Lucas v. Garland

• Docket Number: C. A. 23-225WES
• Decision Date: 24 July 2023
• Parties: KEVIN LUCAS, Plaintiff, v. MERRICK B. GARLAND, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

1

KEVIN LUCAS, Plaintiff, v. MERRICK B. GARLAND, et al., Defendants.

C. A. No. 23-225WES

United States District Court, D. Rhode Island

July 24, 2023

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE

On June 1, 2023, pro se^[1] Plaintiff Kevin Lucas, a former detainee at the Wyatt Detention Facility (“Wyatt”) and now a resident of Connecticut filed this civil action against the Attorneys General of the United States (Merrick Garland) and of Rhode Island (Peter Neronha), the United States Marshal of Rhode Island (Wing Chau), the Wyatt and five of its employees/representatives (the former warden, Daniel Martin; a grievance coordinator Yaniris Paulino; a physician, Dr. Edward Blanchette; a nurse practitioner, Holly Fernandes; and the health service administrator, Ron LaBonte). All are sued in both their individual and official capacities. In reliance on 42 U.S.C § 1983, but claiming that all Defendants were acting under color of federal law, Plaintiff seeks money damages based upon his receipt of what he asks the Court to declare was constitutionally inadequate health care in violation of the Fifth, Eighth and Fourteenth Amendments.

Factually, Plaintiff alleges that, during his pretrial detention at the Wyatt, he reinjured his left shoulder rotator cuff (on which he had previously had surgery) in December 2020, but that the Wyatt did not provide him with the cortisone injection and physical therapy that an outside orthopedic surgeon (to whom the Wyatt had sent him) recommended (but did not order or prescribe) on August 2, 2021. Plaintiff contends that some of Defendants were aware of the recommendation but delayed providing the treatment for seven months until March 4, 2022, when Plaintiff was transferred to a Federal Bureau of Prisons (“FBOP”) facility in New York. Plaintiff also claims that FBOP personnel told him that the Wyatt refused to release his medical record to the FBOP facility and that the FBOP personnel refused to make a second request. Subsequently (the date is not disclosed in the complaint), Plaintiff was released from custody and, by the summer of 2022, was offered and/or was receiving the recommended treatment. He was not a prisoner at the time of the filing of the complaint.

Plaintiff's complaint^[2] was accompanied by an application to proceed in forma pauperis (“IFP”), which has been referred to me. While the IFP application establishes financial eligibility, based on this referral, I am required to screen the complaint pursuant to 28 U.S.C. § 1915(e)(2). Rondeau v. State of New Hampshire, 201 F.3d 428, 1999 WL 1338348, at *1 (1st Cir. Feb. 29, 1999) (per curiam) (table decision) (screening for non-prisoner plaintiff pursuant to 28 U.S.C. § 1915(e)(2)). This requires the Court to determine inter alia whether the complaint is sufficient to state a plausible claim against the named Defendants based on delayed medical treatment. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

I. Background

From February 2020 until March 4, 2022, Plaintiff was detained at the Wyatt, a private pretrial detention facility operated under contract with the United States Marshals Service (“USMS”),^[3] on the order of a federal magistrate judge in the District of Connecticut, while awaiting trial on the federal charge of trafficking in heroin. See United States v. Lucas, 3:19-cr-00219-JCH, ECF No. 51 (D. Conn. Feb. 26, 2020). Prior to being detained, Plaintiff had had surgery in Bridgeport, Connecticut, to repair a rotator cuff injury. ECF No. 3-1 ¶ 16. While detained, in December 2020 Plaintiff reinjured the shoulder. Id. ¶ 17.

Wyatt staff arranged for an x-ray, id. ¶¶ 18-19, and issued a sling for Plaintiff to use. Id. ¶¶ 20, 27 & Ex. C. On March 12, 2021, Defendant Blanchette ordered Plaintiff to be sent for an MRI, which order request was forwarded to USMS; the request was approved and the MRI was performed on June 23, 2021. Id. ¶ 22 & Exs. A, A1, B, E, E1, H. With USMS approval, id. Exs. F1, H1, Wyatt staff arranged for an orthopedic consultation; on August 2, 2021, Plaintiff was examined by an outside orthopedic surgeon, Dr. David Cicerchia. Id. ¶ 23 & Ex. F. According to Dr. Cicerchia's note, he reviewed the MRI with Plaintiff and noted “no evidence of recurrent full-thickness tear” and “no evidence of labral tear,” but “[i]mpingement syndrome of left shoulder” and “[t]raumatic incomplete tear of left rotator cuff.” Id. Ex. F. Dr. Cicerchia “recommended cortisone injection and formal physical therapy but this needs to be approved before performed . . . . He will call if it is approved.” Id. ¶ 23 & Ex. F (emphasis added). Dr. Cicerchia's note further indicates that “[n]o orders of the defined types were placed in this encounter.” Id. Ex. F. The note contains no directive regarding the timing for treatment, except that it should be after approval is procured. A note dated August 22, 2021, confirms that “[n]o urgent surgery needed” and “[r]ec: cortisone injection and P.T.” Id. ¶ 24 & Ex. F1.

While at the Wyatt, Plaintiff did not receive the recommended injection and physical therapy despite, as he alleges, “constant pain.” Id. ¶¶ 25-26. Plaintiff alleges that the Wyatt's physician and nurse practitioner, Defendants Blanchette and Fernandes, were aware of his MRI and were aware of an alleged medical principle that “cartilage lost bone displacement leading to osteoarthritis and other complications of delayed treatment that would lead to permanent damage of the left shoulder rotator cuff for the lack of the prescribed treatment.” Id. ¶¶ 28-31. He also claims that they disregarded and interfered with Dr. Cicerchia's recommended treatment. Id. ¶¶ 54-55.

In November 2021, Plaintiff filed a grievance about the Wyatt's failure to offer him a cortisone injection and physical therapy. ECF No. 3-1 ¶¶ 32-33 & Ex. G. On December 28, 2021, Defendant LaBonte denied the grievance because the requested care had not been denied by USMS; this response urged Plaintiff to “utilize the in process tools to accomplish your desired information gathering” and that “[w]e will reach out to the USMS to determine next steps.” Id. ¶ 38 & Ex G2. The complaint alleges that Defendant LaBonte failed to “reach out” to USMS. Id. ¶ 62. Plaintiff accuses the former warden, Defendant Martin, of denying the appeal from Defendant LaBonte's denial of his grievance without stating a reason other than that he agreed with the reason in Defendant LaBonte's denial. Id. ¶ 65 & Ex. G3. The complaint also alleges that errors were made with the completion and processing of the grievance forms by Defendant Paulino^[4] and LaBonte,^[5] such as omitting/deleting the grievance case number. Id. ¶¶ 34-39, 4345, 58-62.

Plaintiff alleges that the U.S. Marshal for Rhode Island, Defendant Chau, and the former Wyatt warden, Defendant Martin, were aware of the orthopedic surgeon's recommendation for a cortisone injection and physical therapy. Id. ¶¶ 46, 47. Beyond the conclusory assertion that they acted with deliberate indifference, and Defendant Martin's denial of the grievance appeal, there are no factual allegations about Defendants Chau and Martin. There are no factual allegations at all regarding U.S. Attorney General Garland or Rhode Island Attorney General Neronha. Id. ¶¶ 67-68, 86-87.

In March 2022, Plaintiff was transferred to another FBOP detention facility in New York. Id. ¶¶ 48-49. He alleges that the Wyatt generally and Defendant LaBonte specifically failed to transmit his medical records to that facility and that staff at that facility refused to ask for them again. ECF No. 3-1 ¶¶ 49-53, 83. However, while Plaintiff alleges that he signed a medical release form, id. ¶ 50, his exhibits show only a medical release form that is unsigned. Id. Ex. I2. This claim is based on what Plaintiff was told at the New York facility, id. ¶¶ 49-51, 53; he also alleges that in April 2022, his shoulder was x-rayed again at the New York facility, id. ¶ 52, as well as that the New York facility approved the use of a “[b]lue [s]ling,” as had been prescribed at the Wyatt, id. Exs. I1, I3.

Subsequently, in August 2022, Plaintiff's attachments to the complaint indicate that he had been receiving medical treatment in the community in Bridgeport, Connecticut, including physical therapy (which “give[s] him some relief”) and that he was offered steroid injections but refused at least once. ECF No. 3-1, Ex J (“Patient was offered corticosteroid injection last visit but refused.”). In November 2022, Plaintiff was discharged from physical therapy because he “[m]et goals.” Id. Ex. J2. These records do not reflect any “complications of delayed treatment” or “permanent damage of the left shoulder rotator cuff for the lack of the prescribed treatment.” See ECF No. 3-1 ¶¶ 30, 31.

Plaintiff asks the Court to declare that Defendants violated his constitutional rights; for relief, he asks for an award of compensatory and punitive damages, as well as costs and attorney's fees (although he is pro se). Id. at 9-10. There is no claim for an injunctive remedy.

II. Standard Of Review and Analysis

“The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2) . . . is identical to the standard used when ruling on a Rule 12(b)(6) motion.” Diaz v. Rhode Island, C. A. No 21-208-JJM-PAS, 2021 WL 2000478, at *1 (D.R.I. May 19, 2021). “To state a claim on which relief may be granted, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at *2 (internal quotation marks omitted). The plausibility inquiry requires the court to distinguish “the complaint's factual allegations (which must be accepted as...