Diaz v. Wall

          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 ...