United States District Court, D. Connecticut
INITIAL REVIEW ORDER
A. Dooley United States District Judge.
Kevin Jackson (“Jackson”), currently confined at
MacDougall-Walker Correctional Institution in Suffield,
Connecticut, filed this complaint pro se under 42
U.S.C. § 1983 asserting a claim for deliberate
indifference to a serious medical need against defendant Dr.
Gerald Valletta. Jackson seeks damages and declaratory
relief. The complaint was received on January 18, 2019, and
Jackson's motion to proceed in forma pauperis
was granted on February 11, 2019.
section 1915A of title 28 of the United States Code, the
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. Id. In reviewing a pro se
complaint, the Court must assume the truth of the
allegations, and interpret them liberally to “raise the
strongest arguments [they] suggest.” Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although
detailed allegations are not required, the 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.” Twombly, 550 U.S. at
28, 2017, Jackson underwent surgery at the University of
Connecticut Health Center. The surgeon shaved a bone in
Jackson's right index finger that had a large dorsal spur
and implanted a screw from the fingertip past the first
joint. A doctor at the hospital referred Jackson to Dr.
Valletta with a recommendation for Percocet 5/32mg for
post-surgery pain. Dr. Valletta prescribed Tylenol 3, once
per day. On June 29, 2017, Jackson complained that the
Tylenol 3 caused vomiting and requested a different
medication. On June 30, 2017, Jackson submitted his request
in writing. Dr. Valletta met with Jackson later that day
after receiving the written request. Jackson explained that
he was allergic to Tylenol 3 and that it caused him to
experience chills, nausea, fever and vomiting. Dr. Valletta
told Jackson that, if he changed the medication, he would
have to transfer Jackson to the infirmary and said he did not
have time for that. Instead, Dr. Valletta raised the dose of
Tylenol 3 to three times per day and sent Jackson back to his
symptoms worsened with the increased dosage. As a result, on
July 4, 2017, Jackson refused the medication. He told the
medical staff verbally and in writing that he needed a
different medication for pain. From July 4 through July 19,
2017, Jackson was not treated. He experienced severe
post-surgical pain. Although Dr. Valletta received his
requests for treatment, Jackson was ignored.
alleges that Dr. Valletta was deliberately indifferent to his
severe pain for two weeks. The Supreme Court has held that
deliberate indifference to a convicted
prisoner'sserious medical needs can constitute cruel
and unusual punishment in violation of the Eighth Amendment.
See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
claim of deliberate indifference to serious medical needs
contains both an objective and a subjective component.
See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d
establish a claim for deliberate indifference to serious
medical needs, Jackson must show that he had objectively
“serious medical needs, ” and his condition was
met with subjective “deliberate indifference” by
the defendant. Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011) (quoting Estelle, 429 U.S. at 104).
“The objective component requires that the alleged
deprivation [of medical treatment] must be sufficiently
serious, in the sense that a condition of urgency, one that
may produce death, degeneration, or extreme pain
exists.” Id. (citation and internal quotation
marks omitted). To establish the subjective component,
Jackson must allege facts showing that Dr. Valletta was
“aware of facts from which the inference could be drawn
that a substantial risk of serious harm exist[ed].”
Id. (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994).
the plaintiff complains about a delay in treatment, the court
must focus on the effect of the delay rather than the
underlying medical condition. See Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003); see
also Cruz-Droz v. Marquis, No. 3:17-cv-1291(MPS), 2018
WL 1368907, at *4 (D. Conn. Mar. 16, 2018) (if claim is for
temporary delay in otherwise adequate treatment, court
focuses on delay rather than underlying medical need). The
Second Circuit has held that a delay in treatment constitutes
deliberate indifference where prison officials “ignored
a life-threatening and fast-degenerating” condition for
three days, Liscio v. Warren, 901 F.2d 274, 277 (2d
Cir. 1990), or delayed needed major surgery for over two
years. Hathaway v. Coughlin, 841 F.2d 48, 50-51 (2d
Cir. 1988). The court considers the reason for the delay and
whether the delay worsened the prisoner's condition.
Smith, 316 F.3d at 187. “[I]n most cases, the
actual medical consequences that flow from the alleged denial
of care will be highly relevant to the question of whether
the denial of treatment subjected the prisoner to a
significant risk of serious harm.” Id.
showing of negligence or medical malpractice does not support
an Eighth Amendment claim, unless it involves culpable
recklessness. See Hernandez v. Keane, 341 F.3d 137,
144 (2d Cir. 2003). Thus, “not every lapse in prison
medical care will rise to the level of a constitutional
violation.” See Smith, 316 F.3d at 184.
concedes that any claim regarding Dr. Valletta's choice
of medication and act of increasing the dosage constitute
negligence and are not cognizable as Eighth Amendment
violations. He does not include these actions in his claim.
Doc. No. 1, ¶ 13. The factual basis for his claim is
that Dr. Valletta failed to follow-up and prescribe an