Pierce v. Semple

          RULING ON DEFENDANTS' MOTION TO DISMISS [ECF NO. 18]

          Kari A. Dooley United States District Judge

         On 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].^[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.

         In its 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;^[2] 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].

         Defendants 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.

         STANDARD OF REVIEW

         “A 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.

         To 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).

         Legal 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, ^[3]or matters of which the Court can take judicial notice. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).

         Although 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)).

         FACTUAL ALLEGATIONS^[4]

         Plaintiff 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.

         In 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.

         On 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.

         When he 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.

         After a 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. Subsequently, ...