United States District Court, D. Connecticut
INITIAL REVIEW ORDER AND RULING ON MOTIONS
A. BOLDEN UNITED STATES DISTRICT JUDGE
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
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.”).
Order addresses multiple motions filed by Mr. Michalski and
includes an Initial Review Order on his Fourth Amended
reasons set forth below, Mr. Michalski's motion for leave
to file a Fourth Amended Complaint is
Michalski's claims under the Eighth Amendment for
monetary damages against Warden Scott Erfe, Commissioner
Rollin Cook,  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.
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.
other pending motions will be DENIED as
FACTUAL AND PROCEDURAL BACKGROUND
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 over what remained of tooth
number 30. Id.
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).
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. ¶
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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)).
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.
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.
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.
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.
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.
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)).
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).
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.”
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.
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).
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).
March 2, 2018, Mr. Michalski moved to withdraw all claims
against Ms. McClain. Mot. to Withdraw, ECF No. 11 (Mar. 2,
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,
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).
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).
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).
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).
August 29, 2018, Mr. Michalski filed his Second Amended
Complaint listing all four remaining Defendants in the
caption and including descriptions of all ...