Neary v. Wright ( 2019 )


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  • 17-2876-pr
    Neary v. Wright
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
    BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
    WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
    MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
    NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
    OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
    19th day of February, two thousand nineteen.
    Present:          RALPH K. WINTER,
    ROSEMARY S. POOLER,
    Circuit Judges.
    RONNIE ABRAMS,1
    District Judge.
    _____________________________________________________
    CHRISTOPHER R. NEARY,
    Plaintiff-Appellee,
    v.                                                 17-2876-pr
    JOHNNY WU, M.D., MONICA FARINELLA, M.D., CARY
    FRESTON, M.D., RICARDO RUIZ, M.D., and JOHNNY
    WRIGHT, M.D., in their individual capacities,
    Defendants-Appellants.2
    _____________________________________________________
    Appearing for Appellants:      Zenobia G. Graham-Days, Assistant Attorney General, for George
    Jepsen, Attorney General of Connecticut, Hartford, C.T.
    1
    Judge Ronnie Abrams, United States District Court for the Southern District of New York,
    sitting by designation.
    2
    The Clerk of Court is directed to amend the caption as above.
    Appearing for Appellee:       Andraya B. Pulaski, Day Pitney LLP (Thomas D. Goldberg,
    Matthew J. Shiroma, on the brief), Hartford, C.T.
    Appeal from the United States District Court for the District of Connecticut (Bryant, J.).
    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
    Appellants Drs. Johnny Wright, Monica Farinella, Cary Freston, Ricardo Ruiz, and
    Johnny Wu appeal from the September 6, 2017 order of the United States District Court for the
    District of Connecticut (Bryant, J.), denying their defense of qualified immunity against
    Christopher Neary’s claim that they were deliberately indifferent to his serious medical needs.
    We assume the parties’ familiarity with the underlying facts, procedural history, and
    specification of issues for review.
    Defendants-Appellants, all doctors who work in the Connecticut Department of
    Corrections System, here appeal from an order denying their motion to dismiss and holding that
    they were not entitled to qualified immunity. At all relevant times, Neary was an inmate under
    the control of the Connecticut Department of Corrections. Approximately seven years into his
    sentence, Neary began experiencing severe pain in his breasts and found several irregular,
    growing lumps. Neary now alleges that Defendants-Appellants (1) repeatedly prescribed
    medication that did not treat his pain, (2) denied him a recommended surgical consultation to
    consider removal of breast tissue, (3) prescribed and then refused to serve him a soy-free diet
    designed to reduce his symptoms, and (4) abruptly stopped a narcotic pain medication that
    caused Neary to suffer withdrawal when he was not appropriately weaned from the medication.
    Neary subsequently brought a complaint alleging that personnel in the Connecticut Department
    of Corrections were deliberately indifferent to his serious medical needs.
    As a threshold matter, we consider Dr. Wu’s appeal independently from the appeals of
    Drs. Wright, Farinella, Freston, and Ruiz. That is because unlike the other Defendants-
    Appellants, Dr. Wu was named in the First Amended Complaint and Second Amended
    Complaint, waived service of process, and had an attorney appear on his behalf prior to the first
    motion to dismiss. In contrast, the remaining Defendant-Appellants were not named as parties
    until after the first motion to dismiss had been decided, much less could they have participated in
    the motion.
    Dr. Wu now seeks appellate review of a qualified-immunity defense he has raised twice
    on two motions to dismiss. In the district court’s order to deny Dr. Wu’s first motion to dismiss,
    the court rejected Dr. Wu’s qualified-immunity defense at the pleadings stage, inviting him to
    raise the defense again at summary judgment. Critically, Dr. Wu did not appeal that decision. In the
    same opinion, the court ordered the Connecticut Attorney General’s Office to provide Neary
    with the proper names of defendants then listed as “John Does 1-10” and ordered Neary to file a
    second amended complaint naming those defendants. When Neary did so, Defendants-
    Appellants, including Dr. Wu and the defendants now named and served in the action for the first
    time, moved to dismiss, arguing that they were entitled to qualified immunity. Dr. Wu joined in
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    this motion and made the same arguments for qualified immunity a second time. The district
    court rejected the defense. Thereafter, Defendants-Appellants noticed this interlocutory appeal.
    The district court was correct to reject Dr. Wu’s second motion to dismiss that raised
    substantially the same arguments as the first. Neary’s Second Amended Complaint did not
    substantively modify the allegations against Dr. Wu. Dr. Wu thus moved to dismiss the same
    substantive allegations against him twice on the same grounds. This second motion was
    precluded by the “law of the case” doctrine: after the first motion to dismiss was decided, it was
    the “law of the case” that Dr. Wu was not entitled to a qualified-immunity defense on the
    pleadings. See Arizona v. California, 
    460 U.S. 605
    , 618 (1983); see also Virgin Atl. Airways, Ltd.
    v. Nat’l Mediation Bd., 
    956 F.2d 1245
    , 1255 (2d Cir. 1992) (“[W]here litigants have once battled
    for the court’s decision, they should not be required, nor without good reason permitted, to battle
    for it again.” (internal quotation marks omitted)). Dr. Wu was required to appeal the first adverse
    qualified-immunity decision within thirty days of the order, and he did not. Fed. R. App. P.
    4(a)(1). This Court therefore lacks jurisdiction to hear Dr. Wu’s interlocutory appeal.
    The remaining Defendants-Appellants—Drs. Farinella, Freston, Ruiz, and Wright—
    argued for the first time that they were entitled to qualified immunity on the presently appealed
    order denying their qualified-immunity defense. Their appeal is timely, and we consider it on the
    merits. Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985).
    We review a district court’s decision on qualified immunity de novo. Anderson v. Recore,
    
    446 F.3d 324
    , 328 (2d Cir. 2006). Defendants advancing a qualified-immunity defense at the
    motion to dismiss stage “face[] a formidable hurdle.” McKenna v. Wright, 
    386 F.3d 432
    , 434 (2d
    Cir. 2004). On such a motion, “the plaintiff is entitled to all reasonable inferences from the facts
    alleged, not only those that support his claim, but also those that defeat the immunity defense.”
    
    Id. at 436.
    With the benefit of those inferences, we then ask whether the plaintiff has pled “facts
    showing (1) that the official violated a statutory or constitutional right, and (2) that the right was
    ‘clearly established’ at the time of the challenged conduct.” Ganek v. Leibowitz, 
    874 F.3d 73
    , 80
    (2d Cir. 2017) (internal quotation marks omitted).
    Neary’s complaint does exactly that. The Supreme Court has established that deliberate
    indifference to a prisoner’s serious medical needs violates the Eighth Amendment’s prohibition
    of cruel and unusual punishment. Estelle v. Gamble, 
    429 U.S. 97
    , 104 (1976). We have
    previously held that a prisoner-plaintiff establishes a “serious medical need” where she suffered
    “chronic pain the magnitude of which probably falls somewhere between ‘annoying’ and
    ‘extreme.’” Brock v. Wright, 
    315 F.3d 158
    , 163 (2d Cir. 2003) (emphasis omitted). And in
    McKenna v. Wright, we found allegations that doctors failed to run required tests despite obvious
    symptoms, failed “to initiate treatment when the need for treatment was apparent,” failed to
    arrange follow-up visits despite doctors’ orders, and denied treatment based on flawed policies,
    were sufficient to defeat the doctors’ qualified-immunity defense on a motion to 
    dismiss. 386 F.3d at 437
    .
    Here, Neary has alleged that he suffered chronic pain due to gynecomastia and that his
    pain was insufficiently treated. He alleges that doctors repeatedly prescribed inadequate pain
    medication, denied recommended tests and surgical consultations, terminated a prescription diet
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    without explanation, and ended narcotic pain medication without appropriately weaning him off
    the medication or substituting another pain medication. Taking all these allegations as true and
    drawing all permissible inferences in Neary’s favor and against Defendants-Appellants’
    qualified-immunity defense, there is no doubt that Defendants-Appellants are not entitled to
    qualified immunity at this juncture. As the district court correctly noted, Defendants-Appellants
    may raise the immunity defense after discovery, but it is not available to them now.
    We have considered the remainder of Drs. Wu, Farinella, Freston, Ruiz, and Wright’s
    arguments and find them to be without merit. Accordingly, the order of the district court hereby
    is AFFIRMED as to Dr. Farinella, Dr. Freston, Dr. Ruiz, and Dr. Wright. We lack jurisdiction
    over Dr. Wu’s appeal. Each side to bear its own costs.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
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