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Harnage v. Wu

United States District Court, D. Connecticut

January 31, 2019

JAMES A. HARNAGE
v.
DR. WU, et al.

          OMNIBUS RULING ON PLAINTIFF'S FOURTEEN MOTIONS TO COMPEL [DOCS. #175, #176, #177, #178, #179, #181, #183, #186, #187, #188, #189, #190, #191, #192]

          HON. SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE

         Self-represented plaintiff James A. Harnage (“plaintiff”) has filed fourteen motions to compel, each of which seeks an order compelling a specific defendant to further respond to plaintiff's revised interrogatories and requests for production. See Docs. #175, #176, #177, #178, #179, #181, #183, #186, #187, #188, #189, #190, #191, #192 (collectively the “motions to compel”).[1] Defendants have filed no response to plaintiff's motions, instead opting to rely on their objections to plaintiff's requests. See Doc. #205 at 13. On July 23, 2018, and July 26, 2018, Judge Alvin W. Thompson referred plaintiff's motions to the undersigned. [Docs. #185, #193]. For the reasons set forth below, the Court GRANTS, in limited part, and DENIES, in large part, plaintiff's motions to compel directed to Francis [Doc. #175], Dr. Naqvi [Doc. #176], Lightner [Doc. #178], O'Halloran [Doc. #179], Bonetti [Doc. #183], Greene [Doc. #186], Lovely-Bombardier [Doc. #187], Candelario [Doc. #189], Chouinard [Doc. #190], Henderson [Doc. #191], and Furtick [Doc. #192]. The Court DENIES in their entirety plaintiff's motions to compel directed to Dr. Pillai [Doc. #177], McChrystal [Doc. #181], and Shortridge [Doc. #188].

         I. Procedural History and Factual Background

         A. Pleadings-Related Background

         On September 13, 2016, plaintiff filed a Complaint alleging that defendants were deliberately indifferent to his medical needs by denying him certain medications. See generally Doc. #1, Complaint. Plaintiff also alleged that certain defendants retaliated against him. See generally Id. On October 19, 2016, Judge Thompson issued an Initial Review Order of the Complaint. See Doc. #7. The Initial Review Order: (1) dismissed all claims alleged against Correctional Managed Health Care (“CMHC”), see Id. at 10; (2) permitted plaintiff's deliberate indifference to medical needs claims to proceed, see Id. at 12; (3) permitted the retaliation claim against Dr. Naqvi to proceed, see Id. at 14; (4) dismissed the retaliation claims against all other defendants, see Id. at 14-15; and (5) permitted the state law claims to proceed, see Id. at 15.

         Defendants filed an appearance in this matter on January 9, 2017. [Doc. #21]. On March 29, 2017, defendants filed a partial motion to dismiss. [Doc. #28]. On November 16, 2017, Judge Thompson granted defendants' partial motion to dismiss, in part. See Doc. #54. Judge Thompson ordered:

The defendants' motion to dismiss [ECF No. 28] is hereby GRANTED as to the claim for changing the prescription for clobatasol propionate to Temovate and as to all claims based on acts occurring before September 13, 2013.
The case will proceed on the deliberate indifference claims regarding flunisolide and Flonase, the denial of clobatasol propionate and Temovate, the claims regarding gabapentin, and the retaliation claim against Dr. Naqvi.

Doc. #54 at 15-16.

         Also on November 16, 2017, Judge Thompson issued a ruling on plaintiff's then-pending motion for leave to amend the complaint. [Docs. #43, #55]. Judge Thompson denied plaintiff's motion, without prejudice, and permitted plaintiff to “refile his motion within 30 days accompanied by a proposed amended complaint that includes only the claims remaining in this case [as set forth in the motion to dismiss ruling] and the retaliation claim that was included in Harnage v. Caldonero, No. 3:16cv1876(AWT).” Doc. #55 at 3 (footnote omitted) (sic).

         Plaintiff now proceeds pursuant to a “Corrected and Re-Scanned Second Amended Complaint[, ]” which was filed on December 22, 2017 (hereinafter the “Second Amended Complaint”). [Doc. #69, Second Amended Complaint].[2] The allegations of the Second Amended Complaint relate to plaintiff's time spent incarcerated at the MacDougall Correctional Institute from September 13, 2013, to July 2016. See Doc. #69, Second Amended Complaint at ¶1.

         Plaintiff alleges that as he “has aged, he has grown to require certain medications to provide him a reasonable quality of life and to prevent needless suffering.” Id. at ¶19. Plaintiff alleges that defendant Dr. Wu

initiated a mandate to medical staff to reduce budgetary expenses by any means, including the delay, denial and refusal to treat inmate medical needs, or mandatory prescriptive use of less effective medications and the use or reuse of medical supplies or improper medical equipment; without concern for the health or well being of the inmates, including Harnage.

Id. at ¶22 (sic). As to the other defendants, plaintiff alleges: “At multiple different times during the operative time period, that defendants Pillai, O'Halloran, Naqvi, McChrystal and Greene, ... refused, denied and/or unreasonably delayed prescribing or renewing prescriptions for solely budgetary and economic reasons, leaving the plaintiff to suffer needlessly.” Id. at ¶24. Similarly, plaintiff alleges that defendants “Rob, Caldonero, Caroline, Nikki, Tawana, Greene, Marissa, ... interfered with, delayed or denied the renewal or refill of properly prescribed medications by destroying and/or discarding refill requests and/or refusing to dispense the medications from the pharmacy; for economic ... purposes, leaving plaintiff to suffer needlessly.” Doc. #69, Second Amended Complaint at ¶25 (sic).[3] Plaintiff alleges that “said defendants” have “delay[ed] the distribution of refills” of his medication, and that he “has repeatedly watched as other inmates, who placed their orders for refills well after the plaintiff, have received their medications weeks before Harnage.” Id. at ¶¶27-28.

         Regarding flunisolide and Flonase, plaintiff asserts that Dr. Wu “received a discount on the cost of the nasal spray ‘Flonase', and/or an economic ‘kick back' from the manufacturer, and ordered that all inmates be changed over to the Flonase from whatever other nasal sprays they were taking, ... including Harnage, who was on Flunisolide for years, without problem.” Doc. #69, Second Amended Complaint at ¶32 (sic). Plaintiff alleges that he is allergic to Flonase, which causes him to suffer from burning in his nostrils and nose bleeds. See Id. at ¶¶34-35. Plaintiff alleges that because Flonase is dispensed in a glass bottle, inmates were required to receive the medication through “med-line” and were given the medication only once per day. See Id. at ¶33. This means that unlike the flunisolide, which was dispensed in a plastic bottle, plaintiff was unable to keep the nasal spray in his cell and could not use the medication as needed. See Id. at ¶37. Plaintiff “believes ... defendants are attempting to control the allowable dosage received of the nasal spray to less than the manufacturers recommended minimal dosage, solely to save money, without regard for the plaintiffs physical and mental well being.” Id. at ¶40 (sic); see also Id. at ¶57.

         Plaintiff alleges that on or about May 2016, he saw Dr. Naqvi “for renewal of his nasal spray” and that plaintiff tried to discuss with Dr. Naqvi his issues with the Flonase. Id. at ¶41. Plaintiff alleges that Dr. Naqvi refused to hear his complaints and instead renewed plaintiff's Flonase prescription. See Id. at ¶¶42-43. Thereafter, plaintiff “filed a medical grievance known as a Health Service Review.” Id. at ¶44. On or about June 2016, plaintiff “initiated legal action attempting to correct medical deficiencies[.]” Doc. #69, Second Amended Complaint at ¶45. When plaintiff informed Dr. Naqvi that he had “initiated legal action to challenge the denial of the Flunisolide, Naqvi sarcastically told Harnage, ‘Really, alright let's see how you like not having any nasal spray. I'll just discontinue the order completely.'” Id. at ¶46 (sic). Plaintiff alleges that Dr. Naqvi then discontinued his Flonase prescription, and replaced it with an “ineffective” saline solution. See Id. at ¶¶47-49.

         Plaintiff alleges that he “has maintained an active order for Clobetasol Propionate to control and treat his scalp psoriasis.” Id. at ¶64. Plaintiff alleges that he did not receive refills of the Clobetasol Propionate “for several months” and “learned that the order was changed to ‘Temovate', ” a cream-based prescription which “gets into his hair, then onto his pillow at night and into his eyes and mouth.” Id. at ¶55 (sic). Plaintiff alleges that he did “not receive[] a single delivery of the Temovate for more than a year.” Id. at ¶56. Plaintiff alleges that despite his repeated grievances concerning this issue, “the matter was not corrected and plaintiff was left to suffer with large patches of plaque psoriasis that spreads from his scalp down to his ears causing pain, itching, burning and bleeding all of which is intensified each time the plaintiff showers.” Id. at ¶57. Plaintiff “believes ... that defendants Rob, Caldonero, Caroline, Nicki, Tawana, Greene, Marissa, ... have been refusing to dispense Clobetasol and Temovate to ... save money.” Doc. #69, Second Amended Complaint at ¶58. Plaintiff also asserts that defendants “receive bonuses based on a percentage of savings, from the medical expenses budget.” Id. at ¶59.

         Plaintiff next alleges that “since being diagnosed as a diabetic, [he] has been prescribed Gabapentin, for diabetic neuropathy; at a dose of 120 mg, 3 times per day at 8 am, 2pm and 8pm.” Id. at ¶60 (sic). Plaintiff alleges that the Department of Correction (“DOC”) previously permitted an inmate to keep Gabapentin in his or her cell, but that the medication has since been reclassified such that it must now be received at the med-line. See Id. at ¶¶60-61. Plaintiff alleges that this change “created a greater demand on medical staff[]” who “began making inmates, including Harnage, wake up at 5 am to receive their 8 am doses, for their own personal convenience[.]” Id. at ¶¶63-64 (sic).[4] Plaintiff alleges that initially, medical staff would deliver the 5 a.m. dose to inmates at their respective cells, but that after several months, “defendants instituted a policy that required inmates to go outside their housing units to get their Gabapentin at 5 am.” Id. at ¶¶66-67 (sic).

         Plaintiff alleges: “This practice relied on the housing unit custody officer simply ‘clicking' the automatic locks on the cell doors to release the inmates from their cells. If the inmates were not awake, and standing at their cell doors, the staff simply listed the inmates, including Harnage, as having ‘refused' their medications.” Doc. #69, Second Amended Complaint at ¶¶68-69. Plaintiff alleges that “[b]ecause the clicking was insufficient to wake Harnage, he missed many 5am med-lines and staff refused to deliver the medication at the properly prescribed 8 am.” Id. at ¶73 (sic). Plaintiff further alleges that after he pointed out the proper prescription times for the Gabapentin that “defendants Rob, Caldonero, Caroline, Greene, James, Tawanna, Nikki, Marissa, ... maliciously went to Naqvi and Pillai and talked them into changing the prescription time for the first does to 5 am, for their own personal convenience, rather than, plaintiffs health and well being.” Id. at ¶74 (sic). Because he still could not awake at 5 a.m., plaintiff alleges that defendants eliminated his first dose of Gabapentin, rather than give it to him at the correct time. See Id. at ¶75.

         Plaintiff alleges that for one week, defendants Caroline, Greene, Marissa, and Tawanna refused to allow plaintiff to bring his 2 p.m. dose of Gabapentin to his trial in federal court, in contravention of DOC and CMHC policy. See Id. at ¶¶77-79. After having addressed this issue with Judge Thompson, plaintiff alleges that “defendants, Rob, Caldonero, Greene, Caroline, Nikki, Tawanna, ... and Marissa, maliciously eliminated plaintiffs 2 pm dose in collusion with Wu, Pillai and Naqvi.” Doc. #69, Second Amended Complaint at ¶81, ¶83 (sic). Eight weeks later, Dr. Wu “authorized the defendants to discontinue every inmates 2 pm dosage, solely for staff convenience, rather than the inmate physical and mental well being.” Id. at ¶85 (sic). Plaintiff contends that defendants have asserted that “if they split the 2 pm dose and give higher doses on the First and Third Dosages it will provide the same relief and coverage.” Id. at ¶86 (sic). Plaintiff alleges that the actions of defendants “are arbitrary and without consideration for the long term health risks associated with the higher doses of Gabapentin than is recommended by the Manufacturer and the Food and Drug Administration (FDA).” Id. at ¶90. Plaintiff contends that “defendants failed to recognize the dosing irregularities in the timing of the administration of the medication[, ]” and that because of defendants' actions, including the discontinuance of his morning dose, he went sixteen hours between receiving doses of Gabapentin. See Id. at ¶91, ¶96. Plaintiff alleges that as a result, he experienced “pain feeling as if his feet were on fire with a thousand pins being stuck in for good measure[].” Id. at ¶96. Plaintiff “repeatedly attempted to address his concerns with each of the defendants, ” but they “could not have cared any less.” Doc. #69, Second Amended Complaint at ¶98. Plaintiff also alleges that “defendants have engaged in the practice of simply ignoring or discarding all of plaintiffs written requests and health service reviews.” Id. at ¶100 (sic).

         Count Two encompasses the retaliation claim originally pled in Harnage v. Caldonero, No. 16CV1876(AWT) (D. Conn. Nov. 15, 2016). Plaintiff alleges that while he was confined at MacDougall, he “actively challenged deficiencies in his medical care by filing grievances and lawsuits to enforce his right to proper care.” Doc. #69, Second Amended Complaint at ¶¶110-11. Plaintiff alleges that “[o]n or about May 27, 2013, plaintiff reported the cross contamination of insulin by a medical staff member who ‘double-dipped' a hypodermic needle while treating diabetic inmates.” Id. at ¶112. Plaintiff alleges that his report resulted in “an intensive medical response, ” and “added workload and change in policies and procedures, which added more stringent guidelines, angered some of the medical staff at MacDougall, the defendants herein[.]” Id. at ¶¶113-14. Immediately following his report, “defendants began giving Harnage a hard time receiving medical care, ... as well as interfering with the timely refills of the plaintiffs prescriptions.” Id. at ¶116 (sic). The alleged “denial and/or delay of plaintiff's prescriptions and refills was being aggravated by Wu, who issued the mandate that medical staff take drastic measures to reduce costs.” Doc. #69, Second Amended Complaint at ¶117. Plaintiff asserts that “defendants acted in a conspiracy, one with the other to deny the plaintiff adequate medical care equal to that afforded to all other inmates whom did not file complaints, grievances or lawsuits against medical staff.” Id. at ¶119 (sic). Plaintiff alleges: “For quite some time after reporting the insulin cross contamination, the plaintiffs requests for refills and renewals of his prescriptions were either not processed or delayed in the distribution thereof, by said defendants, for as long as 5-6 weeks at a time.” Id. at ¶121 (sic). Plaintiff alleges that defendants specifically interfered with his receipt of Ibuprofen, for his pain management, and as a result, plaintiff needlessly suffered. See Id. at ¶¶122-28. Plaintiff further asserts that “[e]very time that the plaintiff attempted to file a Health Service Review (HSR) to remedy the deprivation of his pain reliever, said defendants also interfered with the receipt, filing, processing and response to the Administrative remedy.” Id. at ¶129.

         B. Discovery-Related Background

         On April 26, 2018, the Court held an in-person discovery conference in this matter to address twenty-four motions to compel, and several other motions, filed by plaintiff. See Docs. #140, #141. Following that conference, on May 7, 2018, the Court issued a Memorandum of April 26, 2018, Discovery Conference and Ruling on Pending Motions (hereinafter the “Discovery Memorandum and Order”). [Doc. #141]. In pertinent part, the Court ordered:

As to the discovery directed to the other defendants, which defense counsel has not received, plaintiff may either re-issue those requests, bearing in mind the parameters of discovery discussed during the April 26, 2018, ...

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