United States District Court, D. Connecticut
INITIAL REVIEW ORDER
MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE
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.
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
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)).
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.
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.
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.
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.
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.
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
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), 
visited Apr. 11, 2019). Thus, absent approval from the
Utilization Review Committee, the plaintiff could not receive
a CPAP machine.
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 ...