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Michalski v. Erfe

United States District Court, D. Connecticut

November 13, 2019

MARCO MICHALSKI, Plaintiff,
v.
SCOTT ERFE, ET AL. Defendants.

          INITIAL REVIEW ORDER AND RULING ON MOTIONS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Marco Michalski (“Plaintiff”), currently incarcerated at Osborn Correctional Institution in Somers, Connecticut, filed a lawsuit while he was incarcerated at Cheshire Correctional Institute in Cheshire, Connecticut, against five individuals in their individual and official capacities who were associated with the Connecticut Department of Correction. Complaint, ECF No. 1 (Dec. 13, 2017). Mr. Michalski asserted claims under the U.S. Constitution's Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. Id.

         Mr. Michalski has since moved for leave to amend his Complaint three times to change claims and add defendants. Mot. to Amend/Correct, ECF No. 7 (Jan. 29, 2018); Mot. to Amend/Correct, ECF No. 19 (Apr. 18, 2019); Mot. to Amend/Correct, ECF No. 25 (Sept. 30, 2019). He has also filed numerous other motions, including a motion for a temporary restraining order and preliminary injunction. Mot. for Temp. Restraining Order and Prelim. Inj., ECF No. 20 (May 29, 2019) (“Mot. TRO & Prelim. Inj.”).

         This Order addresses multiple motions filed by Mr. Michalski and includes an Initial Review Order on his Fourth Amended Complaint.

         For the reasons set forth below, Mr. Michalski's motion for leave to file a Fourth Amended Complaint is GRANTED.

         Mr. Michalski's claims under the Eighth Amendment for monetary damages against Warden Scott Erfe, Commissioner Rollin Cook, [1] Dr. Bruce Lichtenstein, Ms. Yvonne Borchert, Dr. Ricard Benoit, and Mr. Richard Furey, in their official capacities; his claims for injunctive relief against all of these Defendants in their individual capacities; his claims for injunctive relief against Warden Erfe, Dr. Lichtenstein, Ms. Borchert, and Dr. Benoit in their official capacities; all of his claims against the University of Connecticut Health Center, the Department of Correction and Correctional Managed Health Care; and all of his negligence claims will be DISMISSED.

         Mr. Michalski's claims for injunctive relief under the Eighth Amendment against Commissioner Cook and Mr. Furey in their official capacities; and his claims for monetary relief under the Eighth Amendment against Warden Erfe, Commissioner Cook, Dr. Lichtenstein, Ms. Borchert, Dr. Benoit, and Mr. Furey in their individual capacities will proceed.

         All other pending motions will be DENIED as moot.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations[2]

         Mr. Michalski's dental issues allegedly stem partly from a root canal before his incarceration on tooth number 30. Fourth Am. Compl. ¶ 16. After the root canal, a dentist allegedly put a temporary crown[3] over what remained of tooth number 30. Id.

         From April 2013 to April 2015, Mr. Michalski was incarcerated at Corrigan Correctional Institution (“Corrigan”) and from August 2015 to March 2018, at Cheshire Correctional Institution (“Cheshire”). Id. ¶ 13. Since March 29, 2018, he has been incarcerated at Osborn Correctional Institution (“Osborn”). Notice of Change of Address, ECF No. 14 (Apr. 9, 2018).

         While at Corrigan, Mr. Michalski allegedly saw a dentist due to severe pain in his tooth, which was identified as tooth number 31, right next to the tooth with the crown. Id. ¶ 14. On January 28, 2015, Mr. Michalski allegedly met with a dentist at Corrigan and learned that tooth number 31 could not be restored and needed to be extracted. Id. ¶ 15. During the extraction of tooth number 31, either the temporary crown on tooth number 30 allegedly became dislodged, Fourth Am. Compl. Ex. A, ECF No. 25-1 at 26 (DOC Dental Record, notes by Sara Tessler, D.D.S. (Jan. 28, 2015)); or allegedly the dentist intentionally removed the crown in order to extract tooth number 31, Fourth Am. Compl. ¶ 17. The dentist allegedly gave the crown to Mr. Michalski and indicated that she would call him back to the office to put the temporary crown back on tooth number 30. Id. ¶ 18. During a subsequent search of Mr. Michalski's cell, an officer allegedly discarded the temporary crown. Id. ¶ 19.

         On February 19, 2015, the dentist allegedly fabricated a new temporary crown and cemented it over what remained of tooth number 30. Id. ¶ 20. Approximately two weeks later, the new temporary crown allegedly became dislodged. Id. ¶ 21. Mr. Michalski allegedly submitted multiple requests to have the new temporary crown applied to tooth number 30. Id. The dentist at Corrigan allegedly did not apply the crown prior to Mr. Michalski's transfer to Cheshire in August 2015. Id.

         On August 17, 2015, the Connecticut Department of Correction (“DOC”) allegedly transferred Mr. Michalski to Cheshire. Id. ¶ 75. He alleges that he never received an admission dental screening, as allegedly required under DOC policy. Id. ¶¶ 75-76.

         Around May 2016, Mr. Michalski allegedly began to experience pain on the left and the right side of his mouth. Id. ¶ 22. He alleges that he submitted several requests to be seen by a dentist due to severe dental pain that was affecting his ability to chew and to sleep. Id. ¶¶ 22-23. His requests allegedly went unanswered. Id.

         On September 3, 2016, Mr. Michalski allegedly submitted another request to be seen by a dentist due to severe dental pain. Id. ¶ 24. Yvonne Borchert, dental assistant at Cheshire, id. ¶ 7, allegedly responded to the request and indicated that Mr. Michalski was scheduled to be seen in the dental department, id. ¶ 24. On November 6, 2016, Mr. Michalski allegedly filed a request for a health services review to be seen by a dentist due to severe dental pain. Id. ¶ 25. Dr. Bruce Lichtenstein, the dentist at Cheshire, id. ¶ 6, allegedly denied the request and indicated that Mr. Michalski would be called to the dental department when it was his turn, id. ¶ 25.

         Mr. Michalski allegedly continued to send requests to be seen by a dentist due to severe, throbbing pain, inability to chew or sleep, and cuts to his tongue caused by the sharp edge of the exposed tooth that needed a crown. Id. ¶ 27. He allegedly received no responses. Id.

         On February 27, 2017, Dr. Lichtenstein and Ms. Borchert allegedly called Mr. Michalski to the dental department and took x-rays of his teeth. Id. ¶ 28. The x-rays allegedly revealed that nine of his teeth had cavities in addition to the exposed root canal. Id. Dr. Lichtenstein allegedly filled three cavities and informed Mr. Michalski that he could not see him again until September 2017. Id. ¶ 29. Mr. Michalski allegedly asked Dr. Lichtenstein to fill the remaining six cavities because he had waited so long to be seen by a dentist and was in pain, but Dr. Lichtenstein allegedly refused. Id. ¶ 30. Dr. Lichtenstein also allegedly refused to fabricate a crown for tooth number 30. Id. ¶ 31. He allegedly indicated that he had a policy of not placing crowns. Id.

         On June 12, 2017, Dr. Lichtenstein allegedly filled three more cavities but refused to fill the last three cavities during that visit even though the cavities caused Mr. Michalski pain. Id. ¶¶ 33-36. Dr. Lichtenstein and Ms. Borchert also allegedly refused to fix his exposed root canal on that date. Id. ¶ 35. Ms. Borchert allegedly indicated that Mr. Michalski would be called back to have the last three cavities filled when it was his turn. Id.

         On June 18, 2017, one of the fillings in Mr. Michalski's front canine tooth allegedly fell out. Id. ¶ 37. On July 10, 2017, someone from the dental department allegedly replaced the missing filling. Id. The new filling allegedly fell out again around August 2017. Id. ¶ 41. Mr. Michalski allegedly filed a request to have the filling replaced, but he received no response. Id. When he saw Ms. Borchert in the medical department, he allegedly mentioned the missing filling, but she responded, “Oh, that's not that bad, ” and then allegedly rushed off before he could speak to her further. Id. ¶ 42.

         On July 25, 2017, Mr. Michalski allegedly filed a health services review form about the need for a crown on tooth number 30 to cover his exposed root canal. Id. ¶ 38; Fourth Am. Compl. Ex. F, ECF No. 25-1 at 36 (DOC Health Services Review Form (submitted July 25, 2017)). The form allegedly was “Returned without Disposition” with the stated reason that “you have an appointment scheduled and will be called when it is your turn.” Fourth Am. Compl. Ex. F, ECF No. 25-1 at 36 (DOC Health Services Review Form (returned Aug. 10, 2017).

         On August 28, 2017, Mr. Michalski allegedly filed another health services review form regarding the missing filling from his front canine tooth. Fourth Am. Compl. Ex. F, ECF No. 25-1 at 37 (DOC Health Services Review Form (submitted Aug. 28, 2017). The health services review form allegedly was returned again without disposition, with the stated reason that “you have an upcoming appointment please be patient.” Id. (returned Sept. 1, 2017).

         On October 16, 2017, Mr. Michalski allegedly submitted another health services review form, regarding the denial of dental care. Fourth Am. Compl. ¶ 46. On November 7, 2017, and again on November 16, 2017, Mr. Michalski allegedly sent requests to Ms. Borchert regarding his severe dental pain and the lack of dental treatment. Id. ¶ 47-48. He allegedly attached a timeline to his November 7 request, detailing his dental issues and attempts at obtaining treatment. Fourth Am. Compl. Ex. I, ECF No. 25-1 at 44-48 (DOC Inmate Request Form (submitted Nov. 7, 2017)). Mr. Michalski allegedly filed another health services review form on November 30, 2017. Fourth Am. Compl. ¶ 49.

         On December 1, 2017, Ms. Borchert allegedly came to Mr. Michalski's housing unit and informed him that he was scheduled to be seen in the dental department and that Dr. Lichtenstein had just returned from a month-long vacation. Id. ¶¶ 51-53.

         On December 4, 2017, Mr. Michalski allegedly received responses from Mr. Borchert to two of his requests for dental treatment. Id. ¶ 54. She allegedly indicated that he had only had two small cavities left to be filled and did not mention anything about the exposed root canal. Id.

         The next day, Mr. Michalski allegedly wrote a request to Ms. Borchert regarding her December 1 visit to his unit and other issues. Id. ¶ 55. The reviewer-allegedly Ms. Borchert-returned the form the same day, stating:

You are scheduled that is what I am required to do. You may send request[s] as often as you feel you want to they will all say you are scheduled.
-This is getting out of control.-
-Firm, Fair and Consist[e]nt- Thanks.

Fourth Am. Compl. Ex. O, ECF No. 25-1 at 55 (DOC Inmate Request Form (returned Dec. 5, 2017)).

         “During all the back and forth with [Ms. Borchert] while trying to obtain dental care, ” another of Mr. Michalski's fillings allegedly fell out. Fourth Am. Compl. ¶ 56. In addition, further decay allegedly developed in the teeth with cavities that needed to be filled. Id.

         On December 6, 2017, Mr. Michalski allegedly received a response to the health services review form submitted on October 16. Id. ¶ 60. This response allegedly returned his request with the disposition of “no further action” and the stated reason that Mr. Michalski had communicated in writing and verbally with the dental assistant on numerous occasions and that he had an upcoming appointment. Fourth Am. Compl. Ex. H, ECF No. 25-1 at 38 (DOC Health Services Review Form (returned Dec. 6, 2017)). The reviewer allegedly indicated that Mr. Michalski only had two abrasions and one cavity left to be treated, which Mr. Michalski alleges is incorrect, and the reviewer allegedly did not mention the exposed root canal. Id.

         Sometime during December 2017, Mr. Michalski allegedly had a court proceeding on a habeas petition he allegedly filed. Id. ¶ 61. At the December 2017 court hearing, Mr. Michalski alleges that Judge Levine stated, “If the DOC removed his crown, DOC owes him a crown!” Id. At that time, Mr. Michalski allegedly entered into an agreement for Dr. Richard Benoit, the Director of Dental Services for DOC, to place a crown on his tooth number 30. Id. Mr. Michalski alleges that he withdrew his habeas petition based on this alleged agreement. Id.

         On December 15, 2017, a dentist allegedly filled Mr. Michalski's remaining cavities, and Ms. Borchert allegedly explained that Dr. Benoit would take care of his exposed root canal. Id. ¶ 62.

         On January 25, 2018, the dental cement in tooth number 30 allegedly fell out exposing a steel screw which cut Mr. Michalski's tongue. Id. ¶ 63. A unit officer allegedly made Ms. Borchert aware of Mr. Michalski's condition, and she allegedly stated that Dr. Benoit was aware of the issue and that she would try to see Mr. Michalski that day. Id. ¶¶ 64-65. When Mr. Michalski's correctional treatment officer allegedly sent an e-mail to Dr. Lichtenstein about Mr. Michalski's condition, Dr. Lichtenstein allegedly responded by “stating that he ‘encourages inmates to purchase motrin from commissary for dental discomfort.'” Id. ¶ 66. Mr. Michalski alleges that he could not chew on the exposed screw and that he “feared getting food lodged into the deep crater, which could become infected and ab[s]cessed.” Id. ¶ 67.

         On March 19, 2018, Dr. Benoit allegedly came to Cheshire to place a crown on Mr. Michalski's tooth. Id. ¶ 69. “However, he only filled the tooth back in and put a temporary cap on the tooth rather than a crown.” Id. Dr. Benoit also allegedly made notes in Mr. Michalski's dental record, including “need crown per habeas court.” Fourth Am. Compl. Ex. S, ECF No. 25-1 at 69 (DOC Dental Record, note by Richard Benoit (Mar. 9, 2018)).

         On March 29, 2018, Mr. Michalski was allegedly transferred to the Osborn in Somers, Connecticut. Notice of Change of Address, ECF No. 14 (Apr. 9, 2018).

         Richard Furey was allegedly the Health Services Administrator at Osborn “at all times relevant to this complaint.” Fourth Am. Compl. ¶ 12. Mr. Furey, who “has the authority and obligation to ensure adequate treatment of inmates at [Osborn], ” allegedly “had the knowledge that the [P]laintiff entered DOC with a crown which was removed by DOC staff, and denied to be replaced by DOC staff” and “had knowledge of the agreement at Habeas Court about the crown.” Id. ¶ 105. At some point, Mr. Michalski allegedly filed a medical grievance regarding his tooth number 30 needing to be crowned. Id. Mr. Furey allegedly answered his grievance by stating that “DOC follows Medicaid guidelines and Medicaid doesn't pay for crowns.” Id.

         B. Procedural History

         On December 13, 2017, Mr. Michalski, then incarcerated at Cheshire, sued five individuals associated with the DOC in their individual and official capacities: Scott Erfe, Warden at Cheshire; Scott Semple, then DOC Commissioner; Dr. Bruce Lichtenstein, a dentist employed by Correctional Managed Health Care (“CMHC”) and stationed at Cheshire who treated Mr. Michalski; Stephanie McClain, Medical Grievance Coordinator employed by CMHC and stationed at Cheshire; and Yvonne, a dental assistant employed by CMHC and stationed at Cheshire who treated Mr. Michalski and whose last name was unknown to Mr. Michalski at the time. Complaint, ECF No. 1 (Dec. 13, 2017). Mr. Michalski made claims of deliberate indifference to his serious medical needs in violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment against all Defendants. Id. ¶ 73-78.

         On January 29, 2018, Mr. Michalski, proceeding pro se, filed his first motion to amend/correct the Complaint to correct and add information. Mot. to Amend/Correct, ECF No. 7 (Jan. 29, 2018).

         On February 23, 2018, the Court granted the motion to amend/correct. Order Granting Mot. to Amend/Correct, ECF No. 9 (Feb. 23, 2018). The First Amended Complaint was docketed on the same day. Am. Compl., ECF No. 10 (Feb. 23, 2018).

         On March 2, 2018, Mr. Michalski moved to withdraw all claims against Ms. McClain. Mot. to Withdraw, ECF No. 11 (Mar. 2, 2018).

         On March 13, 2018, construing this motion as one for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1), the Court granted the motion and dismissed Ms. McClain from the case. Order Granting Mot. to Withdraw, ECF No. 12 (Mar. 13, 2018).

         On March 14, 2018, Mr. Michalski filed a motion for judicial review, asking the Court to issue an Initial Review Order and commence service on the Defendants. Mot. for Judicial Review, ECF No. 13 (Mar. 14, 2018).

         On April 9, 2018, Mr. Michalski notified the Court that he had been transferred to Osborn on March 29, 2018. Notice of Change of Address, ECF No. 14 (Apr. 9, 2018).

         On May 24, 2018, Mr. Michalski filed a “motion to articulate, ” again asking the Court to issue an Initial Review Order. Mot. to Articulate, ECF No. 15 (May 24, 2018).

         On August 17, 2018, the Court denied Mr. Michalski's motions for the Court to issue an Initial Review Order and directed Mr. Michalski to file a Second Amended Complaint to correct deficiencies in the First Amended Complaint. Order, ECF No. 16 (Aug. 17, 2018).

         On August 29, 2018, Mr. Michalski filed his Second Amended Complaint listing all four remaining Defendants in the caption and including descriptions of all ...


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