Calhoun v. Blumenthal et al
ORDER granting 46 Motion for Summary Judgment. See attached memorandum of decision. SO ORDERED. Signed by Judge Vanessa L. Bryant on March 28, 2012. (Butler, Ayanna)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD BLUMENTHAL, ET AL.
Case No. 3:10cv180 (VLB)
March 28, 2012
RULING GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff Raymond Calhoun, was confined at Bridgeport Correctional
Center (“Bridgeport Correctional”) in Bridgeport, Connecticut, when he commenced
this civil rights action pro se pursuant to 28 U.S.C. § 1915. The plaintiff alleges inter
alia that defendants Medical Services Administrator Daniel Bannish, Dr. James
O’Halloran, Medical Manager Rikel Lightner, Nursing Supervisor Ann Marie Deeb1,
Medical Services Coordinator Nathan Hein and Warden Walter Ford were
deliberately indifferent to his medical needs from September 17, 2009 to December
9, 2009. On October 20, 2010, the court dismissed the claims for damages against
all defendants in their official capacities and concluded that the claims of deliberate
indifference to medical needs would proceed against the defendants in their
The plaintiff’s current address on file is the Boston Pre-Release Center, 430
Canterbury Street, Roslindale, Massachusetts because, on June 20, 2011, the
plaintiff filed a Motion for Summary Judgment with exhibits indicating he had a new
In the Amended Complaint, this defendant is listed as Ann Marie. The
defendants and the plaintiff have since identified defendant Ann Marie as Ann
Marie Deeb. Thus, the court will refer to her as Ann Marie Deeb in this ruling.
address and that he had been released from prison. [Dkt. 42-1, p. 1]. The
defendants’ Cross-Motion for Summary Judgment was mailed to this address and
not returned to the court as undeliverable and on August 24, 2011, the plaintiff filed
a Motion for Extension of Time to respond to the Cross-Motion. [Dkt. #48].
Rule 83.1(c) of the Local Civil Rules of the United States District Court for the
District of Connecticut requires a pro se party to provide the Court with a written
notice indicating an address within Connecticut where he can be served with
motions, pleadings and other court documents filed in his case. In accordance with
that rule, the Court granted the plaintiffs motion for extension of time, ordering him
to respond to the defendant’s Cross-Motion by December 8, 2011 and to file notice
indicating his current mailing address within Connecticut. [Dkt. #49].
To date, the plaintiff has failed to file a response to the defendants’ motion for
summary judgment or to provide a written notice of his current address within the
State of Connecticut. Other than the motion for extension of time, the plaintiff has
made no other attempts to contact the court.
Accordingly, the plaintiff has failed to comply with an order and rule of the
court. This case is subject to dismissal pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure. In addition, the defendants have moved for summary judgment.
For the reasons that follow, the motion will be granted.
Standard of Review
In a motion for summary judgment, the burden is on the moving party to
establish that there are no genuine issues of material fact in dispute and that it is
entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The moving party may satisfy this
burden by demonstrating the lack of evidence to support the nonmoving party’s
case. PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).
“Summary judgment is appropriate where, construing all evidence in the light
most favorable to the non-moving party,” Pabon v. Wright, 459 F.3d 241, 247 (2d
Cir.2006), “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(c)(2). An issue
of fact is “material” if it “might affect the outcome of the suit under the governing
law,” and is “genuine” if “a reasonable jury could return a verdict for the nonmoving
party” based on it. Anderson, 477 U.S. at 248. “Unsupported allegations do not
create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000). When a motion for summary judgment is supported by documentary
evidence and sworn affidavits, the nonmoving party must do more than vaguely
assert the existence of some unspecified disputed material facts or present mere
speculation or conjecture. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d
118, 121 (2d Cir. 1990) (quotations and citations omitted). The mere of existence of
a scintilla of evidence in support of the nonmoving party’s position is insufficient;
there must be evidence on which the jury could reasonably find for him. See
Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
The court resolves all ambiguities and draws all permissible factual
inferences in favor of the nonmoving party. See Patterson v. County of Oneida, NY,
375 F.3d 206, 218 (2d Cir. 2004). If there is any evidence in the record from which a
reasonable inference could be drawn in favor of the opposing party on the issue on
which summary judgment is sought, summary judgment is improper. See Security
Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Where one party is proceeding pro se, the court reads the pro se party’s
papers liberally and interprets them to raise the strongest arguments suggested
therein. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Despite this liberal
interpretation, however, an unsupported assertion cannot overcome a properly
supported motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d
The facts are taken from defendant’s Local Rule 56(a)1 Statement along
with the attached exhibits and affidavits. (See Docs. Nos. 46-3 through 46-7.)
Local Rule 56(a)2 requires the party opposing summary judgment to submit a
Local Rule 56(a)2 Statement which contains separately numbered paragraphs
corresponding to the Local Rule 56(a)1 Statement and indicates whether the
opposing party admits or denies the facts set forth by the moving party. Each
admission or denial must include a citation to an affidavit or other admissible
evidence. In addition, the opposing party must submit a list of disputed factual
issues. See D. Conn. L. Civ. R. 56(a)2 & 56(a)3. With their motion for summary
judgment, defendants filed a Notice to Pro Se Litigant [Doc. No. 46-8] informing
plaintiff of his obligation to respond to the motion for summary judgment, the
time limit for filing his response, and of the contents of a proper response.
Plaintiff has failed to respond to the motion for summary judgment.
Accordingly, defendants’ facts are deemed admitted. See D. Conn. L. Civ. R.
56(a)1 (“All material facts set forth in said statement will be deemed admitted
In September 2009, the plaintiff was arrested in Connecticut and charged with
multiple criminal offenses. On September 17, 2009, he was admitted to Bridgeport
Correctional as a pretrial detainee.
Upon his admission to Bridgeport Correctional, a member of the medical staff
performed an intake health screening of the plaintiff. The screening report reflected
that the plaintiff suffered from non-insulin dependent diabetes mellitus,
hypertension, high cholesterol and two mental health disorders. The report
indicated that the plaintiff was taking three medications for his mental health
On September 18, 2009, Dr. James O’Halloran evaluated the plaintiff. The
plaintiff reported that he suffered from type 2 diabetes and hypertension, but that
these conditions were controlled with weight loss and an increase in muscle mass.
The plaintiff also reported that he had been diagnosed as suffering from Hepatitis C,
but that the condition had been adequately treated with therapy.
Dr. O’Halloran ordered that the plaintiff’s blood sugar levels be checked twice
a day, one day a week, his blood pressure and pulse be taken monthly for twelve
months and that he submit to blood tests every three months for one year. Dr.
O’Halloran also prescribed medication to treat the plaintiff’s hypertension and
mental health conditions, referred him for a mental health evaluation and ordered
that he be placed on a diabetic diet for a year. Dr. O’Halloran directed the medical
unless controverted by the statement required to be served by the opposing party
in accordance with Rule 56(a)2.”).
staff to request copies of the plaintiff’s medical records from the prison facility in
Massachusetts where the plaintiff had been previously incarcerated.
On October 1, 2009, blood work revealed the plaintiff’s cholesterol to be in the
borderline high range. Dr. Buchanan opined that these results were unremarkable.
By April 2010, the plaintiff’s total cholesterol level had improved and was within the
Medical personnel at Bridgeport Correctional Center monitored the plaintiff’s
blood pressure, pulse and weight from September 21, 2009 through December 15,
2009. The results of these tests were within the acceptable range. Medical staff
also took the plaintiff’s blood sugar levels. The levels were unremarkable except for
an elevated reading on December 9, 2009. In response to this elevated reading, a
physician prescribed insulin to be given to the plaintiff. In addition, the medical
staff provided instruction on diabetes and its treatment to the plaintiff.
Later that day, Dr. Elderkin examined the plaintiff. During that examination,
the plaintiff related that prior to his incarceration in Connecticut, he had been
previously prescribed Glyburide to treat his diabetes. Dr. Elderkin prescribed
Glyburide and issued instructions to the medical staff to monitor the plaintiff’s
diabetes by performing regular blood sugar tests. Dr. Elderkin also discontinued
the medication Dr. O’Halloran had previously prescribed to treat the plaintiff’s
mental health and hypertension conditions and prescribed two new medications.
On December 14, 2009, the plaintiff’s blood sugar levels were elevated. In
response, a physician increased the dosage of Glyburide. During the last week of
December 2009, a psychiatrist prescribed a new medication to treat the plaintiff’s
mental health conditions.
On February 2, 2010, a judge in the Connecticut Superior Court for the
Judicial District of Bridgeport sentenced the plaintiff to thirteen months of
imprisonment. On February 10, 2010, prison officials at Bridgeport Correctional
transferred the plaintiff to MacDougall Correctional Institution (“MacDougall”).
Medical personnel at MacDougall continued to treat and monitor the plaintiff’s
various medical and mental health conditions. In late February 2010, a physician
prescribed another medication to treat the plaintiff’s mental health conditions. The
plaintiff’s medical records reflect that the plaintiff received extensive instruction
regarding his diabetes condition and that subsequent testing revealed that the
plaintiff’s blood sugar levels were within the normal range by September 2010.
Although blood test results in April 2010 revealed the plaintiff’s liver enzymes
to be high, these elevations were minor and did not indicate evidence of kidney
damage. Dr. Buchanan opined that the elevated liver enzymes could have been
attributed to inflammation or a side effect of the plaintiff’s cholesterol medication.
On May 17, 2010, a physician at MacDougall ordered the plaintiff to be put on
a low cholesterol/low fat diet and a diabetic diet. In early September 2010, the
plaintiff’s total cholesterol was within the desirable range. The plaintiff’s blood
pressure, pulse and weight remained within acceptable limits for the period from
June 2010 to October 2010. Dr. Buchanan opined that the plaintiff’s test results
through October 2010 demonstrated that the plaintiff had been provided with
appropriate medical treatment after his transfer to MacDougall.
On October 13, 2010, prison officials at MacDougall transferred the plaintiff to
Hartford Correctional Center. On October 14, 2010, the plaintiff completed his
Connecticut sentence and was discharged from the custody of the Connecticut
Department of Correction (“CDOC”). That same day, however, the plaintiff was readmitted to CDOC pursuant to a warrant for his arrest for violating a sentence of
probation imposed by a court in Massachusetts. On October 14, 2010, the plaintiff
waived extradition to Massachusetts. He remained in CDOC custody until
November 12, 2010, when he was extradited to Massachusetts.
The plaintiff contends that the defendants were deliberately indifferent to his
diabetes, high blood pressure and high cholesterol conditions. The defendants
argue that they were not deliberately indifferent to his medical needs, the plaintiff
had not properly exhausted administrative remedies as to his claims and the
plaintiff failed to allege the personal involvement of defendants Bannish, Deeb,
Ford, Hein and Lightner in the alleged deliberate indifference to his medical needs.
The plaintiff names Daniel Bannish as a defendant. The defendants argue
that the plaintiff has failed to allege the personal involvement of Daniel Bannish in
the alleged deliberate indifference to his medical needs.
To recover money damages under section 1983, plaintiff must show that
these defendants were personally involved in the constitutional violations. See
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). As a supervisory official, Daniel
Bannish cannot be held liable under section 1983 solely for the acts of his
subordinates. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
The plaintiff may show supervisory liability by demonstrating one or more of
the following criteria: (1) the defendant actually and directly participated in the
alleged unconstitutional acts; (2) the defendant failed to remedy a wrong after being
informed of the wrong through a report or appeal; (3) the defendant created or
approved a policy or custom that sanctioned objectionable conduct which rose to
the level of a constitutional violation or allowed such a policy or custom to
continue; (4) the defendant was grossly negligent in supervising the correctional
officers who committed the constitutional violation; and (5) the defendant failed to
take action in response to information regarding the occurrence of unconstitutional
conduct. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted).
In addition, plaintiff must demonstrate an affirmative causal link between the
inaction of the supervisory official and his injury. See Poe v. Leonard, 282 F.3d 123,
140 (2d Cir. 2002).
In Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), the Supreme Court
found that a supervisor can be held liable only “through the official's own individual
actions.” Id. at ___, 129 S. Ct. at 1948. This decision arguably casts doubt on the
continued viability of some of the categories for supervisory liability. The Second
Circuit, however, has not revisited the criteria for supervisory liability following
Iqbal. See DeJesus v. Albright, No. 08 Civ. 5804 (DLC), 2011 WL 814838, at *6 n. 4
(S.D.N.Y. Mar. 9, 2011). Because it is unclear as to whether Iqbal overrules or limits
Colon the court will continue to apply the categories for supervisory liability set
forth in Colon.
The plaintiff describes Daniel Banish as a Medical Services Administrator for
the University of Connecticut Correctional Managed Health Care. (See Amended
Compl. at 1, 3.) The plaintiff does not otherwise refer to or mention Daniel Bannish
by name in the remaining pages of the Amended Complaint. It is evident that the
plaintiff has named Daniel Bannish as a defendant solely because he is a medical
supervisor. The only relief sought by the plaintiff is monetary damages.
There are no facts to suggest that Daniel Bannish was directly involved in the
alleged deliberate indifference to the plaintiff’s medical conditions. In addition, the
plaintiff has not alleged that Administrator Bannish became aware of the alleged
deliberate indifference to his medical needs through a report or appeal or request
and failed to take any action to remedy the inadequate medical care or that he failed
to in response to information regarding an occurrence of unconstitutional conduct.
Furthermore, there are no allegations or evidence that Daniel Bannish was negligent
in supervising the medical staff who allegedly treated the plaintiff or that he created
an unconstitutional policy or custom relating to the plaintiff’s medical care. Thus,
the plaintiff has not alleged or provided evidence to demonstrate the personal
involvement of Administrator Bannish in the alleged deliberate indifference to his
medical conditions. The motion for summary judgment is granted as to all claims of
deliberate indifference to medical needs against defendant Bannish.
Deliberate Indifference to Medical Needs
The plaintiff argues that he suffered from diabetes, high blood pressure and
high cholesterol when he arrived at Bridgeport Correctional and that the defendants
were deliberately indifferent to these medical conditions. Defendants James
O’Halloran, Rikel Lightner, Ann Marie Deeb, Nathan Hein and Walter Ford contend
that they provided the plaintiff with adequate medical treatment for his various
medical and mental health conditions. Thus, they claim that the plaintiff has failed
to state an Eighth Amendment claim of deliberate indifference to serious medical
At the time of the events set forth in the Amended Complaint, the plaintiff was
a pretrial detainee. Because “[a] person lawfully committed to pretrial detention has
not been adjudged guilty of any crime,” the Due Process clause of the Fourteenth
Amendment dictates that he or she may not be punished in any manner-neither
cruelly and unusually nor otherwise. Bell v. Wolfish, 441 U.S. 520, 536-37 (1979).
The Supreme Court has held that although the Eighth Amendment’s
protections of prisoners from cruel and unusual punishment due to the “deliberate
indifference to [their] serious medical needs” do not specifically apply to pretrial
detainees, the protections afforded pretrial detainees under the Due Process Clause
“are at least as great as the Eighth Amendment protections available to a convicted
prisoner.” See City of Revere v. Massachusetts General Hospital, 463 U.S. 239,
243-44 (1983) (citations omitted). In Cuocco v. Moritsugu, 222 F.3d 99 (2d Cir.
2000), the Second Circuit noted that “[w]e have often applied the Eighth Amendment
deliberate indifference test to pre-trial detainees bringing actions under the Due
Process Clause of the Fourteenth Amendment.” Id. at 106 (citing Weyant v. Okst,
101 F.3d 845, 856 (2d Cir. 1996)). Thus, the court will analyze the plaintiff’s
Fourteenth Amendment Due Process claims of deliberate indifference to the serious
medical needs under the Eighth Amendment deliberate indifference standard
applicable to convicted prisoners.
To prevail on a claim of deliberate indifference to medical needs, a plaintiff
must provide evidence of sufficiently harmful acts or omissions and intent to either
deny or unreasonably delay access to needed medical care or the wanton infliction
of unnecessary pain by prison personnel. See Estelle v. Gamble, 429 U.S. 97, 104-06
(1976). Mere negligence will not support a section 1983 claim; “the Eighth
Amendment is not a vehicle for bringing medical malpractice claims, nor a
substitute for state tort law.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003).
Thus, “not every lapse in prison medical care will rise to the level of a constitutional
violation,” id.; rather, the conduct complained of must “shock the conscience” or
constitute a “barbarous act.” McCloud v. Delaney, 677 F. Supp. 230, 232 (S.D.N.Y.
1988) (citing United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970)).
There are both subjective and objective components to the deliberate
indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert.
denied sub nom. Foote v. Hathaway, 513 U.S. 1154 (1995). Objectively, the alleged
deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298
(1991). The condition must produce death, degeneration or extreme pain. See
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Subjectively, the defendant
must have been actually aware of a substantial risk that the inmate would suffer
serious harm as a result of his actions or inactions. See Salahuddin v. Goord, 467
F.3d 263, 279-80 (2d Cir. 2006). Thus, the fact that a prison official did not alleviate a
significant risk that he should have but did not perceive does not constitute
deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834, 838 (1994).
The Second Circuit has identified several factors that are highly relevant to
the inquiry into the seriousness of a medical condition. For example, a medical
condition significantly affecting the inmate’s daily activities or causing chronic and
significant pain or the existence of an injury a reasonable doctor would find
important constitutes a serious medical need. See Chance, 143 F.3d at 702. In
addition, where the denial of treatment causes plaintiff to suffer a permanent loss or
life-long handicap, the medical need is considered serious. See Harrison v. Barkley,
219 F.3d 132, 136 (2d Cir. 2000).
With regard to the second prong of Deliberate indifference requires the
prisoner “to prove that the prison official knew of and disregarded the prisoner's
serious medical needs.” Chance, 143 F.3d at 702. Thus, prison officials must be
“intentionally denying or delaying access to medical care or intentionally interfering
with the treatment once prescribed.” Estelle, 429 U.S. at 104. A difference of
opinion between a prisoner and prison officials regarding medical treatment does
not, as a matter of law, constitute deliberate indifference. Chance, 143 F.3d at 703.
“Nor does the fact that an inmate feels that he did not get the level of medical
attention he deserved, or that he might prefer an alternative treatment, support a
constitutional claim.” Sonds v. St. Barnabas Hosp. Correctional Health Services,
151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (citing Dean v. Coughlin, 804 F.2d 207, 215
The defendants do not contest the fact that the plaintiff’s high blood pressure,
diabetes and high cholesterol were serious medical conditions. They argue,
however, that even though the plaintiff suffered from serious medical needs, they
were not deliberately indifferent to those needs. The plaintiff alleges that the
inadequate medical treatment provided by the defendants caused him to suffer
injuries to his eyes, liver, kidneys, peripheral blood vessels and nerves.
It is undisputed that the plaintiff arrived at Bridgeport Correctional on
September 17, 2009 and that prison officials transferred him to MacDougall on
February 4, 2010. Defendants O’Halloran, Lightner, Deeb, Hein and Ford were all
employed at Bridgeport Correctional during the time period from September 17,
2009 to February 4, 2010.
The plaintiff’s medical records reflect that upon his admission to Bridgeport
Correctional on September 17, 2009, a medical staff member completed a medical
and mental health screening form for the plaintiff. In response to questions from
the medical staff member, the plaintiff indicated that he suffered from two mental
health conditions as well as three medical conditions. Those medical conditions
were: hypertension, high cholesterol and diabetes. A notation on the form reflects
that the plaintiff had been prescribed three specific medications for the his mental
health disorders and unspecified medications for his hypertension, high cholesterol
and diabetes. The medical staff member recommended that the plaintiff be seen by
medical and mental health professionals in the future. (See Defs.’ Rule 56(a)1
Statement, Attachment D, Ex. 1.)
The Affidavit of Dr. Mark Buchanan and the plaintiff’s medical records reflect
that during the time period from September 17, 2009 through February 10, 2010,
various medical and mental health providers at Bridgeport Correctional, including
Dr. O’Halloran, examined and treated the plaintiff for his mental health conditions
and his hypertension/high blood pressure, high cholesterol and diabetes
conditions. Medical staff requested, received and reviewed the plaintiff’s medical
records from prior prison facilities as well as a prior mental health provider in order
to properly treat the plaintiff’s medical and mental health conditions. The medical
providers at Bridgeport Correctional including Dr. O’Halloran prescribed medication
for the plaintiff’s medical and mental health conditions, issued orders that the
plaintiff’s medical conditions be monitored closely and placed the plaintiff on
medically indicated diets in an effort to treat and reverse the plaintiff’s medical
conditions. (See id.)
The plaintiff’s medical records, test results and medication administration
sheets reflect that the medical and mental health staff at Bridgeport Correctional
thoroughly evaluated and examined the plaintiff on a regular basis, referred the
plaintiff for appropriate testing and monitored and treated the plaintiff’s medical and
mental health conditions with medication as well as with medically indicated diets.
When a test result or plaintiff’s symptoms or complaints reflected that the plaintiff’s
current medication or treatment was not working adequately, medical staff
responded appropriately by making changes to the dosage of the medication,
discontinuing the medication or treatment, adding another medication or applying a
different form of treatment. The medical records reveal that treatment for the
plaintiff’s medical and mental health conditions continued after he was transferred
to MacDougall. (See id.)
Although the plaintiff alleged in his Amended Complaint that the medical
treatment or lack of medical treatment provided by the defendants caused him to
suffer injuries to his eyes, liver, kidneys, peripheral blood vessels and nerves, he
has neglected to submit any evidence to corroborate these allegations. Moreover,
there is no information in the plaintiff’s medical records or test results to suggest
that the plaintiff suffered any of these types of injuries. Because the plaintiff has
failed to offer any evidence to contradict the medical records, test results and
Affidavit of Dr. Buchanan regarding his treatment at Bridgeport Correction from
September 2009 to February 2010, he has not demonstrated that defendants James
O’Halloran, Rikel Lightner, Ann Marie Deeb, Nathan Hein and Walter Ford were
deliberately indifferent to his serious medical needs. The court concludes that there
are no issues of material fact in dispute regarding the appropriate and
comprehensive medical treatment provided by the defendants and they are entitled
to judgment as a matter of law. The motion for summary judgment is granted on the
ground that defendants O’Halloran, Lightner, Deeb, Hein and Ford were not
deliberately indifferent to the plaintiff’s serious medical needs.
The Defendants’ Motion for Summary Judgment [Doc. No. 46] is GRANTED.
The Clerk is directed to enter judgment for the defendants and close this case.
SO ORDERED this 28th day of March 2012, at Hartford, Connecticut.
Vanessa L. Bryant
United States District Judge
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