United States District Court, D. Connecticut
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, ...