United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
reasons stated below, plaintiff's motion to proceed
in forma pauperis is allowed, a filing fee is
assessed, and plaintiff is allowed to file an amended
March 17, 2017, pro se prisoner plaintiff Roscoe Banks filed
a two-page self-prepared complaint against Peter Kotoujian,
Osvaldo Vidal, and Kathy Schultz. D.1. Plaintiff claims that
on the afternoon of March 3, 2017, an unknown prison nurse
administered him the wrong type of insulin. D.1, Compl.
¶ 6. Plaintiff claims to have developed symptoms of
dizziness, drowsiness and a temperature of 103 degrees. D.1,
Compl. ¶ 7. He also claims to have suffered hives and a
constricted throat. D.1, Compl. ¶ 8. Later that evening,
plaintiff was brought to the prison's medical unit where
he was monitored for anaphylactic shock. D.1, Compl.
¶¶ 9-10. He remained there for three days while his
symptoms abated. D.1, Compl. ¶ 11. Plaintiff seeks $50,
000 in damages. D.1, Compl. ¶ 12. Also before the Court
is plaintiff's motion to proceed in forma
pauperis and certified prison account statement. D. 7
Plaintiff's Motion to Proceed In Forma Pauperis
Court has reviewed plaintiff's motion to proceed in
forma pauperis (D. 7) and it will be allowed. Pursuant
to 28 U.S.C. § 1915(b)(1), the Court assesses an initial
partial filing fee of $52.33. The remainder of the fee,
$297.67, shall be collected in accordance with 28 U.S.C.
§ 1915(b)(2). Because the plaintiff is proceeding in
forma pauperis and is a prisoner, his complaint is subject to
screening pursuant to 28 U.S.C. § 1915(e)(2) and §
1915A(1). The Court must dismiss all claims that are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)
and § 1915A(b). The Court liberally construes the
complaint because plaintiff is proceeding pro se.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
As set forth below, Plaintiff's complaint as pleaded,
fails to state a claim upon which relief may be granted and
is therefore subject to dismissal. Plaintiff will, however,
be permitted leave to amend his complaint.
Plaintiff's Complaint Fails to State An Eighth
Plaintiff Fails to State a Claim upon which Relief May Be
Granted under the Eighth Amendment
appears to bring this claim under 28 U.S.C. § 1983 as a
deliberate indifference to his medical needs under the Eighth
Amendment to the United States Constitution. “To
succeed on an Eighth Amendment claim based on inadequate or
delayed medical care, a plaintiff must satisfy both a
subjective and objective inquiry: he must show first,
‘that prison officials possessed a sufficiently
culpable state of mind, namely one of ‘deliberate
indifference' to an inmate's health or safety, '
and second, that the deprivation alleged was
‘objectively, sufficiently serious.'”
Leavitt v. Corr. Med. Servs., Inc., 645
F.3d 484, 497 (1st Cir. 2011)(quoting Bureel v. Hampshire
County, 307 F.3d 1, 8 (1st Cir. 2002)).
has not alleged “deliberate indifference” and
therefore his complaint fails to state ca claim upon which
relief may be granted. A showing of deliberate indifference
“encompasses a narrow band of conduct: subpar care
amounting to negligence or even malpractice does not give
rise to a constitutional claim [citation omitted]; rather,
the treatment provided must have been so inadequate as to
constitute an unnecessary and wanton infliction of pain or to
be repugnant to the conscience of mankind.” Leavitt
v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir.
2011)(citations and quotations omitted). One manner of
demonstrating deliberate indifference is “evidence that
the failure in treatment was purposeful, such as for the
purpose of punishment.” Kosilek v. Spencer,
774 F.3d 63, 83 (1st Cir. 2014). “[D]eliberate
indifference may also be exhibited by a wanton disregard to a
prisoner's needs….akin to criminal recklessness,
requiring consciousness of impending harm, easily
preventable.” Kosilek v. Spencer, 774 F.3d 63,
83 (1st Cir. 2014)(citations omitted). “[C]arelessness
or inadvertence falls short of the Eighth Amendment standard
of deliberate indifference.” Leavitt v. Corr. Med.
Servs., Inc., 645 F.3d 484, 498 (1st Cir. 2011). In sum,
“[t]he courts have consistently refused
to…conclude that simple medical malpractice rises to
the level of cruel and unusual punishment.” Watson
v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)).
the complaint provides no allegations concerning why
plaintiff was administered the wrong insulin. Without other
facts, it appears plaintiff alleges, at most, a claim for
medical malpractice. Such a claim does not necessarily rise
to the level of an Eighth Amendment violation. See Rix v.
Strafford Cty. Dep't of Corr., No. CIV. 05CV354JD,
2006 WL 2873623, at *2 (D.N.H. Oct. 5, 2006)(dismissing
deliberate indifference count where nurse was unaware of the
danger of administering mixed insulin); Hunter v.
Gomez, No. 1:11-CV-00758-BAM PC, 2012 WL 12906282, at *3
(E.D. Cal. June 22, 2012), aff'd, 536
F.App'x 750 (9th Cir. 2013)(dismissing Eighth Amendment
claim on medical malpractice of nurse); Mitchell v.
Galey, No. 1:14-CV-00317-LJO-SK, 2015 WL 3402982, at *5
(E.D. Cal. May 27, 2015), appeal dismissed (Mar. 21,
2016)(report and recommendation for sua sponte dismissal of
Eighth Amendment claim pleading medical malpractice of nurse
Plaintiff's Supervisory Claims Fail under 28 U.S.C.
the complaint were sufficiently pleaded to allege an Eighth
Amendment violation, it would still would be subject to
dismissal because the plaintiff does not name the nurse that
allegedly administered the wrong insulin as a defendant.
Rather, plaintiff brings suit against supervisory personnel
who apparently had no involvement with the alleged incident.
“It is well-established that ‘only those
individuals who participated in the conduct that deprived the
plaintiff of his rights can be held liable'” under
28 U.S.C. § 1983. Velez-Rivera v.
Agosto-Alicea, 437 F.3d 145, 156 (1st Cir.
2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d
124, 129 (1st Cir. 2005)). “A plaintiff must
show an affirmative link between the subordinate [employee]
and the supervisor, whether through direct participation or
through conduct that amounts to condonation or tacit