knee surgery. Ibid.

         Dr. Ruiz acknowledged damage to Whipper's muscle but stated that, with proper rest, the arm would be “fully useful, ” and the pain would subside. Dr. Ruiz gave him a bottle of Tylenol and told him to buy more at the commissary. Id., ¶ 16. The Tylenol did not provide relief. Whipper submitted requests to Dr. Ruiz from May 2016 until October 2016. All requests were ignored. Id., ¶ 17.

         In November 2016, Whipper was called to the medical unit for sick call. No. treatment or medication was provided. He also noticed that the date on the sick call request he had submitted in September had been changed to November. Id., ¶ 18.

         In January 2017, a nurse interviewed Whipper in his housing unit. She tried to discredit his claims rather than treat his injury and told him she could do nothing for him. Id., ¶ 19. Whipper reported the incident to the medical unit. Id., ¶ 20. On January 13, 2017, he was called to the medical unit for treatment of a stomach condition. No. treatment was provided for his arm. Id., ¶ 21. He then submitted a grievance. Id., ¶ 22.

         On February 7, 2017, Whipper met with Dr. Ruiz, who stated that nothing could be done because Whipper would not be provided surgery or pain medication. Dr. Ruiz explained that Whipper's muscle was permanently torn and, therefore, he would require medication permanently. Dr. Ruiz claimed he was doing Whipper a favor by not giving him medication, because his body would “get used to” any medication. When Whipper expressed fear of atrophy, Dr. Ruiz consented to order a neck x-ray. Id., ¶ 23. Whipper stated he had no pain in his neck and had not injured any bones in his neck. He argued that he needed an MRI rather than an x-ray. Dr. Ruiz would not change the order. Id., ¶ 24. The x-rays were taken the following day. Id., ¶ 25.

         In April 2017, Dr. Ruiz met with Whipper and told him there would be no surgery to repair the torn muscle. Whipper would have to treat his pain with Tylenol purchased at the commissary. Dr. Ruiz would not listen to his description of the pain or his statements that Tylenol was ineffective. Id., ¶ 26. Following this visit, Whipper submitted an informal resolution form to the medical unit complaining about lack of treatment for his injury and pain. Id., ¶ 27.

         In the fall of 2017, Whipper was sent to UConn for a neurological screening to evaluate nerve damage. Dr. Ruiz told him he had suffered no nerve damage and could resume physical activity, which he had stopped completely following the injury. Id., ¶ 28. Dr. Ruiz dismissed Whipper's concerns that his arm was weaker than usual and that he continued to experience pain. Id., ¶ 29. Whipper tried to play basketball and began to exercise. Id., ¶ 30. Then, in early winter 2017, he woke to severe pain in his right forearm, triceps, shoulder, and neck. He believed all the pain was related and submitted a sick call request. Id., ¶ 31. When he was not called to the medical unit for several weeks, he submitted a second request. Id., ¶ 32.

         In January 2018, a nurse told Whipper that she had put him on a list to see Dr. Ruiz and did not understand why he had not been called to the medical unit. Id., ¶ 33. After 27 months of excruciating pain, Whipper filed a grievance. Id., ΒΆ 34. He did not receive a response for thirty days, at which ...


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