Neary v. Naqvi
| Decision Date | 27 July 2017 |
| Docket Number | CIVIL CASE NUMBER: 3:14-cv-001631-VLB |
| Court | United States District Courts. 2nd Circuit. United States District Court (Connecticut) |
| Parties | CHRISTOPHER NEARY, Plaintiff, v. SYED JOHAR NAQVI, M.D. sued in individual capacity and official capacity, et al., Defendants. |
Plaintiff, Christopher Neary ("Neary"), is a paroled former inmate who developed gynecomastia1 while in prison. Neary seeks declaratory relief, injunctive relief, and monetary damages for his claims of deliberate indifference to a serious medical need and cruel and unusual punishment in violation of the Eighth Amendment as applied to the states under the Fourteenth Amendment. The operative Amended Complaint contains allegations against three groups of Defendants: treating physicians, Utilization Review Committee members, and Wardens from various facilities where he was housed. Defendants seek dismissal for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief may be granted. For the foregoing reasons, Defendants' motion is DENIED IN PART and GRANTED IN PART.
Neary entered the custody of the Connecticut Department of Corrections ("CDOC") in April 2006 and remained in custody at the time he filed his complaint nearly two years ago in October of 2014. . Neary has been housed at several facilities within the CDOC system. With respect to relevant dates, Neary was first housed at McDougall Walker Correctional Institution ("MWCI") from August 2013 until December 21, 2014, when CDOC transferred him to Osborn Correctional Institution ("OCI"). [Dkt. 83 ¶¶ 27-28]. He remained at OCI from December 22, 2014 until November 24, 2015, when CDOC transferred him to Enfield Correctional Institution ("ECI"). Id. ¶¶ 29-30. Neary stayed at ECI for only four days. Id. ¶ 31. On November 30, 2015, CDOC transferred him to Corrigan Ragdowski Correctional Center where he remained for 21 days. Id. ¶ 32-33. Then on December 22, 2015, he was again transferred to Willard Cybulski Correctional Institution ("WCCI") where he stayed until September 2016. Id. ¶ 35; see [Dkt. 101 at 4]. In September 2016, CDOC transferred Neary to the Walter Brooks House, a male-only work release program with 67 beds. [Dkt. 101 (Opp'n Mot. Dismiss) at 4 n.3]. He stayed there for three months and in December 2016, CDOC discharged him and released him on parole where he now lives at an approved private residence. Id. at 4 n.4.
During the time of his incarceration at CDOC facilities, he consumed regular meals provided by CDOC. [Dkt. 83 ¶ 36]. These meals contained soy and/or soy byproducts. Id. While incarcerated he developed symptoms of and was diagnosedwith gynecomastia, a hormonal disorder that causes "enlargement of the glandular breast tissue." Id. ¶¶ 18, 20. Gynecomastia can be caused by several factors including "high levels of estrogen resulting from ingestion of phytoestrogen—a component of soy food products that has estrogen-like properties." Id. ¶ 22.
The Defendants can be split into three categories of individuals: treating physicians, reviewing physicians, and CDOC Wardens. The first category is comprised of Syed Johar Naqvi, M.D. ("Dr. Naqvi") and Lavern A. Wright ("Dr. Wright"), the physicians employed by the University of Connecticut ("UConn") Health Center who directly treated Neary. Dr. Naqvi treated Neary from January 19, 2014 until December 21, 2014, while he was housed at MWCI. See id. ¶¶ 57, 167]. Dr. Wright treated Neary from March 16, 2015, until November 25, 2015, while he was housed at OCI. See id. ¶¶ 169, 199.
The second group is Johnny Wu, M.D. ("Dr. Wu") and John Does 1-10 as they were employed by the UConn Health Center and served on the Utilization Review Committee ("URC"), the group that evaluates inmates' requests for off-site medical care. See [Dkt. 1 ¶¶ 5, 13].
The last category is comprised of the individuals who were Wardens at the relevant CDOC facilities during the time Neary was housed: MWCI Warden Peter Murphy ("Murphy"), MWCI and OCI Warden Carol Chapdelaine ("Chapdelaine"), ECI Warden Walter Ford ("Ford"), CRCC Warden Antonio Santiago ("Santiago"), and WCCI Warden John Tarascio ("Tarascio"). All individuals are sued in their individual and official capacities.
Neary began to experience pain in his nipples beginning August 2013. [Dkt. 83 ¶ 43]. Over the course of several months, small lumps in his breasts formed and continued to grow, and Neary experienced increasingly severe pain and tenderness in his breasts. Id. ¶¶ 44-48. On December 16, 2013, Neary felt a large lump in his left breast extending from his nipple to his armpit and the same day he submitted a request to the Medical Department at MWCI asking for a doctor appointment. Id. ¶¶ 49-52. Four days later, Neary went to sick call where a nurse examined him; in response she submitted a request for Neary to be examined by Dr. Naqvi. Id. ¶¶ 53-56.
The next month on January 19, 2014, Dr. Naqvi examined Neary and determined that a mammogram would be medically necessary to evaluate whether the lumps were cancerous. Id. ¶¶ 57, 61, 65. Because the mammogram would have to be conducted at the UConn Health Center, Dr. Naqvi was required to and did submit a request for approval by the URC. Id. ¶ 62-64. The URC denied the mammogram request and instead approved a less expensive ultrasound. Id. ¶¶ 67-69. Neary was transported to UConn Health Center for an ultrasound on March 10, 2014. Id. ¶ 70. When he was there he notified the treating medical professionals that Dr. Naqvi requested a mammogram to evaluate whether the lumps were cancerous, and the medical professionals agreed that an ultrasound was insufficient to evaluate cancer; they performed a mammogram that day. Id. ¶¶ 70-75. Amish P. Patel, M.D. ("Dr. Patel") and/or Alex Merkulov, M.D. ("Dr. Merkulov") diagnosed Neary with non-cancerous "palpable/painful moderate to severegynecomastia" and informed Neary of these results. Id. ¶¶ 77-78. They informed Neary that he would need laboratory testing to determine the cause of his gynecomastia and that the only total treatment was surgical removal, and on the same day Neary notified a nurse at sick call of the same. Id. ¶¶ 79-81.
Seventeen days later on March 27, 2014, Dr. Naqvi requested a blood sample for laboratory testing and Neary submitted the sample on the same day. Id. ¶¶ 82-84. The results indicated Neary had a prolactin level of 20.26 ng/mL, nearly twice the high end of the normal range for males (2.64 to 13.13 ng/mL). Id. ¶¶ 86-87. Neary submitted requests for an appointment with Dr. Neary on April 7, 2014, and May 22, 2014, to discuss a treatment plan and the laboratory results. Id. ¶¶ 88-90. Naqvi did not respond to either request. Id. ¶¶ 89, 91. Neary then scheduled an appointment at a sick call and he met with Dr. Naqvi on June 8, 2014.
On June 8, 2014, Dr. Naqvi informed Neary that the laboratory results did not reveal whether dietary soy or some other factor caused Plaintiff's gynecomastia. Id. ¶ 100. He did not provide Neary with a copy of his laboratory results. Id. ¶ 102. Dr. Naqvi submitted a request to the URC for Neary to meet with a surgeon. Id. ¶ 108. He also prescribed Neary Motrin 600mg to alleviate the pain, which Neary did not receive until June 13, 2014. Id. ¶¶ 110-11. Neary's prescription ended on June 25, 2014, and he did not receive additional pain medication until August 8, 2014. Id. ¶ 115.
On June 12, 2014, the URC denied Dr. Naqvi's request for a surgical referral. Id. ¶ 116. Neary submitted a request to learn the URC determination on June 15, 2014, and a nurse informed him of the denial on June 18, 2014. Id. ¶ 118. Nearyappealed the URC denial the following day by submitting a Medical Administrative Remedy Form ("First MAR Form"). Id. ¶ 119. He thereafter made a request to meet with Dr. Naqvi to discuss the denial, and he received an appointment for July 20, 2014. Id. ¶ 121. During this examination, Dr. Naqvi told Neary he would make a second request to meet with a surgeon. Id. ¶ 126. For the interim and upon Neary's request, Dr. Naqvi prescribed Neary stronger pain medication: Tylenol 650 mg. Id. ¶ 129. On the same day, Neary submitted a request for the status of his appeal, the First MAR Form. Id. ¶ 135.
Neary had not received his pain medication on July 28, 2014, which prompted him to file a request and accordingly he obtained his medication on August 8, 2014. Id. ¶¶ 131-32. This medication did not alleviate the pain. Id. ¶ 130. The same day he made the medication request, he also filed a request to be notified of the status of Dr. Naqvi's renewed request for URC to approve of Neary meeting with a surgeon. Id. ¶ 136.
Neary filed several requests, grievances, and appeals in the month of August 2014. He filed a Second MAR Form on August 5, 2014 regarding the status of the First MAR Form. Id. ¶ 137. Dr. Naqvi notified Neary on August 10, 2014, that the URC had denied his renewed request. Id. ¶ 138. When prompted, Neary refused to sign the denial. Id. ¶ 140. Neary also filed a Level 2 Grievance Appeal Form on August 15, 2014, appealing the denial of both MAR Forms. Id. ¶¶ 144. On August 18, 2014, Neary requested a copy of the URC denial but he never receive one. Id. ¶¶ 141-43. Then on August 22, 2014, Neary submitted a request regarding the status of his Level 2 Grievance Form. Id. ¶ 145. This same day he filed a requestfor appointment with Dr. Naqvi because the Tylenol 650 mg did not alleviate his pain, but he did not receive a response. Finally, on August 26, 2014, Neary filed a request for Dr. Wu to provide a treatment plan for gynecomastia, but he did not receive a response. Id. ¶ 150.
The month of September was nearly as busy. Neary was informed that a Level 2 Grievance Appeal Form was the incorrect form, so he filed an Appeal of Health Services Review...
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