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Thompson v. Prison Health Care

United States District Court, Second Circuit

April 30, 2013

Daniel L. Thompson, Plaintiff,
Prison Health Care et al, Defendants.

REPORT AND RECOMMENDATION (Docs. 13, 14, 15, 19, 21, 24, 29, 30, 38)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Daniel L. Thompson, proceeding pro se, has filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants, officials at the Vermont Department of Corrections ("DOC"), violated his constitutional rights after he received improper and ineffective treatment before and after shoulder surgery for a torn rotator cuff suffered while in DOC custody. (Doc. 27.)[1] Since the commencement of this action, many motions have been filed.

Upon the filing of the original Complaint (Doc. 5), numerous Motions to Amend followed (Docs. 19, 20, 21), which were ultimately granted (Doc. 26). Thompson also sought the appointment of counsel (Doc. 19-1 at 2), which was denied (Doc. 26 at 6-7). Other pending motions-including Motions to Dismiss by certain Defendants (Docs. 13, 14), Motions for Summary Judgment by Thompson (Docs. 15, 19, 24), and a motion by Thompson requesting that he be permitted to respond to the motions to dismiss using the Amended Complaint (Doc. 21)-predate the filing of the Amended Complaint. Since the filing of the Amended Complaint (Doc. 27), certain Defendants have moved to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 29). Thompson filed a response to the pending Motion to Dismiss in which he again sought the appointment of counsel (Docs. 33, 38), as well as a "Motion for Admission of Undisputed Facts from Party Opponents" (Doc. 30).

For the reasons that follow, I recommend that the most recent Motion to Dismiss filed by Defendants Pallito, Hale, and Shana (Doc. 29) be GRANTED. Although I recommend dismissal, I also recommend that counsel for these Defendants, the Vermont Attorney General's Office, be ordered to release forthwith to Thompson all reports regarding his medical treatment, and to assist Thompson in ascertaining the identities of all individuals involved in his treatment, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997).

As to the remaining motions, I recommend that Thompson's "Motion for Admission of Undisputed Facts from Party Opponents" (Doc. 30) be DENIED. I further recommend that all motions filed prior to the Amended Complaint (Docs. 13, 14, 15, 19, 21, 24) be DENIED AS MOOT. Finally, Thompson's Motion to Appoint Counsel (Doc. 38) should be DENIED without prejudice.

Facts and Procedural Background

Daniel Thompson is a sixty-one year old inmate in the custody of the DOC. (Doc. 27 at 1.) On September 26, 2009, Thompson began his imprisonment at Chittenden Community Correctional Facility[2] after a brief hospitalization following a car accident allegedly caused by his intoxication. ( Id. at 2.) By Thompson's description, he was charged with "DUI accident resulting, " and the initial period of his incarceration was approximately nine to ten months "until [he] posted bail at a later date." ( Id. ) During this time, he was "detoxing from alcohol, " which caused "confusion, tremors, hallucinations, sweats, disorientation, [his] left eye [to swell] shut, migraines, trouble walking, slurred speech, uncertainty of [his] whereabouts, as well as other physical ailments." ( Id. ) Thompson brought these problems to the attention of officers and medical staff at the facility, noting that he "was afraid of [his] mental condition, and that [he] was not being cared for adequately." ( Id. ) He "asked for help repeatedly, but [his] repeated polite requests fell on deaf ears." ( Id. )

On the third day of his incarceration, after spending the first two days in segregation, Thompson suffered a seizure. ( Id. at 3.) The seizure put Thompson into a "semi-conscious state" during which he recalled "at least three or four officers, " including Shana (a Defendant here), "standing over [him] laughing." ( Id. ) Shana in particular was "holding [a] video camera, " apparently filming Thompson. ( Id. ) During the episode, Shana, along with the other guards, were saying things such as "He's faking it. Save a bed for him. If he does go anywhere, he'll be back soon." ( Id. ) This taunting "happened several times." ( Id. )

Later that day, Thompson was taken to the emergency room at Fletcher Allen Health Care. ( Id. ) When a guard suggested that Thompson would be taken back to the prison facility, Thompson's treating physician recommended he remain at the hospital. ( Id. ) After the officer overruled the physician and began to wheel Thompson out of the hospital, he "apparently" suffered another seizure and woke up back in the emergency room. ( Id. ) Thompson was again made to leave over the physician's objection. ( Id. ) Finally, after he suffered a third seizure, Thompson was allowed to remain at the hospital for "about four and one-half days." ( Id. at 4.) After a battery of "MRIs, X-rays, blood tests, and whatever else was performed, " Thompson was returned to the prison facility "with a massively torn rotator cuff among other injuries which were not present following the alleged DUI accident, but which came to light after the seizure and the fall in the hallway." ( Id. )

A physician, who Thompson identifies as "Doctor Endgress, " was called to the facility to address the shoulder injury, and "wrote an order to schedule shoulder surgery within one week" and "prescribed [Thompson] some sort of pain medication." ( Id. ) "A few days later, " Thompson saw another doctor at the prison who agreed that he had torn his rotator cuff due to his seizure and fall, but declined to provide pain medication because the doctor was "not a fan" of prescribing Vicodin in a prison. ( Id. ) According to Thompson, he "wasn't even prescribed Motrin." ( Id. ) Thompson continued to "put in numerous medical slips" requesting pain medication, but he "never heard back" on any of these requests. ( Id. )

Thompson identifies a range of physical problems he experienced until he was allowed to have shoulder surgery. ( Id. at 5.) He was "using a crutch to walk around" making "just walking... very difficult for me." ( Id. ) He was also "suffering from migraines" and having headaches "mostly every day." ( Id. ) His "great" shoulder pain and its associated limitations meant that he could not use his left arm because it was in a sling, and thus he was unable to "take care of [him]self in the most basic of ways, " including hygienically and nutritionally.[3] ( Id. ) Furthermore, his left eye was "swelled shut, " presumably from the fall, and his shoulder pain meant that "sleep was very limited." ( Id. ) In mid-December 2009, after waiting over two and one-half months, Thompson had his shoulder surgery. ( Id. )

After the surgery, the hospital doctor informed Thompson that he needed to see a physical therapist within "four or five days" to "start moving [his] arm for [him]." ( Id. ) Otherwise, the arm could "lock up and freeze, " which would cause him "a lot more trouble." ( Id. ) The doctor also prescribed medication for Thompson. ( Id. ) Upon Thompson's return to prison, guards confiscated his hospital paperwork and returned him to his cell rather than an infirmary for continued recovery. ( Id. ) The nurse at the facility refused to assist Thompson with his "cryo cuff, " which he was supposed to wear after the surgery. ( Id. at 6.) Unable to lie on his bunk bed while wearing the cuff, Thompson ultimately had his cellmate move his mattress to the floor so he could sleep on it, even though he remained in "excruciating pain." ( Id. ) According to Thompson, several commanding officers and shift supervisors noticed his difficulties, as he "made them aware that [he] was suffering from a disability" and that they had refused him "reasonable accommodation." ( Id. ) Their "most common response" was: "I'll look into it and have next shift get back to you." ( Id. ) This never happened. ( Id. ) Thompson "put in several medical slips on this matter, " and was told that they would not handle his housing problems.[4] ( Id. ) After the "first couple of weeks" since his surgery, Thompson grew more concerned that he had not had any physical therapy or "been seen or even contacted by the medical staff" at the prison. ( Id. at 7.) Thompson continued to sleep on the mattress on his cell floor "for at least six weeks, " though "[i]t may have been longer" since he "cannot recall a precise timeframe." ( Id. )

After "several more medical requests to see the doctor, " Thompson was called to the infirmary. ( Id. ) Thompson recited his various ailments for a nurse, including his need for physical therapy for his arm and shoulder. ( Id. ) "Four or five days" after this meeting with the nurse, Thompson was allowed to have a "face-to-face sit-down with the doctor." ( Id. ) During this meeting, the doctor was, by Thompson's description, "very standoffish, short, and [did] not really want[] to listen to what [Thompson] wanted to say." ( Id. ) Thompson's recollection of the meeting was that the doctor told him that he seemed to be "doing okay" and his "medication should be holding [him] well." ( Id. ) Thompson recalls feeling as though he was not "being taken seriously in what [he] was trying to say." ( Id. ) When Thompson asked the doctor specifically about his lack of physical therapy, the doctor proceeded to demonstrate a particular shoulder rotation and tell Thompson to engage in that exercise to "keep it from locking up." ( Id. at 8.) Thompson repeated his request for "physical therapy from a qualified physical therapist, " but the doctor was again "vague" and "didn't really have an answer." ( Id. ) After more discussion on the subject, the doctor ended the appointment. ( Id. )

Thompson continued to make verbal requests for medical attention. ( Id. ) After waiting over two additional months, Thompson was transported out of the prison facility to see a physical therapist in South Burlington. ( Id. ) After taking initial measurements and noting Thompson's pain, the physical therapist stated that she could not "do much of anything" for Thompson on that day other than "assess" his condition. ( Id. at 9.) She noted that Thompson "should have been seen right after surgery" and expressed an interest in his continuing to be seen "two or three times per week." ( Id. ) At the end of the appointment, the therapist printed out "a couple of exercises" for Thompson to "do at the jail"; prison guards later confiscated this paperwork and denied Thompson's requests for its return. ( Id. ) This was Thompson's "one and only physical therapy session." ( Id. )

A week later, Thompson was given the exercise paperwork by a prison nurse, who wished him "the best of luck" with his recovery. ( Id. ) Thereafter, Thompson began attempts to "self-rehabilitate" his shoulder, while renewing requests to prison officials for medical attention. ( Id. ) Around May 2010, Thompson began to exercise and has made modest gains in strength since, but his "shoulder still lagged behind the rest of [his] body" and at times he "truly felt as if [he] was causing more injury to it." ( Id. ) By the end of June 2010, Thompson was able to post bail and leave the prison facility.[5] ( Id. at 10.) He remained at home until mid-October 2010, when he was sentenced to three-to-fifteen years' imprisonment. ( Id. ) He is presently incarcerated at the Northwest State Correctional Facility ("NWSCF") serving this sentence. ( Id. at 1.)

According to Thompson, he "still live[s] with this trauma to the present day." ( Id. at 10.) In addition to the "debilitating effects" of his numerous physical symptoms ( id. at 1), Thompson claims to suffer "psychological effects" of the injury that "are just as devastating, if not more[, ] than the physical effects" ( id. at 10). He now has posttraumatic stress disorder and "severe" anxiety disorder as a consequence. ( Id. ) Thompson also notes that he has occasional nightmares of his "left arm being amputated at the shoulder, " which cause him to awaken to "make sure [his] left shoulder is still properly attached." ( Id. ) Medical staff at NWSCF "continue to ignore [Thompson's] pleas to treat [his] injury despite [his] making numerous verbal pleas and putting in several medical forms." ( Id. at 1.)

On October 1, 2012, Thompson filed his original Complaint in this Court (Doc. 5), which was subsequently superseded by the Amended Complaint on January 22, 2013 (Doc. 27). In the Amended Complaint, Thompson brings suit against the following Defendants in both their official and individual capacities: Andrew Pallito (the Vermont Commissioner of Corrections); "Prison Health Care Staff (Corizon') at CCCC (Names Unknown to Plaintiff)"; "Shana [phonetically] (Presently a Caseworker at NWSCF but used to be a Corrections Officer at CCCC)"; "Multiple Unknown Vermont Department of Corrections Officers at CCCC"; "Greg Hale (then Superintendent at CCCC and present Superintendent at NWSCF)"; and "Prison Health Care Staff (Corizon') at NWSCF (Names Unknown to Plaintiff)."[6] (Doc. 27 at 1.) According to Thompson, Hale ignored "at least one" request form directed to him, in which Thompson "alerted" Hale to the fact that "staff continually refused to explain the grievance process to [him]." ( Id. at 4.) After sending a similar request to Pallito, Thompson claims he "never heard back." ( Id. ) Thompson also claims that Pallito generally "fail[ed] to provide department staff with adequate training" in light of the response to his injury, as outlined above. ( Id. at 2). Thompson demands a jury trial and seeks "$3, 500, 000.00 in total damages." ( Id. at 1.)


Title 42 U.S.C. § 1983 provides a civil claim for damages against "[e]very person who, under color of any statute... of any State... subjects, or causes to be subjected, any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws...." 42 U.S.C. § 1983. "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). To succeed on a § 1983 claim, a plaintiff must allege that: "(1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges." Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)); see also Albright v. Oliver, 510 U.S. 266, 271 (1994).

As stated, there are many pending motions that must be addressed. Defendants Pallito, Hale, and "Shana" (collectively, "DOC Defendants") have moved to dismiss Thompson's § 1983 claim under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (Doc. 29.) Thompson has also filed a "Motion for Admission of Undisputed Facts from Party Opponents." (Doc. 30.) Before the filing of the Amended Complaint, Thompson filed numerous Motions for Summary Judgment (Docs. 15, 19, 24) as well as a Motion to Respond to the Motions to Dismiss using the Amended Complaint (Doc. 21), and Defendants filed two Motions to Dismiss (Docs. 13, 14). Finally, Thompson has moved for the appointment of counsel. (Doc. 38.)

I. Motion to Dismiss for Failure to State a Claim

DOC Defendants have moved to dismiss Thompson's § 1983 claims on multiple grounds. (Doc. 29.) First, they argue that all claims against them in their official capacities should be dismissed because such suits are barred by Vermont's Eleventh Amendment sovereign immunity. ( Id. at 3-4.) Second, DOC Defendants maintain that the official capacity claims should be dismissed because they are not "persons" as contemplated by the text of § 1983. ( Id. at 4-5.) Third, they argue that all claims against them should be dismissed for Thompson's failure to allege their personal involvement in the claimed constitutional deprivation. ( Id. at 5-11.) Fourth, and finally, DOC Defendants argue that Thompson's claim ...

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