United States District Court, D. Connecticut
INITIAL REVIEW ORDER
A. DOOLEY UNITED STATES DISTRICT JUDGE.
February 27, 2019, the Plaintiff, Robert Colvin, a
prisoner currently confined at the Osborn
Correctional Institution in Somers, Connecticut, brought a
civil action pro se under 42 U.S.C. § 1983 against the
UConn Health Correctional Managed Health Care and four of its
employees: Dr. Ryan Millea, Dr. Joel Calafell, Dr. Jeanne
Hunter, and Dr. Liang. Compl. (DE#1). The Plaintiff seeks
damages and injunctive relief against the Defendants for
violating his Eighth and Fourteenth Amendment rights.
Id. at p.1, 5. On March 6, 2019, Magistrate Judge
William I. Garfinkel granted the Plaintiff's motion to
proceed in forma pauperis. See Order No. 7. For the following
reasons, the complaint is dismissed without prejudice..
28 U.S.C. § 1915A, 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. 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.” Bell Atlantic, 550 U.S. at 570.
Notwithstanding, “[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. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006)); see also Tracy v. Freshwater, 623
F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of
solicitude for pro se litigants).
November 28, 2017, the Plaintiff went to the UConn Health
Center (“UConn”) and met with Dr. Millea for a
pre-operative consultation for his hernia repair surgery.
Compl. at p.2. Millea explained the benefits and risks of
having the surgery to remove the mesh and resection of the
nerve to relieve the pain. Id. After a lengthy
discussion, Plaintiff elected to have the surgery.
March 1, 2018, the Plaintiff returned to UConn for his
operation. Compl. at p.2. His appointment was scheduled for
10:00 a.m. Id. The Plaintiff spoke with Dr.
Millea's assistant, Dr. Calafell, and signed some papers.
Id. He then spoke with Dr. Hunter, the anesthesia
March 5, 2018, four days after the surgery, the Plaintiff
received a copy of his consultation form. Compl. at p.2. Upon
reviewing the form, he realized that only partial mesh was
removed during the surgery. Id. He filed a grievance
complaining that the entire mesh was supposed to be removed
per his discussion with Millea. Id. Five days later,
he filed an authorization form to obtain a copy of the
surgical report. Id.
March 27, 2018, the Plaintiff returned to UConn for a
post-operative consultation with Dr. Millea. Compl. at p.3.
There, he expressed concern to Millea that he was still
experiencing pain in the groin area and asked why Millea had
not removed the entire mesh as discussed during the
pre-operative consultation. Id. Millea explained
that there was too much scar tissue and fat encased in the
mesh and that the Plaintiff should not be feeling any pain
because part of the mesh was removed and the nerves were
divided. Id. Millea also stated that he would
recommend other options such as physical therapy and steroid
injections. Id. Pl.'s Ex. D (DE#1 at 14). The
Plaintiff has received “only one of those [options] to
date.” Compl. at p.3.
April 10, 2018, the Plaintiff received copies of the surgical
report and surgical pathology report. Compl. at p.3. In the
surgical report, Dr. Calafell wrote the following: “We
made sure before we closed [the aponeurosis] that, even
though we released the scar tissue from the mesh, [t]he
pelvic floor was still intact . . . the hernia was still
intact, and the mesh was in good position.”
Id.; Pl.'s Ex. E (DE#1 at 16).
10, 2018, the Plaintiff again returned to UConn where he met
with Dr. Liang. Compl. at p.3. After a fifteen-minute
discussion, Liang informed the Plaintiff that he would
“have to live with this pain for the rest of [his]
life.” Id. The Plaintiff contends that the
Defendants could have removed the entire mesh during the
March 1, 2018 surgery but chose not to do so. Id. at
Plaintiff claims that the Defendants' failure to remove
the entire mesh during his hernia operation, which resulted
in his continuing pain and discomfort, violated his rights
under the Eighth and Fourteenth Amendments to the United
States Constitution. Compl. at p.5.
state a claim for deliberate indifference to a serious
medical need in violation of the Eighth Amendment, the
Plaintiff 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,
184 (2d Cir. 2003) (citing Estelle v. Gamble, 492
U.S. 97, 105 (1976)). There are both objective and subjective
components to a deliberate indifference claim. 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). Subjectively, the
Defendants must have been actually aware of a substantial
risk that the Plaintiff 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). Allegations
of mere negligence or medical malpractice do not rise to the
level of deliberate indifference and are not cognizable under