Thompson v. Pallito

• Decision Date: 29 May 2013
• Docket Number: No. 1:12–cv–225–jgm–jmc.,1:12–cv–225–jgm–jmc.
• Citation: 949 F.Supp.2d 558
• Parties: Daniel L. THOMPSON, Plaintiff, v. Andrew PALLITO, Prison Health Care Staff at CCCC, Shana, Multiple Unknown Vermont Department of Corrections Officers at CCCC, Greg Hale, Prison Health Care Staff at CCCC, Defendants.
• Court: U.S. District Court — District of Vermont

949 F.Supp.2d 558

Daniel L. THOMPSON, Plaintiff,

v.Andrew PALLITO, Prison Health Care Staff at CCCC, Shana, Multiple Unknown Vermont Department of Corrections Officers at CCCC, Greg Hale, Prison Health Care Staff at CCCC, Defendants.

No. 1:12–cv–225–jgm–jmc.

United States District Court,

D. Vermont.

May 29, 2013.

Daniel L. Thompson, St. Albans, VT, pro se.

ORDER

J. GARVAN MURTHA, District Judge.

The Magistrate Judge's Report and Recommendation was filed April 30, 2013. (Doc. 39.) After de novo review and absent objection, the Report and Recommendation is AFFIRMED, APPROVED and ADOPTED. See28 U.S.C. § 636(b)(1).

Defendants Andrew Pallito, Greg Hale and Shana's Motion to Dismiss (Doc. 29) is GRANTED.

The Vermont Attorney General's Office is ORDERED to release forthwith to Plaintiff all reports regarding his medical treatment, and to assist him in ascertaining the identities of all individuals involved in his medical treatment for the period September 2009 to June 2010, providing current address(es) where these individuals can be served. The Attorney General's Office need not undertake to defend or indemnify these individuals at this juncture. Such assistance shall be rendered within 30 days of this Order.

If the information cannot be provided, the Attorney General's Office shall submit a detailed explanation of why it has been unable to do so, specifically identifying what steps it has taken to acquire the information in question. If the information is provided to Plaintiff, he may file a Second Amended Complaint naming those individuals he intends to sue no later than 30 days following receipt of the identifying information. Thompson's failure to comply with this deadline may result in the dismissal of his entire Amended Complaint pursuant to Fed.R.Civ.P. 41.

Plaintiff's “Motion for Admission of Undisputed Facts from Party Opponents” (Doc. 30) is DENIED. All motions filed prior to the Amended Complaint (Docs. 13, 14, 15, 19, 21, 24) are DENIED as moot. Plaintiff's Motion to Appoint Counsel (Doc. 38) is DENIED without prejudice, and his Motion for Default Judgment (Doc. 38) is DENIED.

It is further certified that any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. See28 U.S.C. § 1915(a)(3).

SO ORDERED.

REPORT AND RECOMMENDATION

(Docs. 13, 14, 15, 19, 21, 24, 29, 30, 38)

JOHN M. CONROY, United States Magistrate Judge.

Plaintiff Daniel L. Thompson, proceeding pro se, has filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants,officials at the Vermont Department of Corrections (“DOC”), violated his constitutional rights after he received improper and ineffective treatment before and after shoulder surgery for a torn rotator cuff suffered while in DOC custody. (Doc. 27.) ¹ Since the commencement of this action, many motions have been filed.

Upon the filing of the original Complaint (Doc. 5), numerous Motions to Amend followed (Docs. 19, 20, 21), which were ultimately granted (Doc. 26). Thompson also sought the appointment of counsel (Doc. 19–1 at 2), which was denied (Doc. 26 at 6–7). Other pending motions—including Motions to Dismiss by certain Defendants (Docs. 13, 14), Motions for Summary Judgment by Thompson (Docs. 15, 19, 24), and a motion by Thompson requesting that he be permitted to respond to the motions to dismiss using the Amended Complaint (Doc. 21)—predate the filing of the Amended Complaint. Since the filing of the Amended Complaint (Doc. 27), certain Defendants have moved to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 29). Thompson filed a response to the pending Motion to Dismiss in which he again sought the appointment of counsel (Docs. 33, 38), as well as a “Motion for Admission of Undisputed Facts from Party Opponents” (Doc. 30).

For the reasons that follow, I recommend that the most recent Motion to Dismiss filed by Defendants Pallito, Hale, and Shana (Doc. 29) be GRANTED. Although I recommend dismissal, I also recommend that counsel for these Defendants, the Vermont Attorney General's Office, be ordered to release forthwith to Thompson all reports regarding his medical treatment, and to assist Thompson in ascertaining the identities of all individuals involved in his treatment, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir.1997).

As to the remaining motions, I recommend that Thompson's “Motion for Admission of Undisputed Facts from Party Opponents” (Doc. 30) be DENIED. I further recommend that all motions filed prior to the Amended Complaint (Docs. 13, 14, 15, 19, 21, 24) be DENIED AS MOOT. Finally, Thompson's Motion to Appoint Counsel (Doc. 38) should be DENIED without prejudice.

Facts and Procedural Background

Daniel Thompson is a sixty-one year old inmate in the custody of the DOC. (Doc. 27 at 1.) On September 26, 2009, Thompson began his imprisonment at Chittenden Community Correctional Facility ² after a brief hospitalization following a car accident allegedly caused by his intoxication. (Id. at 2.) By Thompson's description, he was charged with “DUI accident resulting,”and the initial period of his incarceration was approximately nine to ten months “until [he] posted bail at a later date.” ( Id.) During this time, he was “detoxing from alcohol,” which caused “confusion, tremors, hallucinations, sweats, disorientation, [his] left eye [to swell] shut, migraines, trouble walking, slurred speech, uncertainty of [his] whereabouts, as well as other physical ailments.” ( Id.) Thompson brought these problems to the attention of officers and medical staff at the facility, noting that he “was afraid of [his] mental condition, and that [he] was not being cared for adequately.” ( Id.) He “asked for help repeatedly, but [his] repeated polite requests fell on deaf ears.” ( Id.)

On the third day of his incarceration, after spending the first two days in segregation, Thompson suffered a seizure. (Id. at 3.) The seizure put Thompson into a “semi-conscious state” during which he recalled “at least three or four officers,” including Shana (a Defendant here), “standing over [him] laughing.” ( Id.) Shana in particular was “holding [a] video camera,” apparently filming Thompson. ( Id.) During the episode, Shana, along with the other guards, were saying things such as “He's faking it. Save a bed for him. If he does go anywhere, he'll be back soon.” ( Id.) This taunting “happened several times.” ( Id.)

Later that day, Thompson was taken to the emergency room at Fletcher Allen Health Care. ( Id.) When a guard suggested that Thompson would be taken back to the prison facility, Thompson's treating physician recommended he remain at the hospital. ( Id.) After the officer overruled the physician and began to wheel Thompson out of the hospital, he “apparently” suffered another seizure and woke up back in the emergency room. ( Id.) Thompson was again made to leave over the physician's objection. ( Id.) Finally, after he suffered a third seizure, Thompson was allowed to remain at the hospital for “about four and one-half days.” ( Id. at 4.) After a battery of “MRIs, X-rays, blood tests, and whatever else was performed,” Thompson was returned to the prison facility “with a massively torn rotator cuff among other injuries which were not present following the alleged DUI accident, but which came to light after the seizure and the fall in the hallway.” ( Id.)

A physician, who Thompson identifies as “Doctor Endgress,” was called to the facility to address the shoulder injury, and “wrote an order to schedule shoulder surgery within one week” and “prescribed [Thompson] some sort of pain medication.” ( Id.) “A few days later,” Thompson saw another doctor at the prison who agreed that he had torn his rotator cuff due to his seizure and fall, but declined to provide pain medication because the doctor was “not a fan” of prescribing Vicodin in a prison. ( Id.) According to Thompson, he “wasn't even prescribed Motrin.” ( Id.) Thompson continued to “put in numerous medical slips” requesting pain medication, but he “never heard back” on any of these requests. ( Id.)

Thompson identifies a range of physical problems he experienced until he was allowed to have shoulder surgery. ( Id. at 5.) He was “using a crutch to walk around” making “just walking ... very difficult for me.” ( Id.) He was also “suffering from migraines” and having headaches “mostly every day.” ( Id.) His “great” shoulder pain and its associated limitations meant that he could not use his left arm because it was in a sling, and thus he was unable to “take care of [him] self in the most basic of ways,” including hygienically and nutritionally.³ ( Id.) Furthermore, his left eye was “swelled shut,” presumably from the fall, and his shoulder pain meant that “sleep was very limited.” ( Id.) In mid-December 2009, after waiting over two and one-half months, Thompson had his shoulder surgery. ( Id.)

After the surgery, the hospital doctor informed Thompson that he needed to see a physical therapist within “four or five days” to “start moving [his] arm for [him].” ( Id.) Otherwise, the arm could “lock up and freeze,” which would cause him “a lot more trouble.” ( Id.) The doctor also prescribed medication for Thompson. ( Id.) Upon Thompson's return to prison, guards confiscated his hospital paperwork and returned him to his cell rather than an infirmary for continued recovery. ( Id.) The nurse at the facility refused to assist Thompson with his “cryo cuff,” which he was supposed to wear after the surgery. (Id. at 6.) Unable to lie on his bunk bed while wearing the cuff, Thompson ultimately had his cellmate move his mattress to the floor so he could sleep on it, even though he remained in “excruciating pain.” ( Id.) According to Thompson, several commanding officers and shift supervisors noticed his difficulties, as he “made them aware that [he] was suffering from a disability” and that they had...