United States District Court, D. Rhode Island
ORDER
WILLIAM E. SMITH CHIEF JUDGE UNITED STATES DISTRICT COURT
On
February 12, 2018, Magistrate Judge Patricia A. Sullivan
filed a Report and Recommendation (“R&R”)
(ECF No. 40) recommending that the Court grant in part and
deny in part Defendants' Motion To Dismiss (ECF No. 35) .
After carefully reviewing the R&R and the relevant
papers, and having heard no objections, the Court ACCEPTS the
R&R in its entirety and adopts the reasoning set forth
therein. Accordingly, Defendants' Motion To Dismiss is
GRANTED in part and DENIED in part, as outlined by Magistrate
Judge Sullivan, see R. & R. 18-19.
REPORT
AND RECOMMENDATION
In a
hand-written complaint that is very difficult to decipher or
understand, pro se Plaintiff Samuel Diaz, a prisoner
at the Adult Correctional Institutions (“ACI”),
has sued eleven employees of the Rhode Island Department of
Corrections (“RIDOC”), all but one in both their
individual and official capacities
(“Defendants”).[1] Plaintiff's allegations
loosely fall into three distinct claims. First, he alleges
that, while incarcerated, he should have received medication
for attention deficit disorder (“ADHD”). Second,
he claims that, despite having serious mental illness, over
many years while serving multiple short sentences at the ACI,
he has persistently been held in excessively harsh
disciplinary confinement for a substantial portion of the
time incarcerated, which has exacerbated his mental illness.
Third, he seeks damages for an incident at the ACI on
November 23, 2016, when he alleges he was sprayed with
“O.C., ”[2] forced to clean waste without proper
gloves or cleaning products and left without a mattress for
two days and without water for six. For a remedy, Plaintiff
asks the Court to award him compensatory damages for pain and
suffering, and punitive damages for “every year that my
life has gotten worse from these individuals not treating me,
leading to a new injury I have to live
with.”[3] ECF No. 1 at 8. The complaint does not
seek injunctive relief or a declaratory remedy.
Pursuant
to Fed.R.Civ.P. 12(b)(6), Defendants' motion to dismiss
challenges the viability of all of Plaintiff's claims
against each of them, in both their individual and official
capacities. ECF No. 35.
I.
Background
Plaintiff's
pleading alleges that he has been in and out of the ACI since
2004 and that at least one of the sentences was for only six
months. ECF No. 1 at 16 ¶ 1; ECF No. 20 ¶ 2-3.
Mindful of the liberality and leniency required in reviewing
and striving to understand Plaintiff's complaint,
Rodi v. S. New England Sch. of Law, 389 F.3d 5, 13
(1st Cir. 2004), and because this criminal history is a
matter of public record and is pertinent to the issues
presented by Defendants' motion, I begin with a brief
summary of the sentences that have resulted in the imposition
of time to serve at the ACI.[4]
Plaintiff's
first adult brush with the law appears to have occurred in
2004, when he got a thirty-day sentence for reckless driving.
In 2006, he received sentences of twenty-two and two months
respectively for breaking and entering and possession of
controlled substance. In 2008 and again in 2009, he received
sentences to serve of eighteen months and then one year for
drug-related offenses. In 2012 and 2013, he received
sentences of thirty months and one year for domestic assault,
breaking and entering and possession of controlled
substances. In 2015, he was sentenced to serve six months for
domestic assault; while in 2016, he was sentenced to
one-hundred eighty-one days for vandalism/domestic, eighteen
months for threats to public officials, and twenty months for
violation of a no-contact order. In 2017, he was sentenced to
thirty days for driving without a license. In January 2018,
he received a six-month sentence for possession with intent
to deliver a controlled substance.
Plaintiff's
in-and-out pattern of incarceration not only is material to
the allegations in the complaint, but has also affected the
travel of Defendants' motion to dismiss. The motion was
initially filed by Defendant Calise only and served on
Plaintiff at the ACI; however, three weeks prior, Plaintiff
had been released from the ACI and had properly notified the
Court of his change of address. ECF No. 33. Based on the
failure properly to serve Plaintiff, the motion was denied
without prejudice. ECF No. 34. On October 25, 2017, the
motion to dismiss was refiled, this time on behalf of all
Defendants, and was served on Plaintiff at his address in the
community. ECF No. 35. Plaintiff failed to file a timely
objection; however, shortly after the objection was due,
Plaintiff notified the Court that he was back at the ACI. ECF
No. 36. In light of the possibility that Plaintiff was
unaware of the second motion to dismiss, despite its having
been properly served on his address of record, the Court
issued a show cause order, which was served on Plaintiff at
the ACI. ECF No. 37. In his timely response filed on December
12, 2017, Plaintiff represented that he had not received the
motion to dismiss but did intend to object. ECF No. 38. He
also advised that he might be released again in as little as
two weeks. Id. However, this did not occur; on
January 8, 2018, the Court received his one-sentence
objection[5] sent from the ACI. ECF No. 39. As far as
the Court's record reveals, Plaintiff remains
incarcerated at the ACI.
II.
Standard of Review
Rule
12(b)(6) permits the Court to dismiss an action if it fails
to state a claim upon which relief can be granted.
Fantini v. Salem State College, 557 F.3d 22, 26 (1st
Cir. 2009). To survive a motion to dismiss, a complaint must
give the defendant fair notice of what the claim is and the
grounds upon which it rests, and allege a plausible
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544-55, 559 (2007). A plaintiff must plead
sufficient “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). The “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. In evaluating a Fed.R.Civ.P. 12(b)(6) motion, the Court
must accept as true all well-pled facts alleged in the
complaint and draw all reasonable inferences in the
pleader's favor. Rodriguez-Reyes v.
Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013). The
Court need not credit bald assertions or unverifiable
conclusions. Penalbert-Rosa v. Fortuno-Burset, 631
F.3d 592, 595 (1st Cir. 2011). A plaintiff's asserted
facts must possess enough heft to show that he is entitled to
relief. Twombly, 550 U.S. at 557. Nevertheless, when
a plaintiff is pro se, the court must review his
complaint with leniency. Rodi v, 389 F.3d at 13;
Ahmed, 118 F.3d at 890.
Plaintiff's
failure to file more than a cursory opposition to
Defendants' motion to dismiss does not mean that the
motion should be summarily granted because it is not opposed
by well-developed legal arguments. Vega-Encarnacion v.
Babilonia, 344 F.3d 37, 41 (1st Cir. 2003) (“If
the merits are at issue, the mere fact that a motion to
dismiss is unopposed does not relieve the district court of
the obligation to examine the complaint itself to see whether
it is formally sufficient to state a claim.”). The
Court must perform a substantive analysis to determine
whether or not the complaint states a legally sufficient
claim. That analysis follows.
III.
Facts and Analysis of Claims
A.
Failure to Treat ADHD
In his
complaint, Plaintiff alleges that, when he was first
committed to the ACI on August 8, 2004, he notified staff
that he had been diagnosed with ADHD as a child. ECF No. 1 at
16 ¶ 1. However, this information was not documented
until 2012. ECF No. 1 at 16 ¶ 1. More recently, when he
was seen by Dr. Cerbo, described in the complaint as
RIDOC's director of mental health, Plaintiff claims he
was told that he could not be treated with the medication he
requested. ECF No. 1 at 16 ¶ 2. Plaintiff asserts he was
denied medication because of Dr. Cerbo's failure to
“check his history of illness” and that Dr.
Cerbo's treatment fell below the standards of reasonable
medical care. ECF No. 1 at 16-17. Relatedly, Captain Adams is
charged with having learned of Plaintiff's ADHD diagnosis
from Plaintiff's mother, but having failed to advise
other ACI staff. ECF No. 1 at 26 ¶ 1. Finally, Plaintiff
alleges that Director Wall is responsible for the denial of
ADHD medication based on his overall responsibility for
RIDOC, and that Assistant Director Weeden is responsible for
not taking action regarding treatment of Plaintiff's ADHD
over the course of thirteen years. ECF No. 1 at 20 ¶ 1;
ECF No. 1 at 28 ¶ 1.
Read
with liberality, Plaintiff's primary medically-based
cause of action, asserted against Dr. Cerbo, amounts to a
medical malpractice claim under state law based on an alleged
breach of the duty to provide adequate medical
care.[6] ECF No. 1 at 16-17 ¶¶ 5-6.
Plaintiff alleges that Dr. Cerbo's care fell below the
standard of reasonable medical practice, and that he failed
to exercise ordinary skill, care and diligence. ECF No. 1 at
17 ¶¶ 6-9. It is well settled that a claim of
medical negligence does not amount to an allegation of
constitutional proportions. Wilson v. Seiter, 501
U.S. 294, 305 (1991) (mere negligence does not satisfy
“deliberate indifference” standard). Thus, this
claim fails to implicate the Eighth Amendment's
prohibition against “cruel and unusual punishment,
” which is the proper source of federal jurisdiction
over claims based on the constitutional entitlement to
adequate medical treatment. Farmer v. Brennan, 511
U.S. 825, 832 (1994); Kosilek v. Spencer, 774 F.3d
63, 82 (1st Cir. 2014) (en banc), cert. denied, Kosilek
v. O'Brien, 135 S.Ct. 2059 (2015); Martinez v.
Blanchette, C.A. No. 14-537L, 2015 WL 9315562, at *2-4
(D.R.I. Oct. 29, 2015), adopted, 2015 WL 9412531
(D.R.I. Dec. 22, 2015). Consistent with this interpretation
of the pleading, Plaintiff does not allege that any qualified
physician, in or out of the ACI, prescribed medication for
treating ADHD after he was a child;[7]nor does he claim that
prescribed medication was denied by Defendants. Rather, he
concedes that he was provided with mental health treatment
but that the treating medical professional (Dr. Cerbo)
advised that he “can't treat” Plaintiff with
ADHD medication. ECF No. 1 at 16 ¶2. Further, the
complaint specifically alleges that Plaintiff did receive
other prescribed mental health medication. ECF No. 1 at 16
¶ 4 (describing treatment with Zoloft).
With no
viable federal question claim against Dr. Cerbo, this Court
lacks jurisdiction over the allegations against him, pursuant
to 28 U.S.C. § 1331; further, the complaint is devoid of
any suggestion that diversity jurisdiction pursuant to 28
U.S.C. § 1332 might be available. However, there are
other federal question claims that I recommend survive this
motion to dismiss (discussed infra). If this
recommendation is adopted, the Court must determine whether
the potential medical malpractice claim against Dr. Cerbo,
based on the failure to treat Plaintiff for ADHD in
accordance with the applicable standard of care, may remain
in federal court, consistent with the Court's exercise of
supplemental jurisdiction. See United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966). Supplemental
jurisdiction may be exercised over a state-law claim
“whenever it is joined with a federal claim and the two
claims ‘derive from a common nucleus of operative
fact' and the plaintiff ‘would ordinarily be
expected to try them both in one judicial
proceeding.'” Vera-Lozano v. Int'l
Broad., 50 F.3d 67, 70 (1st Cir.1995). Supplemental
jurisdiction requires at least a “loose factual
connection” between the federal and state claims.
Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir.1995).
Whether to exercise supplemental jurisdiction lies within the
broad discretion of the district court. Cruz-Caraballo v.
Rodriguez, 113 F.Supp.3d 484, 493 (D.P.R. 2014);
Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co.,
281 F.Supp.2d 311, 312 (D. Me. 2003).
Here,
the potential medical malpractice claim against Dr. Cerbo
would focus on the testimony of medical experts comparing Dr.
Cerbo's treatment of Plaintiff, in terms of medications
prescribed, with the applicable standard of care. These
factual issues are totally unrelated to the factual
allegations underpinning Plaintiff's other claims, which
focus on the incident of November 23, 2016, and the
conditions and duration of Plaintiff's disciplinary
segregation.[8] Because Plaintiff's surviving federal
claims and the medical malpractice claim derive from very
different sets of facts, they do not constitute “one
constitutional case.” Young v. Wall, 359 F.Supp.2d 84,
94 (D.R.I. 2005). Accordingly, I recommend that this Court
decline to exercise supplemental jurisdiction over the only
claim against Dr. Cerbo and that it (and he) be dismissed
from this case, without prejudice to an action being filed in
state court.
The
claim against Captain Adams for his failure to notify ACI
staff that Plaintiff's mother had told him that Plaintiff
had ADHD is equally unavailing. The gravamen of
Plaintiff's medically-based cause of action is that ACI
medical staff prescribed other medication for Plaintiff,
instead of the medication he wanted. There is no suggestion
that Plaintiff himself was prevented from telling ACI staff
about his childhood ADHD diagnosis. Moreover, the complaint
alleges that, by 2012, childhood ADHD had been documented by
ACI staff. ECF No. 1 at 16 ¶ 1. No conceivable injury -
never mind one of constitutional proportions - could flow
from Captain Adams' omission to advise staff of this
information from Plaintiff's mother. I recommend that
this claim against Captain Adams be dismissed.
Finally,
in addition to failing to state a viable federal claim, the
ADHD medical treatment claims for damages against Director
Wall and Assistant Director Weeden, acting in their official
capacities, founder in the face of the well-established
principle that “neither a state agency nor a state
official acting in his official capacity may be sued for
damages in a section 1983 action.” Will v. Mich. Dept.
of State Police, 491 U.S. 58, 70-71 (1989); Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003) (“No
cause of action for damages is stated under 42 U.S.C. §
1983 against a state, its agency, or its officials acting in
an official capacity.”). The medical treatment
individual capacity claims against them also fail because the
pleading alleges no direct involvement on their part in the
events that form the foundation for the claims. See Callahan
v. Wall, C.A. No. 16-160 S, 2017 WL 3447895, at *4-5 (D.R.I.
Aug. 11, 2017) (dismissing individual capacity claim of
failure to provide health care against Director Wall due to
lack of plausible facts permitting the inference that he was
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