Licari v. Doe

RANDAL LICARI, Plaintiff, v. DOE, et al., Defendants.

CIVIL No. 3:21-cv-1054 (OAW)

United States District Court, D. Connecticut

September 2, 2022

RULING ON DEFENDANTS' MOTION TO DISMISS

Omar A. Williams, United States District Judge

Randal Licari (“Plaintiff”), a former inmate at Cybulski Correctional Institution (“Cybulski”) in Somers Connecticut, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Amended Complaint, ECF No. 22 (hereinafter “Complaint”). Plaintiff alleges deliberate indifference to his health and safety in violation of his Eighth Amendment rights and seeks an award of monetary damages against the following defendants: Dr. Doe, Dr Clemence, Captain Doe, Lieutenant Ramos, and Correctional Officers (“C.O.s”) Shultz, Cowles, Jerry, and VanNostrand.^[1]

Defendants have moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss ECF No. 19-1. Defendants assert that dismissal is warranted because Plaintiff has not served them in their individual capacities or alleged cognizable Eighth Amendment claims. Id.

The court finds that it would be inappropriate to dismiss Plaintiff's Complaint due to his failure to serve Defendants in their individual capacities. However, because Plaintiff has not alleged facts which could establish a violation of his Eighth Amendment rights, the court hereby GRANTS Defendants' motion to dismiss.

I. Standard of Review

To withstand a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 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 Atlantic 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.” Id. The plausibility standard is not a probability requirement; the pleading must show, not merely allege, that the pleader is entitled to relief. Id. 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. Id. “To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.'” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555). However, when reviewing a motion to dismiss, the court must draw all reasonable inferences in the non-movant's favor. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012). The review is confined to the facts alleged in the operative complaint unless the court elects to convert the motion to dismiss to a motion for summary judgment, an action not taken here. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

II. Background

On August 15, 2020, while incarcerated under the authority of the Connecticut Department of Corrections, Plaintiff underwent back surgery at UConn Health Facility (“UConn Health”). Am. Compl., Statement of Case at ¶ 1, ECF No. 22. This surgery has caused Plaintiff lasting and "immeasurable" pain to his lower back and legs. Id. at ¶ 3. To manage this pain, Plaintiff has often visited UConn Health to receive spinal injections. Id. at ¶¶ 3-4.

On the morning of June 2, 2021, C.O.s Shultz and Cowles transferred Plaintiff from Cybulski to UConn Health for a spinal injection. Id. at ¶¶ 4-5. Officers Shultz and Cowles were in a hurry this morning because they wanted to conduct another prisoner transport that afternoon to receive overtime pay. Id. at ¶ 5. Immediately after Plaintiff received his spinal injection, officers escorted Plaintiff back to the transport van and departed to Cybulski. Id. at ¶ 6. Halfway between UConn Health and Cybulski, Plaintiff informed officers that he could no longer feel his legs or feet. Id. at ¶ 7. In response, Officer Shultz told Plaintiff to "relax." Id. at ¶ 8.

When Plaintiff arrived at Cybulski, Officers Shultz and Cowles, along with another C.O., Officer Jerry, obtained a wheelchair for Plaintiff. Id. at ¶ 9. The officers then haphazardly moved Plaintiff from the transport van to his wheelchair. Id. This rough handling left scratches and “black and blue marks” on Plaintiff's back. Id.

Once in a wheelchair, Plaintiff spoke over the telephone to a Cybulski physician, Dr. Clemence. Id. at ¶ 10. Apprised of Plaintiff's symptoms, Dr. Clemence determined that Plaintiff should stay in a medical waiting area until feeling returned to his legs. Id.

After Plaintiff waited one and a half to two hours without feeling returning to his legs, Dr. Clemence ordered for Plaintiff to be transported back to UConn Health. Id. at ¶ 11. Instead of calling for an ambulance, Dr. Clemence permitted Plaintiff to be taken in a transport van. Id. Plaintiff was again subjected to rough handling while being loaded into and out of the transport van, this time from C.O.s Jerry and VanNostrand . Id. at ¶¶ 12-13.

Upon arriving at UConn Health, Plaintiff was taken to a bed for evaluation. Id. at ¶ 14. After remaining in bed for four to five hours, feeling returned to Plaintiff's legs. Id. Plaintiff then was returned to Cybulski without further incident. Id.

III. Discussion

Section 1983 of Title 42 of the United States Code creates a private federal cause of action against any person, acting under color of state law, who deprives an individual of their federally protected rights. Rehberg v. Paulk, 566 U.S. 356, 361 (2012). In his amended complaint, Plaintiff asserts that each of the Defendants has incurred §1983 liability by violating his Eighth Amendment rights. Am. Compl. at p. 2, ¶ 4.

Defendants raise four arguments in support of dismissing Plaintiff's amended complaint. First, they note that Plaintiff has served Defendants only in their official capacity, and thus they are entitled to sovereign immunity under the Eleventh Amendment. Mot. to Dismiss at 3-5, ECF No. 19-1. Second, Defendants argue that Plaintiff's claims against supervisory correctional officers are premised on an unviable theory of respondeat superior. Id. at 5-6. Third, Defendants contend that Plaintiff's claims against non-supervisory correctional officers allege mere negligence which is insufficient to establish a violation of his Eighth Amendment rights. Id. at 8-9. Fourth, and finally, Defendants assert that Plaintiff's claims against physicians reflect mere disagreement over treatment which forms an insufficient basis to establish an Eighth Amendment violation. Id. at 9-12.

A. Defendants' Individual and Official Capacities

Plaintiff, thus far, has served each Defendant by serving the Connecticut Office of the Attorney General. ECF No. 7. In his complaint, Plaintiff seeks only money damages. Am. Compl. at p. 10, ¶¶ 1-7. Defendants argue that service through the Attorney General is insufficient to sue them in their individual capacities and, because the Eleventh Amendment doctrine of sovereign immunity prohibits actions against state officials in their official capacity for the recovery of money damages, the Complaint should be dismissed. Mot. to Dismiss at 5, ECF No. 19-1.

In Bogle-Assegai v. Connecticut, the United States Court of Appeals for the Second Circuit reviewed relevant federal and state service statutes and concluded the Connecticut Office of the Attorney General has authority to accept service on behalf of state officials in their official, but not individual, capacities. 470 F.3d 498, 507-08 (2006). To serve a Connecticut state official with proper notice of a federal lawsuit, a plaintiff must: (1) personally deliver a summons and complaint; or (2) leave a summons and complaint at the official's dwelling/abode. Id.^[2] Applying Bogle-Assegai's precedent, Plaintiff clearly failed to serve Defendants in their individual capacities. And, since Plaintiff is suing Defendants exclusively in their individual capacities, Defendants are correct in noting that they, effectively, haven't been served at all. It does not follow though, that Plaintiff's failure to serve Defendants in their individual capacity warrants dismissal of this action at this time.

Federal Rule of Procedure 4(m) provides:

If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

(Emphasis added).

Rule 4(m) confers this Court with discretion to grant an extension to serve process even without a showing of good cause. Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007).

In his response to Defendants' motion to dismiss, Plaintiff does not endeavor to argue that he had good cause for failing to serve Defendants in their individual capacities. Pl.'s Opp., ECF No. 20. Regardless, several mitigating factors weigh against dismissing the action for Plaintiff's failure to serve Defendants in their individual capacities.

First, Defendants do not argue that their defense was prejudiced in any way by Plaintiff's failure to serve them in their individual capacities. Mot. to Dismiss at 3-5. Since Defendants allege no harm, affording Plaintiff an opportunity to “fix [his] service error [would] comport[ ] with the notion that litigation should be resolved on the merits, if possible. Williams v. State of Connecticut, 3:15-cv-627 (VAB), 2016 WL 4472935, at *6 (D. Conn. August 24, 2016).

Second the Defendants identified in Plaintiff's...