Spencer v. Kenny et al

Filing 54

ORDER denying 48 Motion for Summary Judgment. See attached Ruling & Order for further detail. Signed by Judge Robert N. Chatigny on 9/30/2014. (Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DERRICK R. SPENCER,

:

Plaintiff,

:

V.

:

C.O. BYARS,

PRISONER
CASE NO. 3:11-cv-50(RNC)

:

Defendant.

:
RULING AND ORDER

Plaintiff Derrick R. Spencer, a Connecticut inmate
proceeding pro se and in forma pauperis, brings this action under
42 U.S.C. § 1983 against Correctional Officer Byars alleging
wanton and unnecessary infliction of pain in violation of the
Eighth Amendment based on the manner in which Byars drove the
plaintiff to and from the hospital after the plaintiff fell and
was injured on October 10, 2010.

Officer Byars has moved for

summary judgment arguing that (1) plaintiff has failed to exhaust
administrative remedies and (2) the evidence does not support an
Eighth Amendment claim.

Plaintiff has not responded to the

motion for summary judgment in the manner required by Local Rule
56, although the docket shows that he received notice of the
applicable rules.

Though his failure to comply with Local Rule

56 could be relied on to grant the defendant’s motion, the Court
declines to impose such a sanction and considers plaintiff’s
version of the facts as set forth in his verified submissions as

1

responsive to defendant’s Local Rule 56(a)(1) Statement.

See

Wilks v. Elizabeth Arden, Inc., 507 DF. Supp.2d 179, 185 (D.
Conn. 2007); Duverge v. United States, No. 3:10cv1922(JGM), 2014
WL 1366194,*2 (D. Conn. April 7, 2014).
The verified amended complaint alleges that Byars drove the
prison van in an "exceedingly fast and reckless" manner, "hitting
every bump and pothole"; that the plaintiff pleaded with Byars to
slow down because the "jolting and bouncing" was causing "extreme
pain"; and that Byars ignored the plaintiff's pleas and continued
to drive recklessly because he wanted to get off work as soon as
possible that night.

Plaintiff’s other verified submissions

further allege that Byars laughed at his screams of pain on the
way to and from the hospital.

Given these verified allegations,

the Court declines to grant summary judgment.
A. Failure to Exhaust
Defendant submits evidence that correctional counselor
Melissa Marino has “carefully and thoroughly reviewed all logs
and inmate grievances” filed by the plaintiff and although he
filed a grievance about the condition of the stairs leading to
his October 10, 2010 fall, there is no grievance about his
transportation to and from th hospital on that date.
Mot. for Summary Judgment (ECF No. 48) at 2-3.

See Def.’s

Defendant argues

that plaintiff’s failure to file a grievance bars him from
proceeding here.
2

Pursuant to the Prison Litigation Reform Act, an inmate must
exhaust available administrative remedies before bringing an
action related to prison conditions.

42 U.S.C. § 1997e(a).

In

the Second Circuit, a three-part inquiry is required to assess
whether a prisoner’s failure to exhaust administrative remedies
is fatal to his claims.
(2d Cir. 2004).

Hemphill v. New York, 380 F.3d 680, 686

First, “the court must ask whether

administrative remedies were in fact ‘available’ to the
prisoner.”

Id.

Second, “[t]he court should also inquire as to

whether the defendants may have forfeited the affirmative defense
of non-exhaustion by failing to raise or preserve it, or whether
the defendants’ own actions inhibiting the inmate’s exhaustion of
remedies may estop one or more of the defendants from raising the
plaintiff’s failure to exhaust as a defense.”
omitted).

Id. (citations

Finally, if administrative remedies were available and

defendants are not estopped and have not forfeited their nonexhaustion defense, “the court should consider whether ‘special
circumstances’ have been plausibly alleged that justify the
prisoner’s failure to comply with administrative procedural
requirements.”

Id. (internal quotations omitted).

In the present case, plaintiff submitted an
administrative grievance -- an Inmate Administrative Remedy Form
– dated November 3, 2010, addressing his fall “which resulted in
me being transported to UConn Hospital.”
3

Attachment, Def.’s Mot.

for Summary Judgment (ECF No. 48-2) at 8.

He requested “that a

non-slippery material be put on stairs to prevent similar
incidents.”

Id.

A disposition dated December 10, 2010 states:

“I will forward your administrative remedy to the safety
committee for further consideration.”

A plaintiff “must exhaust

his administrative remedies with regard to each claim he asserts
in his federal complaint.”

Baldwin v. Arnone, No. 3:12-cv-243

(JCH), 2013 WL 628660, at *5 (D. Conn. Feb. 19, 2013).

The

grievance that plaintiff filed pertains to the condition of the
stairs and not any claims against Byars arising from
transportation to and from the hospital; thus, it is insufficient
to exhaust administrative remedies for purposes of this action.1
That plaintiff submitted a grievance addressing a related claim
about the same incident demonstrates that an administrative
grievance process was available and belies any claims that
plaintiff was not aware of the process or how to use it.

See

Pl.’s Mot. for Summary Judgment (ECF No. 44) at 4 (asserting that
plaintiff did not thoroughly pursue administrative complaints
because, among other reasons, he was not made aware of
administrative remedy protocol upon arrival to Garner).

1

Nor would the grievance form alone be sufficient for exhaustion
purposes, as indicated on the form itself: the box marked “you have
exhausted DOC’s Administrative Remedies” has not been checked. See
Attachment, Def.’s Mot. for Summary Judgment (ECF No. 48-2) at 8.

4

As to the second prong of the Hemphill test, however,
defendant appears to have waived the affirmative defense by
failing to raise it in his prior motion to dismiss filed in
January 2013, approximately nine months before the filing of the
present motion when discovery was still ongoing (ECF No. 19).
See Louis-Charles v. Courtwright, No. 9:11-cv-147(GLS/TWD), 2014
WL 457951 at *5 (N.D.N.Y. Feb. 4, 2014)(defendants not entitled
to summary judgment on exhaustion grounds when they failed to
preserve the exhaustion defense by pleading it in their answers);
Harris v. Higley, No. 05-CV-40S, 2009 WL 185989 at *9-10
(W.D.N.Y. Jan. 26, 2009) (denying summary judgment when
defendants did not assert failure to grieve as an affirmative
defense in their answer and only raised it for the first time in
the motion for summary judgment); Leybinsky v. Millich, No. 98cv-387, 2002 WL 2202577 (W.D.N.Y. Sept. 29, 2004)(same).
Even if nonexhaustion could reasonably be raised for the first
time at this stage, after discovery has closed, plaintiff’s
verified submissions assert that he was threatened with
retaliation if he filed a grievance, which weighs against
granting summary judgment.

Under the Hemphill test, a defendant

forfeits the affirmative defense of nonexhaustion if he takes
action to prevent a prisoner from using the grievance procedure,
such as threatening him with retaliation.

See McGee v. W., 9:10-

CV-0238 MAD/GHL, 2012 WL 716273, at *3 (N.D.N.Y. Jan. 4, 2012)
5

report and recommendation adopted, 9:10-CV-238 MAD/TWD, 2012 WL
716195 (N.D.N.Y. Mar. 5, 2012).

Here, plaintiff does not allege

that Byars threatened him, but rather that other correctional
officers deterred him from filing a grievance by threatening him
with retaliation.

Pl.’s Mot. for Summary Judgment (ECF No. 44)

at 4-5 (“[T]he plaintiff did indeed complain to at least one or
more correctional officer(s) and one or more medical staff
member(s), and was told by at least one individual that if the
plaintiff pursued administrative remedy or kept on verbally
complaining; the plaintiff would most possibly be retaliated
against.

Not only did this happen, but then I was also

approached and questioned by a staff member.”).

Even if threats

by others are insufficient to require forfeiture under the second
prong, threats of physical retaliation may constitute “special
circumstances” that excuse a prisoner’s failure to exhaust
administrative remedies under the third part of the Hemphill
test.

See Hemphill v. New York, 380 F.3d 680, 690 (2d Cir. 2004)

(“[T]he court should also determine, even if some or all of the
defendants are not estopped from asserting non-exhaustion as an
affirmative defense, and even if Surber's threats did not suffice
to render the grievance procedures actually unavailable to
Hemphill, whether the threats themselves justified Hemphill's
failure to file a grievance in the manner prescribed by DOCS.
Once again, the appropriate standard . . . is whether ‘a
6

similarly situated individual of ordinary firmness,’ would have
been deterred from following regular procedures. And, like an
inmate claiming retaliation, Hemphill should have the opportunity
to develop facts that would demonstrate that [defendants'
actions] would deter a reasonable inmate from pursuing
grievances.”)(internal quotation marks and citations omitted).
Thus, even if a defense of nonexhaustion remained available at
this stage, plaintiff’s allegation of threatened retaliation
would prevent summary judgment.
B. Insufficient Evidence
Defendant also seeks summary judgment on the ground that a
reasonable jury could not find an Eighth Amendment violation.
The issue is whether the plaintiff’s version of the relevant
events, accepted as true, would permit a jury to find in his
favor.

At his deposition, plaintiff testified that Officer Byars

“knew I was hurt but yet on the way to the hospital to UConn he
was switching lanes at a high rate of speed, stopping short
because he was almost rear-ending people. He was driving
recklessly meaning he was hitting bumps, switching lanes,
stopping short, accelerating.
(ECF No. 48-1) at 49.

And he never put my seatbelt on.”

Plaintiff further testified that Byars was

“zigging in and out of traffic, speeding” and “switching lanes
suddenly,” which jostled the plaintiff.
7

Id. at 61.

Although he

does not purport to know Byars’ exact speed, he testified that
Byars was “driving faster than the fastest vehicle on the road”
because “he was passing everybody” and estimates that “[i]f
everybody was doing even five miles an hour under the speed
limit, he was doing
limit.”

. . . let’s just say 5 miles over the speed

Id. at 61-62.

Plaintiff describes moaning when the

vehicle hit bumps and thinks that he said something to Byars
about his discomfort within a couple of minutes after getting on
the highway.

Id. at 62.

Finally, he explains that because he

felt abrupt jolts that reminded him of driving over potholes on
different roads, he thinks Byars drove over potholes at a high
rate of speed.

Id. at 69.

In addition to his deposition

testimony, he presents sworn statement that en route to the
hospital he screamed and pleaded for Byars to drive more
carefully because of his pain, Pl.’s Affidavit (ECF No. 44-2) at
4, and that Byars was “looking back at, and laughing at the
plaintiff’s screams of pain while he . . . knew without doubt
that he is the cause of the plaintiff’s pain.”
Affidavit (ECF No. 44-1) at 5.

See Pl’s

Plaintiff states that, while in

the hospital, Byars said to him: “Spencer, I won’t be mad at you
if we get back in time for me to clock out on time” and admitted
that he was driving quickly so as not to miss playing basketball
that morning.

Pl.’s Affidavit (ECF No. 44-2) at 5.

Finally,

despite hearing plaintiff’s diagnosis at the hospital, Byars
8

allegedly drove in the same reckless manner on the way back to
the correctional facility, “ignoring and even laughing” as
plaintiff screamed and begged him to drive more carefully.
at 6.

Id.

These allegations counter claims in Byars’ affidavit that

he “drove inmate Spencer to the hospital as carefully as [he]
possibly could have driven,” “was travelling with the normal flow
of traffic and never drove unreasonably fast nor . . . purposely
hit any potholes,” and “did not change lanes unnecessarily nor .
. . use the brakes of the vehicle unnecessarily.”

(ECF No. 48-2)

at 11.
Crediting plaintiff’s version, and giving him the benefit of
permissible inferences, a jury could reasonably find that Officer
Byars persisted in inflicting significant pain on the plaintiff
during the drive to and from the hospital, not for any valid
purpose, but maliciously and sadistically to make him suffer.
Such wanton conduct violates the contemporary standards of
decency embodied in the Eighth Amendment.

See Hudson v.

McMillian, 503 U.S. 1, 9 (1992)(when prison officials use force
to cause harm maliciously and sadistically, contemporary
standards of decency always are violated whether or not
significant injury is evident).

Wright v. Goord, 554 F.3d 255,

270 (2d Cir. 2009)(absence of significant injury does not end
inquiry under the Eighth Amendment because standards of decency

9

are violated even in the absence of such injury if the
defendant’s use of force was malicious or sadistic).
Accordingly, the defendant’s motion for summary judgment is
hereby denied.
So ordered this 30th day of September 2014.
________/s/ RNC____________
Robert N. Chatigny, U.S.D.J.

10