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Azor v. Semple

United States District Court, D. Connecticut

September 3, 2019

PHILLIP D. AZOR, Plaintiff,
v.
COMMISSIONER SCOTT SEMPLE, et al., Defendants.

          INITIAL REVIEW ORDER

          Stefan R. Underhill United States District Judge.

         On July 8, 2019, Phillip D. Azor, an inmate currently confined at the MacDougall-Walker Correctional Institution (“MWCI”) in Suffield, Connecticut, brought a complaint pro se and in forma pauperis under 42 U.S.C. § 1983 against nine Connecticut Department of Correction (“DOC”) officials in their individual and official capacities: Commissioner Scott Semple, Warden William Mulligan, Lieutenant Landolina, Lieutenant Angelakapalao, Lieutenant McCreary, Nurse John Doe, Nurse Hollie Good, Correction Officer Rivera, and Correction Officer Davis. Compl., Doc. No. 1. Azor seeks damages against the defendants for acting with deliberate indifference to his serious medical needs, in violation of his Eighth Amendment protection against cruel and unusual punishment, negligence, and supervisory liability. Id. at 12-26. For the following reasons, the complaint is dismissed in part.

         I. Standard of Review

         Under 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 litigants).

         II. Factual Allegations

         Azor alleges the following facts. Sometime prior to May 24, 2018, Azor tore his anterior cruciate ligament (“ACL”) and suffered nerve damage to his right leg and foot while playing basketball. See Compl. ¶¶ 1-3. On May 24, 2018, he wrote a Utilization Review Committee request to the medical unit at MWCI, asking that he be transported via a wheelchair-equipped van for his upcoming medical appointment at the UConn Health Center (“UConn”). See Compl. ¶ 3. Nurse Good responded to his request, stating that a wheelchair-equipped van would be provided for him for his next scheduled physical therapy session on July 31, 2018. Id. at ¶¶ 1, 3. On that date, Azor was notified that he would be transported to UConn in a regular van, without wheelchair accessibility. Id. at ¶ 2. In order to avoid missing his appointment, Azor agreed to ride in the van. Id. at ¶ 4. Officer Davis helped Azor onto the van. Id.

         Upon his return to MWCI, Officer Davis opened the side door of the van and attempted to assist Azor in exiting the vehicle. Compl. ¶ 5. Because of his limited range of motion and the fact that his legs were shackled, Azor's right leg gave out, and he fell out of the van, hitting the concrete. Id. Davis immediately went to the Admitting and Processing (“A&P”) room to summon assistance. Id. He returned a short time later with another officer and a wheelchair for Azor. Id. Azor told the officers that he was in excruciating pain and that he believed he had suffered some nerve damage to his leg. Id. He asked that he immediately be transported to the hospital. Id. The officers then helped him into the wheelchair and brought him to the infirmary in his housing unit. Id. at ¶ 6.

         While in the infirmary, Azor informed the on-duty nurse that he was in extreme pain and needed urgent care. Compl. ¶ 7. The nurse told Azor that he had to wait for the on-call physician to decide whether to send him to the hospital. Id. Later that afternoon, the on-call physician prescribed 800 mg of Ibuprofen for Azor's pain but did not order an x-ray. Id. at ¶ 8. Azor also informed the shift commander, Lieutenant McCreary, about his injury. Id. at ¶ 9. McCreary stated that he was aware of what had occurred and that Officer Rivera would be coming to draft a formal incident report and take photographs of Azor's injury, but Rivera never showed up. Id. at ¶ 10.

         At approximately 9:20 p.m., Azor attempted to go to his cell using crutches. Compl. ¶ 11. However, when he rose from his wheelchair and attempted to lean on the crutches, his leg gave out again, and he fell onto the floor. Id. Azor was assisted back into his wheelchair and transported to the A&P room and waited for an ambulance to arrive to take him back to UConn. Id. at ¶ 12. There, Lieutenants Landolina and Angelakapalao informed Azor that there would be no ambulance and that he would again be transported to UConn in a regular van. Id. They also told him that, if he did not agree to be transported in the van, he would be documented for refusing transport. Id. Azor told both lieutenants that he was in extreme pain and was unable to bend his knee or climb onto the van. Id. The lieutenants told Azor to “suck it up” and that he would be sent back to his housing unit if he refused to get on the van. Id. Because Azor was in desperate need of medical care, he climbed onto the van while in pain and with the assistance of several officers. Id.

         On August 29, 2018, Azor underwent surgery on his right knee. Compl. ¶ 13. However, because of the events on July 31, 2018, he suffered physical and emotional injuries, including “shock, anxiety, embarrassment, loss of dignity, emotional distress, stress, loss of trust . . . extreme physical discomfort, and limited functionality of [his] lower extremities.” Id. at ¶ 14.

         III. Analysis

         Azor is suing defendants Good, Davis, Rivera, Landolina, and Angelakapalao for violating his Eighth Amendment protection against cruel and unusual punishment by acting with deliberate indifference to his serious medical needs. Compl. at 12-16. He is pursuing the same claim against McCreary, Nurse John Doe, Warden Mulligan, and Commissioner Semple under a supervisory liability theory. Id. at 21-27. Finally, Azor is suing Good and Davis for negligence and negligence per se. Id. at 17-20. For the following reasons, I will permit Azor's Eighth Amendment claim to proceed against Landolina and Angelakapalao in their individual capacities but dismiss the remaining claims.

         A. Official Capacity Claims

         Azor states that he is suing all nine defendants in their individual and official capacities. Compl. at 1-2. To the extent he seeks monetary damages from the defendants in their official capacities, such claims are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159 (1985); Quern v. Jordan, 440 U.S. 332, 342 (1979). Because Azor only seeks damages ...


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