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Rosen v. Pallito

United States District Court, D. Vermont

August 5, 2015

EARL ROSEN, IV, Plaintiff,
ANDREW PALLITO, Commissioner of the Vermont Department of Corrections, and CORRECT CARE SOLUTIONS, Defendants.



Plaintiff Earl Rosen, IV, an inmate in the custody of the Vermont Department of Corrections ("DOC"), brings this action against DOC Commissioner Andrew Pallito and prison health care provider Correct Care Solutions ("CCS"). Rosen claims that Defendants have failed to provide him with adequate mental health and medical care. He also objects to the DOC's programming requirements, which are allegedly preventing him from being granted parole. Now before the Court are Commissioner Pallito's partial motion to dismiss, Rosen's motion for leave to file a Second Amended Complaint, and Rosen's motion for an order to re-implement certain medical treatment. For the reasons set forth below, the Commissioner's partial motion to dismiss is granted in part and denied in part, the motion for leave to amend is granted in part and denied in part, and the motion for re-implementation of certain medical treatment is denied.

Factual Background

For the limited purpose of ruling on the pending motion to dismiss, the facts alleged in Rosen's pleadings will be accepted as true. As of January 2015 Rosen was 29 years old. He is currently diagnosed with Schizoaffective Disorder, Bipolar Disorder, and a Generalized Anxiety Disorder. Before his incarceration, he received mental health treatment at the Howard Center in Burlington, Vermont. He has also appeared as a party in the Chittenden County Mental Health Court.

Rosen is currently serving a sentence for, among other things, engaging in "prohibited acts" in violation of 13 V.S.A. § 2632(a)(8). While the parties dispute whether the violation constituted a sexual offense, the statute defines "prohibited acts" as "prostitution, lewdness or assignation." 13 V.S.A. § 2632(a)(8). Rosen was initially incarcerated at Northeast Regional Correctional Facility ("NERCF") on or about June 23, 2011, and transferred to Northern State Correctional Facility ("NSCF") in March 2013.

The DOC has designated Rosen as having a "serious functional impairment" under 28 V.S.A. § 906. A "serious functional impairment" is defined, in part, as "a disorder of thought, mood, perception, orientation or memory... which substantially impairs judgment, behavior, capacity to recognize reality... and which substantially impairs the ability to function within the correctional setting." 28 V.S.A. § 906. Defendant CCS has developed a mental health treatment plan, which Rosen claims is inadequate and not in accordance with the treatment plan outlined by the Howard Center.

While in prison, Rosen has received several Disciplinary Reports ("DRs") and has at times been placed in segregation. He attributes his disciplinary problems to mistreatment of his mental health issues. For example, in February 2012 he experienced auditory hallucinations and was soon thereafter disciplined for fighting. For punishment, the DOC placed him in segregation. Rosen alleges that Defendants should have known his auditory hallucinations would likely result in violence, yet did nothing to attend to his deteriorating mental health prior to that time. Rosen further alleges that DOC personnel failed to consult with a medical professional to determine whether segregation was appropriate.

Once in segregation, Rosen's mental health condition worsened. He began to harm himself, and reported to prison personnel his inability to sleep and continued auditory hallucinations. The Amended Complaint claims that he was held in segregation for longer than was deemed medically appropriate by the DOC's own mental health staff.

In addition to his mental health issues, Rosen has suffered a physical injury while in prison. On October 20, 2012, he injured his foot playing basketball. He complained about the injury, and has undergone two x-rays. Rosen alleges that because of inadequate prison medical care, the foot never healed and continues to hurt.

Rosen also claims that the DOC is requiring him to participate in unnecessary and harmful programming. The DOC and Commissioner Pallito have required Rosen to participate in the Vermont Treatment Program for Sexual Abusers ("VTPSA"). The Amended Complaint asserts that participation in this program "will cause Plaintiff significant harm." ECF No. 40 at 6.[1] Rosen also cites a 2013 state court hearing in which the prosecution, defense, and the judge determined that he needed mental health treatment rather than sex offender treatment.

In September 2014, the Parole Board told Rosen that he would not be considered for parole because he was not participating in the VTPSA. In October 2014, just one month later, Defendants allegedly changed their position and claimed that Rosen still needed to be evaluated to determine whether he needs VTSPA. Defendants also claimed that Rosen had refused to be evaluated. Rosen alleges that he was never offered an evaluation until October 2014.

The Amended Complaint sets forth seven Counts. Count I alleges cruel and unusual punishment in the form of inadequate mental health care. Count II claims discrimination on the basis of Rosen's mental health disability in violation of the Title II of the Americans with Disabilities Act ("ADA"). Count III alleges that placement in solitary confinement and requiring participation in the VTPSA both constitute cruel and unusual punishment. Count IV claims that solitary confinment violates the Rehabilitation Act, while Count V alleges that solitary confinement violates the Vermont Fair Housing and Public Accommodations Act. Count VI asserts medical malpractice. Finally, Count VII claims a failure to follow Rosen's treatment plan in violation of 28 V.S.A. §§ 906-07.

For relief, Rosen seeks both damages and injunctive relief, including proper treatment of his mental health and physical conditions.


I. Commissioner Pallito's Partial Motion to Dismiss

Now before the Court is Commissioner Pallito's partial motion to dismiss. The Commissioner is not moving for the dismissal of Rosen's medical and mental health care claims. As to all other causes of action, Commissioner Pallito argues lack of subject matter jurisdiction and/or for failure to state a claim.

A. Non-medical ADA and Rehabilitation Act Claims

With respect to Rosen's claims against Commissioner Pallito under the ADA and Section 504 of the Rehabilitation Act, the parties agree that such claims may not be brought against the Commissioner in his individual capacity.[2]

In his official capacity, the Commissioner asserts that Rosen has failed to state a claim for which relief may be granted. When ruling on such a motion, the Court must accept the factual allegations set forth in the Amended Complaint as true and draw all reasonable inferences in favor of the Plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive the motion, the Plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

To state a claim under Title II of the ADA, Rosen must establish that: (1) he is a qualified individual with a disability; (2) the Defendant is subject to the ADA; and (3) he was denied the opportunity to participate in or benefit from the Defendant's services, programs, or activities, or was otherwise discriminated against by reason of his disability. Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97 (2d Cir. 2014).[3] "[T]he phrase services, programs, or activities' has been interpreted to be a catch-all phrase that prohibits all discrimination by a public entity.'" Noel v. ...

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