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Linarte v. Furey

United States District Court, D. Connecticut

April 16, 2019

FRANK LINARTE, Plaintiff,
v.
RICHARD FUREY, Defendant.

          INITIAL REVIEW ORDER

          MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE

         Plaintiff Frank Linarte incarcerated at the Osborn Correctional Institution in Somers, Connecticut, filed this case under 42 U.S.C. § 1983. He contends that the defendant, Richard Furey, was deliberately indifference to his serious medical need. The plaintiff seeks damages and an order for treatment.

         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. 28 U.S.C. § 1915A. This requirement applies to all prisoner filings regardless whether the prisoner pays the filing fee. Nicholson v. Lenczewski, 356 F.Supp.2d 157, 159 (D. Conn. 2005) (citing Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per curiam)). Here, the plaintiff is proceeding in forma pauperis.

         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 plausible 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 570. A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (2009). Nevertheless, it is well-established that “[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)).

         I. Allegations

         The plaintiff suffers from sleep apnea. ECF No. 1 at 18. Following a sleep study, a hospital consultant recommended that the plaintiff use a CPAP machine. The plaintiff has submitted numerous requests from August 29, 2018 through December 31, 2018 seeking a CPAP machine but has received no response. Id. at 9, ¶ 1. He has neither received a CPAP machine nor been told why the machine has been denied. Id., ¶ 2.

         Recently, the plaintiff's condition has worsened. Id., ¶ 3. He goes to sleep each night thinking that he will die or be unable to wake up. As a result, he suffers from lack of sleep, nightmares, weight loss, and stress. These conditions have affected his job assignment and recreation performance. Id., ¶ 4.

         On December 31, 2018, the plaintiff received a response from defendant Furey to a “Formal Request Form” that the unit counselor had helped the plaintiff file in November 2018. Id., ¶ 5. The plaintiff alleges that defendant Furey has “denied, refused, and obstructed [his] access to meaningful treatment and allowed his Medical Unit Staff to secret their identities.” Id., ¶ 6. When the plaintiff confronted defendant Furey, Furey stated, “You[‘re] in jail, what do you expect?” Following this exchange, the plaintiff kept away from defendant Furey. Id. at 10, ¶ 7.

         On January 23, 2019, the plaintiff filed a Health Service Review. The review was first marked “Upheld, ” then changed to indicate “No further action.” No. further action is not a disposition listed in correctional directives. Id., ¶ 8. The plaintiff had not received a CPAP machine as of, March 19, 2019, the day he signed the complaint. Id., ¶ 9.

         II. Analysis

         The plaintiff contends that defendant Furey was deliberately indifferent to his serious medical need. The Eighth Amendment forbids deliberate indifference to prisoners' serious medical needs. Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013). To state a claim for deliberate indifference to a serious medical need, the plaintiff must show both that his medical need was serious, and that the defendant 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, 104 (1976)). There are both objective and subjective components to the deliberate indifference standard. 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). The condition must produce death, degeneration or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Subjectively, the defendant must have been actually aware of a substantial risk that the plaintiff would suffer serious harm as a result of his actions or inactions. See Salahuddin, 467 F.3d at 279-80. Negligence that would support a claim for medical malpractice does not rise to the level of deliberate indifference and is not cognizable under section 1983. See id.

         Sleep apnea may constitute a serious medical need. See Madore v. Semple, No. 3:17-cv-129(MPS), 2017 WL 487017, at *3 (D. Conn. Feb. 6, 2017) (citing cases). The plaintiff attached to his complaint a medical report describing his condition as severe obstructive sleep apnea. ECF No. 1 at 18. As the condition is serious enough to require a CPAP machine, the Court finds that the plaintiff has alleged a serious medical need.

         The plaintiff argues that defendant Furey has denied treatment and obstructed access to the CPAP machine. The documents attached to the complaint show that, in June 2018, Dr. Wright submitted a request to the Utilization Review Committee for the sleep study. ECF No. 1 at 14. The request was approved on July 10, 2018. Id. Following the study, on September 6, 2018, Dr. Wright submitted a second Utilization Review request seeking a CPAP machine. Id. at 15. Utilization Review is the “process by which requests for specialty care, treatment, services, and/or diagnostic testing [are] reviewed for approval based on standard guidelines.” Department of Correction Administrative Directive 8.9(3)(K), [1] https://portal/ct/gov/DOC/AD/AD-Chapter-8 (last visited Apr. 11, 2019). Thus, absent approval from the Utilization Review Committee, the plaintiff could not receive a CPAP machine.

         Although defendant Furey could not order the CPAP machine, it is possible that he could have facilitated receipt of the machine. The plaintiff alleges that he submitted medical requests, beginning in August 2018, seeking the machine but received no responses. He submits a copy of an Inmate Request dated November 30, 2018, addressed to the Health Services Administrator, i.e., defendant Furey. In the request, the plaintiff states that he submitted several requests but still has not received the CPAP machine and asks defendant Furey to make inquiries to facilitate receipt of the machine. Defendant Furey responded on December 31, 2018, stating that he ...


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