United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION TO DISMISS [ECF NO.
A. Dooley United States District Judge
November 13, 2018, Plaintiff Andrew Pierce, an inmate who was
confined at the MacDougall-Walker Correctional Institution
(“MWCI”), brought this action against
Commissioner of the Department of Correction
(“DOC”) Scott Semple, DOC Program Director
Colleen Gallagher, MWCI Warden William Mulligan, and Dr.
Omprakash Pillai. Compl. [ECF No. 1]. In his verified complaint,
Plaintiff alleged claims against all four defendants in their
individual and official capacities for violating his rights
under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq., the
Rehabilitation Act, and the Eighth Amendment to the United
States Constitution pursuant to 42 U.S.C. § 1983,
Article First, § 20 of the Connecticut Constitution, 1
and Connecticut General Statutes §§§ 46a-71,
46a-75, and 46a-77. Id. at 1, 5.
Initial Review Order dated November 16, 2018, the Court
dismissed Plaintiff's ADA and Rehabilitation Act claims
against all Defendants in their individual capacities with
prejudice but permitted these claims to be brought against
the Defendants in their official capacities to the extent the
Plaintiff sought prospective injunctive relief. The court
dismissed without prejudice to repleading Plaintiff's
Eighth Amendment claims against Defendants Semple, Mulligan
and Gallagher; and permitted to proceed as plausible
Plaintiff's Eighth Amendment deliberate indifference to
medical needs claim as against Dr. Pillai in his individual
capacity for damages and in his official capacity for
injunctive relief. [ECF No. 7 at 13-14].
filed a motion to dismiss (1) all claims for equitable relief
due to lack of subject matter jurisdiction, and (2)
Plaintiff's Eighth Amendment deliberate indifference
claims against Dr. Pillai for failure to exhaust the relevant
administrative remedies. [ECF No. 18]. The Plaintiff
responded on September 25, 2019. [ECF No. 26]. For the
reasons that follow, Defendants' motion is GRANTED in
part and DENIED in part.
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). A plaintiff who seeks to invoke the
authority of the court bears the burden of establishing the
court's subject matter jurisdiction by a preponderance of
the evidence. Id. In determining whether the
plaintiff has met this burden, “the court must take all
facts alleged in the complaint as true and draw all
reasonable inferences in favor of [the] plaintiff.”
Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171
(2d Cir. 2006). In addition, a district court “may
refer to evidence outside the pleadings” when
“resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1)[.]”
Makarova, 201 F.3d at 113.
survive a motion to dismiss filed pursuant to Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. “The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 557).
conclusions and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, ” are not entitled to a presumption of
truth. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). Nevertheless, when
reviewing a motion to dismiss, the court must accept
well-pleaded factual allegations as true and draw “all
reasonable inferences in the nonmovant's favor.”
Interworks Sys. Inc. v. Merch. Fin. Corp., 604 F.3d
692, 699 (2d Cir. 2010). [D]ocuments outside the complaint
are generally off-limits on a motion to dismiss, ”
unless they are incorporated in the complaint by reference,
integral to the complaint, or matters of which the Court can
take judicial notice. See Goel v. Bunge, Ltd., 820
F.3d 554, 559 (2d Cir. 2016).
a pro se complaint must be liberally construed
“to raise the strongest arguments it suggests, ”
pro se litigants are nonetheless required to
“state a plausible claim for relief.” Walker
v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal
quotation marks and citations omitted). So too must a pro
se litigant be able “to allege facts demonstrating
that her claims arise under this Court's ...
jurisdiction.” Gray v. Internal Affairs
Bureau, 292 F.Supp.2d 475, 477 (S.D.N.Y. 2003). Absent
such a showing the “complaint must be dismissed.”
Id. (citing Fed.R.Civ.P. 12(h)(3)).
suffers from renal failure which requires him to undergo
dialysis treatment three times per week. [ECF No. 1 at ¶
30]. In 2008, the DOC decided that all prisoners in need of
dialysis treatment would be housed in MWCI because it would
reduce the need for transportation. Id. at ¶
37. The DOC cited this policy change as a “cost saving
measure.” Id. at ¶ 38. Dr. Omprakash
Pillai, who was Plaintiff's primary care physician at
MWCI, ignored known dangers, countermanded medical orders by
specialists, and allowed Plaintiff to develop an opiate
addiction to treat pain rather than follow corrective
surgery. Id. at 12.
2015, Plaintiff, as a level-one prisoner, required the least
need for restrictive housing. See Id. at
¶¶ 33, 35-36. However, Defendants placed him in
MWCI, a level-four facility, which generally houses inmates
with greater security risks or lengthier sentences.
Id. at ¶¶ 31, 34. Defendants refused to
transfer him out of MWCI because of his need for dialysis
treatment. Id. at ¶ 36. Defendants denied
Plaintiff's attempt to gain access to vocational
services. See Id. at ¶¶ 81-82.
October 1, 2018, while undergoing dialysis treatment,
Plaintiff exhibited symptoms of infection, and he was rushed
to the emergency department at UConn Health Center where he
was placed on an antibiotic regimen. Id.
¶¶ 57-59. Two days later, he underwent surgery to
remove the infected tissue and install a temporary catheter.
Id. at ¶¶ 60-61. On October 4, doctors
placed a “wound vacuum” (“VAC”)3 on
his open surgical wound. Id. at ¶ 63. His
catheter was removed on October 5, and a permanent catheter
was provided on October 8. Id. at ¶¶ 64,
66. Plaintiff was discharged from UConn on October 9.
Id. at ¶ 67. His treating physician, Dr. Shu,
ordered that a VAC be replaced upon his return to MWCI in
order to properly effectuate the healing of his surgical
wounds and decrease pain. Id.
returned to MWCI on October 9, officials informed Plaintiff
that they did not have a replacement VAC and sent him back to
his housing unit. Id. at ¶ 68. Instead,
Plaintiff was placed on Oxycodone, a powerful opiate, for his
pain. Id. at ¶ 69. The next day, he was
readmitted to the medical unit at MWCI, pending his
application for a replacement VAC. Id. at ¶ 70.
On October 11, he was evaluated by the Dr. Pillai, who
informed Plaintiff that he had cancelled Dr. Shu's order
for a VAC and would instead prescribe Oxycodone. Id.
at ¶ 71. Plaintiff told Dr. Pillai that he was not
comfortable taking heavy doses of opiates for thirty days and
would prefer the VAC. Id. at ¶ 72.
few weeks on Oxycodone, Plaintiff began noticing signs of
addiction. Id. at ¶ 73. Plaintiff informed
medical staff at MWCI about his condition and requested that
Dr. Pillai honor Dr. Shu's order for a VAC, but he was
kept on the same treatment regimen. Id. at ¶
74. Plaintiff went to the medical unit and spoke with a
nurse, requesting that he be taken off Oxycodone.
Id. at ¶ 75. The nurse agreed. Id.