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Many v. Vermont Department of Corrections and Centurion Healthcare

United States District Court, D. Vermont

November 13, 2019

Joshua Many, Plaintiff,
v.
Vermont Department of Corrections and Centurion Healthcare, Defendants.

          REPORT AND RECOMMENDATION AND ORDER (DOCS. 6, 10)

          John M. Conroy, United States Magistrate Judge.

         Plaintiff Joshua Many, proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants, the Vermont Department of Corrections (DOC) and Centurion Healthcare (Centurion) (collectively, “Defendants”). Many alleges that when he entered DOC custody in May 2017, he had an existing health condition consisting of shotgun pellets lodged in his leg and claims that-although he has requested care for pain associated with the pellets-Defendants are acting in collusion to deny him adequate healthcare. (Doc. 6 at 1-2.) For relief, Many seeks a hearing, an “immediate medical injunction, ” appointment of counsel, and leave to amend to seek monetary damages. (Id. at 2-3.)

         In addition to Many's requests for counsel and leave to amend, presently before the Court is Defendants' Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 10.) Although the Court informed Many of the importance of responding to a motion by Defendants, warning him that failure to respond may result in dismissal of his case (see Doc. 4 at 3-4), he has nevertheless not responded to the Motion.

         Concluding that Many has failed to allege facts sufficient to state a plausible claim against Centurion or the DOC, I recommend that the Motion to Dismiss (Doc. 10) be GRANTED and the Complaint (Doc. 6) be DISMISSED for failure to state a claim. However, I recommend Many be afforded leave to amend as further discussed below. Many's request for appointment of counsel (id. at 3) is DENIED at this time.

         Factual and Procedural Background

         The sparse facts alleged in Many's three-page Complaint (Doc. 6) are supplemented by the information gleaned from the attachments to the Complaint, consisting of DOC grievance forms.[1] Many entered the custody of the DOC on May 30, 2017, with “an existing health issue after being shot with a shotgun just prior to arrest.” (Id. at 1.) He alleges Defendants are responsible for his safety and health care. (Id.)

         On July 2, 2017, he submitted a request for care to address “issues of pain and lead pellets in his leg and hip area.” (Id. at 1-2.) After receiving no care, on July 28, 2018, Many filed a grievance because the condition was becoming more painful. (Doc. 6-2.) On July 29, 2018, he submitted a second grievance addressing the same issue. (Doc. 6-4.) On August 9, 2018, he again sought medical attention, complaining of pain related to his condition. (Doc. 6 at 2.) August 20, 2018, he submitted a third grievance (id.), and, on September 22, 2018, an appeal to the Director of Health Services. (Doc. 6-7.)

         On November 7, 2018, Many's appeal was “sustained and he was to see an outside provider for medical care.” (Doc. 6 at 2; see also Doc. 6-10 (“We have requested an appointment with the provider be scheduled to reconsider your request for an appointment with an outside specialist. . . . Your grievance is sustained.”).) Because he did not receive an outside appointment and he continued to suffer pain and increasing symptoms, Many filed this action, alleging he has exhausted all remedies. (Doc. 6 at 2.) On March 20, 2019, the Court granted Many's request to proceed in forma pauperis and his Complaint was filed. (See Docs. 1, 4, 6.)

         Analysis

         I. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

         In evaluating whether to dismiss a complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the court tests the pleading for “facial plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also 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. This does not require a plaintiff to provide “detailed factual allegations” to support his claims, Twombly, 550 U.S. at 555, but allegations that “are so vague as to fail to give the defendants adequate notice of the claims against them” are subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009); see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”).

         In assessing the adequacy of the pleadings, a court must accept all factual assertions as true and draw all reasonable inferences in favor of the plaintiff. Lanier v. Bats Exch., Inc., 838 F.3d 139, 150 (2d Cir. 2016). A complaint is properly dismissed where, as a matter of law, “the allegations in [it], however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. Because Many is representing himself, in addition to accepting his factual allegations as true, the Court is also required to read his Complaint liberally and construe it to raise the strongest possible argument. Harris v. Miller, 818 F.3d 49, 56-57 (2d Cir. 2016) (per curiam).

         II. Section 1983

         Under 42 U.S.C. § 1983, a plaintiff may bring suit “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.'” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alterations in original) (quoting 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.” Id. The Supreme Court has identified two elements of a § 1983 claim: “a plaintiff [(1)] must allege the violation of a right secured by the Constitution and laws of the United States, and [(2)] must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

         Section 1983 does not itself create or establish a federally protected right; instead, it creates a cause of action to enforce federal rights created elsewhere, such as a federal constitutional right. Albright v. Oliver, 510 U.S. 266, 271 (1994). Although Many does not cite to a specific constitutional provision that Defendants violated, because Many was a state prisoner when his claims arose, this Court construes Many's claim as alleging that Defendants deprived him of his Eighth Amendment right to adequate medical care. Under the test established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), the inquiry in a § 1983 action like this is generally “whether the treating physician or other prison official was deliberately indifferent to a prisoner's serious medical needs.” Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994). This test has objective and subjective components. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The objective prong looks to the severity of the alleged deprivation while the subjective prong asks whether the prison official acted with a sufficiently culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003).

         Under the objective prong, the Court must determine “whether the prisoner was actually deprived of adequate medical care” and “whether the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). To determine whether a deprivation reaches the requisite threshold, these two inquiries are “tailored to the specific circumstances of each case.” Smith, 316 F.3d at 185. Several factors are relevant to the seriousness of the medical condition: whether a reasonable doctor or patient would comment on the condition; whether the prisoner's daily activities are affected by the condition; and whether the condition causes chronic and substantial pain. Salahuddin, 467 F.3d at 280. If the prisoner complains of a delay or interruption in treatment, the seriousness inquiry “focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.” Id. (alteration and internal quotation marks ...


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