United States District Court, D. Connecticut
JOHN S. KAMINSKI, Plaintiff,
HILLARY C. ONIYUKE, et al., Defendants.
INITIAL REVIEW ORDER
R. Underhill United States District Judge
January 10, 2019, John S. Kaminski, an inmate currently
confined at the MacDougall-Walker Correctional Institution in
Suffield, Connecticut, brought a complaint pro se and in
forma pauperis pursuant to 42 U.S.C. § 1983 against
three state officials (Dr. Hillary C. Oniyuke, Dr. Johnny Wu,
and Assistant Attorney General Steven M. Barry), as well as
the UConn Health Center, and X-Spine Systems Inc., a private
medical supply company. Compl., Doc. No. 1. He appears to be
suing the defendants for acting with deliberate indifference
to his medical needs, in violation of his Eighth Amendment
protection against cruel and unusual punishment, and for
depriving him of his Fourteenth Amendment right to due
process. Id. at 20-21, 26-27. For the following
reasons, the complaint is dismissed.
Standard of Review
28 U.S.C. § 1915A, I 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. 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. 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 Am., 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
instant complaint consists primarily of legal conclusions and
does not contain a “short and plain statement of the
claim” as required by Federal Rule of Civil Procedure
8. In order for the complaint to proceed and to give the
defendants fair notice of the claim(s) against them, Kaminski
must allege specific facts, and not just legal arguments,
showing how the defendants acted with deliberate indifference
to his medical needs or violated his right to due process.
Thus, I will afford Kaminski one opportunity to amend his
complaint in order to state a plausible claim for relief
against the defendants. However, as shown below, the amended
complaint must be limited to claims against Dr. Oniyuke and
Dr. Wu because Kaminski cannot bring claims against the other
appears that Kaminski is suing X-Spine Systems Inc. for
manufacturing a broken titanium medical device that medical
personnel at the UConn Health Center surgically placed in his
spine on November 18, 2014. Compl. at 5. On February 2, 2017,
Kaminski filed a civil action in state court against X-Spine
Systems, Inc. and the UConn Health Center for negligence and
product liability. Kaminski v. X-Spine Systems, Inc., No.
HHB-CV17-5018204-S, judicial district of New Britain
(Conn. Super. Ct. 2017). That action is currently pending in
Kaminski had filed a proper civil complaint in this case, he
cannot bring claims against either of those two defendants.
The UConn Health Center is not a person subject to liability
under section 1983. See Will v. Michigan Dep't of
State Police, 491 U.S. 58 (1989) (state agency not a
person within meaning of section 1983); see also Figueroa
v. Correctional Managed Health Care, 2016 WL 7428191, at
*3 (D. Conn. Dec. 23, 2016) (Correctional Managed Health Care
not person subject to liability under section 1983). Further,
X-Spine Systems, Inc. is a private corporation, which is
generally not subject to liability under section 1983. See
Ciambriello v. County of Nassau, 292 F.3d 307,
323-24 (2d Cir. 2002). The actions of private entities may be
attributed to the state if the plaintiff can show that
“(1) the entity acts pursuant to the ‘coercive
power' of the state or is ‘controlled' by the
state (‘the compulsion test'), (2) when the state
provides ‘significant encouragement' to the entity,
the entity is a ‘willful participant in joint activity
with the [s]tate,' or the entity's functions are
‘entwined' with state policies (‘the joint
action test' or ‘close nexus test'), or (3)
when the entity ‘has been delegated a public function
by the [s]tate.' (public function test').”
Hollman v. County of Suffolk, 2011 WL 2446428, at *4
(E.D.N.Y. June 15, 2011) (quoting Sybalski v. Indep. Gr.
Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.
2008)). However, the fact that X-Spine Systems, Inc.
manufactured a defective medical device, and state medical
officials used that device, does not support an inference of
state action on the part of the private corporation. See
Vines v. Janssen Pharmaceuticals, 2018 WL 5045753,
at *6 (D. Conn. Oct. 17, 2018) (dismissing former
prisoner's claim against drug manufacturer for failure to
show state action). Therefore, the claims against X-Spine
Systems, Inc. and the UConn Health Center cannot proceed.
is also suing Assistant Attorney General Barry, who
represents the UConn Health Center in Kaminski v. X-Spine
Systems, Inc., No. HHB-CV17-5018204-S. As best as I can
surmise from his complaint, Kaminski is suing Barry for
seeking dismissal of the claim against the UConn Health
Center in the state court case on grounds of state and
sovereign immunity rather than investigating “who was
at fault” for the surgery involving the broken medical
device. See Compl. at 15. The state court has not yet ruled
on Barry's motion to dismiss the claims against the UConn
Health Center. Kaminski cannot state a claim against Barry
for acting on his client's behalf in the state court
action. “Courts have consistently afforded absolute
immunity to a government attorney's decision whether or
not to initiate a criminal or civil litigation, and
therefore, whether the state's considerable resources and
energy will be directed towards the prosecution of a
particular case or controversy.” Mangiafico v.
Blumenthal, 358 F.Supp.2d 6, 22 (D. Conn. 2005)
(emphasis in original). In moving to dismiss the claim
against the UConn Health Center, Barry was exercising his
professional judgment as an advocate for the State of
Connecticut. See Id. (citing Kalina v.
Fletcher, 522 U.S. 118, 129-30 (1997)). Thus, I conclude
that Barry is entitled to absolute immunity as a government
attorney from Kaminski's claim in this case.
remaining two defendants in this case, Dr. Oniyuke and Dr.
Wu, are both state officials subject to liability under
section 1983. Kaminski is suing those two defendants in their
individual capacities for damages for installing the
defective medical device in his back and/or delaying any
corrective surgery for nearly one and one-half years. See
Compl. at 14. Kaminski raised the same claim against other
state officials in a previous lawsuit, Kaminski v. Colon,
No. 3:18-cv-2099 (SRU). I dismissed his claim in that
case because Kaminski failed to allege facts showing how any
of the defendants in that case were personally involved in
delaying his appointment at which the defective medical
device was discovered. See Initial Review Order, Doc. No.
8, Kaminski v. Colon, No. 3:18-cv-2099 (SRU) (citing
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). I
instructed Kaminski that he may pursue an Eighth Amendment
claim for deliberate indifference to medical needs based on
those facts in a separate lawsuit. See Id. Because
Kaminski has now raised such a claim in the instant lawsuit,
I will permit the Eighth Amendment claim to proceed against
Oniyuke and Wu if he can allege facts in an amended complaint
showing their personal involvement in the installation of the
device and/or the delay in receiving corrective treatment.
state a claim for deliberate indifference to a serious
medical need under the Eighth Amendment, Kaminski 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 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). “When the basis for a prisoner's Eighth
Amendment claim is a temporary delay or interruption in the
provision of otherwise adequate medical treatment, it is
appropriate to focus on the challenged delay or interruption
in treatment rather than the prisoner's underlying
medical condition alone in analyzing whether the alleged
deprivation is, in objective terms, sufficiently serious, to
support an Eighth Amendment claim.” Smith, 316 F.3d at
185 (emphasis in original; internal quotations omitted).
Subjectively, the defendants must have been actually aware of
a substantial risk that Kaminski 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). 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. at 280; nor
does a difference of opinion regarding what constitutes an
appropriate response and treatment. See Ventura v.
Sinha, 379 Fed.Appx. 1, 2-3 (2d Cir. 2010); Chance
v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
instant complaint consists primarily of legal arguments and
conclusions and is devoid of specific facts showing how
Oniyuke and Wu acted with deliberate indifference to
Kaminski's medical needs. To the extent Kaminski is suing
those two defendants solely based on the improper placement
of the defective medical device in his spine, his claim fails
because he has not shown how the defendants' actions
constituted anything other than medical malpractice. Thus, I
will give Kaminski one more opportunity to amend his
complaint with additional facts showing how Oniyuke and Wu
violated his Eighth Amendment protection against cruel and
unusual punishment. The amended complaint must contain facts
showing each defendants' personal involvement in the
Eighth Amendment violation. See Wright, 21 F.3d at 501
(showing of personal involvement necessary to recover damages
under section 1983).
also appears to be raising a Fourteenth Amendment due process
claim against the defendants. See Compl. at 26-27. However, I
cannot discern from his complaint the basis for such a claim,
or even whether Kaminski is claiming a violation of
procedural due process or substantive due process.
standard analysis for a claim of a violation of procedural
due process “proceeds in two steps: We first ask
whether there exists a liberty or property interest of which
a person has been deprived, and if so we ask whether the
procedures followed by the State were constitutionally
sufficient.” Swarthout v. Cooke,562 U.S. 216,
219 (2011) (per curiam). In the prison context (involving
someone whose liberty interests have already been severely
restricted because of his confinement in a prison), a
prisoner must show in the first step that he was subject to
an “atypical and significant hardship . . . in relation
to the ordinary incidents of prison life.” Sandin
v. Conner,515 U.S. 472, 484 (1995). With respect to the
second step of the analysis, the procedural safeguards to
which a prisoner is entitled before being deprived of a
constitutionally significant liberty interest are
well-established. Due process requires: (1) written notice of
the charges; (2) the opportunity to appear at a disciplinary
hearing and a reasonable opportunity to present witnesses and
evidence in support of the defense, subject to the
correctional institution's legitimate safety and