Vializ v. Dzurenda et al

Filing 50

RULING granting 45 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 3/24/14. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID VIALIZ,

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Plaintiff,
V.
JAMES DZURENDA, et al.,
Defendant.

Case No. 3:11CV00059 (RNC)

RULING
Plaintiff David Vializ, a former Connecticut inmate
proceeding pro se, brings this action under 42 U.S.C. § 1983
against Connecticut Department of Correction employees claiming
that they were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment.

Defendants seek

summary judgment on the ground that plaintiff has failed to
present evidence from which a reasonable jury could infer that
they knew of and disregarded a substantial risk to his health as
required to demonstrate deliberate indifference.

I agree and

therefore grant the motion for summary judgment.
I. Background
The evidence in the record, viewed most favorably to the
plaintiff, shows the following.
diabetes.

Plaintiff suffers from Type II

Pl.'s Opp'n, Pl.'s Aff. ¶ 8 (ECF No. 47, Attach. A).

The shoes he received upon his transfer to Carl Robinson
Correctional Institution, although the appropriate size (8), were
too narrow, id. ¶ 9, and caused cracked heels, calluses, spurs,
bleeding, a broken toe nail, irritated skin, fungus and pain,

none of which plaintiff had prior to his imprisonment.
17.

Id. ¶¶ 7,

The injuries were exacerbated because plaintiff, who is

overweight, had to walk approximately one mile per day to and
from the dining hall and other prison activities, id. ¶ 10, and
because he was allergic to the rubber heels of the shoe.

Pl.'s

Am. Compl. ¶ 11 (ECF No. 14).
On October 8, 2010, plaintiff submitted a commissary order
form requesting a pair of size 8-wide shoes; two months later he
was informed that the shoes he requested were not available in
that size.
A).

See Pl.'s Opp'n, Pl.'s Aff. ¶ 12 (ECF No. 47, Attach.

Plaintiff alleges that he was unable to obtain wide-width

shoes or diabetic therapeutic shoes via the commissary order
form.

Id. ¶ 13.

The order form indicates that the only shoe

readily available in a wide width was the "Brown Desert Boot."
Pl.'s Opp'n (ECF No. 47-1, Ex. 2).1

The form contains the

following message: "If you have a size that is not available in
any of these choices the commissary will find a shoe in your size
for you.

The commissary will not find footwear for reasons other

than size restrictions.
the medical department."

Medical issues must be handled through
Id.

1

The form on its face does not support the assertion made
in the affidavit of Joel R. Ide that "[s]everal of the items
found on the order form can be purchased in wide widths." Defs.'
Mot. for Summ. J., Aff. of Joel R. Ide, ¶ 10 (ECF No. 45-7,
Attach. D). That said, plaintiff does not submit evidence
indicating that he was unable to order any other shoe in a size 8
wide.
2

Plaintiff requested an appointment with a podiatrist.

On

November 15, 2010, he was seen in the Carl Robinson medical
department by defendant Helen Macuil, a licensed practical nurse,
and Dr. Glassman, a podiatrist.
(ECF No. 47, Attach. A).

Pl.'s Opp'n, Pl.'s Aff. ¶ 19

He told Macuil that he was diabetic and

allergic to rubber and that his shoes were causing him injury and
pain, Pl.'s Am. Compl. ¶¶ 10-11 (ECF No. 14), and he asked her to
order a pair of Dr. Scholl's therapeutic shoes.
Pl.'s Aff. ¶ 19 (ECF No. 47, Attach. A).

Pl.'s Opp'n,

Plaintiff alleges that

Macuil and Glassman mocked his request, told him that he could
order shoes through the commissary, and prescribed Urea cream,
which he alleges is not supposed to be applied on broken skin.
Id. ¶¶ 19, 21.

Medical records indicate that at the time of this

appointment with Dr. Glassman, plaintiff had a broken toe nail
and dry, cracked feet with no signs of infections.

Defs.' Mot.

for Summ. J., Aff. of Henry Fedus ¶ 29 (ECF No. 45-4, Attach. G).
According to Dr. Fedus, a podiatrist, neither cracked toe nails
nor dry scaly skin warrant special footwear or put plaintiff at
risk of diabetic complications.

Id.

The next day, November 16, 2010, plaintiff wrote to
defendant Erinn Dolan, a medical supervisor, requesting widesoled shoes.2

Pl.'s Opp'n, Pl.'s Aff. ¶ 23 (ECF No. 47, Attach.

2

The request reads, in full: "Dear Medical supervisor
Dolan. I saw H. Macuil RN Podiatry on November 15, 2010. I am
suffering from calluses on my feet, due to the fact, that I have
3

A); Pl.'s Mot. to Submit Disc., Inmate Complaint (ECF No. 41, Ex.
3, at *14). Dolan denied the request, indicating that wide-sized
shoes were available in the commissary.

Pl.'s Mot. to Submit

Disc., Inmate Complaint (ECF No. 41, Ex. 3, at *14)
On December 17, 2010 plaintiff was in pain and bleeding and
went to the medical department.

A nurse gave him bandages and

ointment, which he asserts were insufficient or inappropriate to
treat his condition.

Pl.'s Am. Compl. ¶¶ 24-25 (ECF No. 14).

was referred to podiatry.

He

Pl.'s Opp'n, Pl.'s Aff. ¶ 25 (ECF No.

47, Attach. A).
The next day, December 18, 2010, plaintiff met with
defendant Nancy Hill, a registered nurse, in the infirmary.
told her about his painful and bleeding feet.

Id. ¶ 26.

He

She

told him he was wasting her time, Pl.'s Am. Compl. ¶ 32 (ECF No.
14), and denied him medical attention or treatment.
Pl.'s Aff. ¶ 26 (ECF No. 47, Attach. A).
name, which she perceived as a threat.
34 (ECF No. 14).

Pl.'s Opp'n,

Plaintiff asked for her
Id.,; Pl.'s Am. Compl. ¶

She then instructed a correctional officer to

give plaintiff a ticket and send him to segregation as
punishment.

Pl.'s Opp'n, Pl.'s Aff. ¶ 26 (ECF No. 47, Attach.

wide feet. I need a pair of wide, size 8 shoes with your
permission. 9601 is attached." Pl.'s Mot. to Submit Disc.,
Inmate Complaint (ECF No. 41, Ex. 3, at *14). In the attached
Inmate Request Form, plaintiff described pain in his toe and a
callus and reiterated his need for wide-soled shoes. Pl.'s Mot.
to Submit Disc., Inmate Complaint (ECF No. 41, Ex. 3, at *15).
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A).

The officer did not think that plaintiff had made a threat

and sent him to his dormitory.

Id.

Although plaintiff did not

receive an assessment or treatment, Hill deducted $3.00 from his
inmate account.

Pl.'s Am. Compl. ¶ 38 (ECF No. 14).

Plaintiff

complained to Dolan that Hill had denied him treatment,
threatened, and harassed him; Dolan's written response indicated
that he had been referred to podiatry.

Pl.'s Opp'n, Pl.'s Aff. ¶

27 (ECF No. 47, Attach. A); Pl.'s Opp'n, Inmate Request Form (ECF
No. 47-1, Ex. 7 at *2).3

Ultimately, plaintiff bought Reebok

sandals, intended as shower shoes, to accommodate his wide feet.
Pl.'s Opp'n, Pl.'s Aff. ¶ 28 (ECF No. 47, Attach. A).
In February 2011, plaintiff was transferred to Osborn
Correctional Institute, where he sought treatment for his feet.
Pl.'s Am. Compl. ¶¶ 51, 62 (ECF No. 14).

He refused treatment

when it was offered, however, because Macuil was working that
day.

Id. at ¶ 65; Pl.'s Mot. to Submit Disc., Inmate Request

Form (ECF No. 41, Ex. 6 at *35).

In March 2011, he was

3

The plaintiff's complaint reads: "Dear Medical Supervisor
Dolan, this is a complaint about a nurse that refused to give me
medical treatment. I am entitled to medical treatment under the
ADA. Here name is RN Hill, she worked 8-4 today Sat. She did
not let me show her what is wrong with me and she threaten me
with a ticket after I asked her name. She told me that I been
writing to many request papers, she harassed me. I don't trust
your medical staff. Please explain to her that under the ADA she
was supposed to examine and treat me if she really is a nurse. .
. ." Dolan responded: "You were seen 12/17/10 by nursing and
referred to podiatry - the issue you describe is not an ADA
issue." Pl.'s Opp'n, Inmate Request Form (ECF No. 47-1, Ex. 7,
at *2).
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transferred to Willard-Cybulski Correctional Institute, where he
refused treatment because he would have been seen by Macuil.
Pl.'s Am. Compl. ¶¶ 68-70 (ECF No. 14); Pl.'s Mot. to Submit
Discov., Inmate Request Form (ECF No. 41, Ex. 6, at *36).

On May

6, 2011, the plaintiff was examined by Dr. Fedus, who diagnosed
him with neurpoathy and dry skin.

Pl.'s Am. Compl. ¶ 92 (ECF No.

14); Defs.' Mot. for Summ. J., Aff. of Henry Fedus ¶ 37 (ECF No.
45-4, Attach. G).

Fedus prescribed medicine to treat the

neuropathy and fungus and told plaintiff to obtain wide footwear
from the commissary.

Pl.'s Am. Compl. ¶ 93 (ECF No. 14); Defs.'

Mot. for Summ. J., Aff. of Henry Fedus ¶ 37 (ECF No. 45-4,
Attach. G).
Plaintiff was released from custody on November 18, 2011.
Pl.'s Opp'n, Pl.'s Aff. ¶ 31 (ECF No. 47, Attach. A).

Post-

release medical examinations indicated fungus, calluses, a
calcaneal spur and minimal degenerative osteophytosis.

Id. at ¶¶

33, 35, 37-38; Pl.'s Opp'n, Medical Records (ECF No. 47-2, Pl.'s
Exs. 10, 12-15).

On June 6, 2012, a podiatrist at the Charter

Oak Health Center prescribed plaintiff orthotic shoes and
inserts.

Pl.'s Opp'n, Pl.'s Aff. ¶ 36 (ECF No. 47, Attach. A);

Pl.'s Opp'n, Medical Records (ECF No. 47-2, Ex. 13).
On this basis, plaintiff asserts a claim of deliberate
indifference to his medical needs against defendants Macuil, Hill
and Dolan, contending that he was wrongfully denied appropriate

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treatment for his feet and should have been given orthopedic
footwear or wide-width shoes.
II. Motion for Summary Judgment
The defendants argue that they are entitled to summary
judgment because no reasonable jury could find that their failure
to provide plaintiff with special footwear or other treatment for
his feet constituted deliberate indifference in violation of the
Eighth Amendment.

To prevail on his claim, plaintiff must

satisfy a two-part test.

First, the alleged deprivation of

adequate medical care must be objectively "sufficiently serious."
Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Second, the prison

official must consciously disregarded a substantial risk of
serious harm to the inmate.

Id. at 837.

"Because the Eighth Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute for state tort law,
not every lapse in prison medical care will rise to the level of
a constitutional violation."

Smith v. Carpenter, 316 F.3d 178,

184 (2d Cir. 2003); see also Cuoco v. Moritsugu, 222 F.3d 99, 107
(2d Cir. 2000)(medical malpractice claims do not necessarily
establish deliberate indifference, although they might rise to
that level if there is conscious disregard of a substantial risk
of serious harm).

The Constitution does not entitle inmates to

the medical treatment of their choice.
F.2d 207, 215 (2d Cir. 1986).

Dean v. Coughlin, 804

Instead, "[s]o long as the

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treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
Amendment violation."
Cir. 1998).

Chance v. Armstrong, 143 F.3d 698, 703 (2d

Moreover, "[t]he judgment of prison doctors is

presumed valid unless the prisoner provides evidence that the
decision was such a substantial departure from accepted
professional judgment, practice or standards as to demonstrate
that the person responsible actually did not base the decision on
such judgment."

Richardson v. Blanchette, 3:03CV1621 (AWT), 2006

WL 496010, at *7 (D. Conn. Mar. 1, 2006).
For purposes of the present motion, defendants concede that
plaintiff, a diabetic, had a serious medical condition.

They

contend, however, that a jury could not find that they acted with
the requisite culpable state of mind.

I agree.

First, as to defendant Dolan, plaintiff does not provide
evidence from which a jury could reasonably infer that she
consciously disregarded a substantial risk of serious harm.
Plaintiff's claim against Dolan arises out of her alleged
mishandling of two complaints that he submitted about his medical
care.

His first complaint, submitted November 16, 2010, noted

that he suffered from calluses and toe pain because of wide feet
and requested wide shoes; the complaint did not mention diabetes.
Pl.'s Mot. to Submit Discov., Inmate Request Form (ECF No. 41,
Ex. 3, at *15).

Dolan had access to plaintiff's medical file,

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but the file would have indicated that his treating podiatrist
did not recommend special footwear.

Moreover, Dolan's response

to the complaint indicates that she believed that plaintiff could
acquire wide shoes in the commissary, id.; indeed, he was
required to do so if such a request was made for size purposes
and not at the recommendation of a medical professional.
Pl.'s Opp'n (ECF No. 47-1, Ex. 2).

See

Similarly, Dolan's response

to plaintiff's second complaint - which he submitted on December
18, 2010 grieving Hill's conduct during his appointment with her
- does not demonstrate that she disregarded a substantial risk of
serious harm.

Dolan explained, as his medical records indicated,

that plaintiff had been referred to podiatry.

Pl.'s Opp'n,

Inmate Request Form (ECF No. 47-1, Ex. 7, at *2).

Plaintiff does

not present evidence to suggest that Dolan should have known that
such a referral would be or was insufficient to address his
ailments.4
Summary judgment is also warranted as to the claim against
Hill.

Plaintiff alleges that Hill refused to treat him.

The day

before he saw Hill, however, plaintiff received ointment and
bandages for his feet from a nurse and was referred to podiatry.

4

As described above, plaintiff subsequently refused
podiatry examinations on two occasions before receiving care from
Dr. Fedus; in a prior ruling, the Court determined that plaintiff
had failed to allege a plausible claim of deliberate indifference
against Dr. Fedus. Ruling and Order, Nov. 8, 2011 (ECF No. 19)
at *5.
9

Pl.'s Am. Compl. ¶¶ 24-25(ECF No. 14); Pl.'s Opp'n, Pl.'s Aff. ¶
25 (ECF No. 47, Attach. A).

Plaintiff does not provide evidence

suggesting that Hill could or should have provided any additional
treatment, or that her failure to do so disregarded a known,
serious risk to his feet.

Dr. Fedus, upon review of plaintiff's

medical files, noted that the calluses and dry feet with which
plaintiff presented on December 17, the day before he saw Hill,
did not warrant diabetic footwear nor put plaintiff at risk of
complications associated with diabetes.

Defs.' Mot. for Summ.

J., Aff. of Henry Fedus ¶ 31 (ECF No. 45-4, Attach. G).
Plaintiff has presented no evidence to the contrary.

Moreover,

to the extent plaintiff needed specialized podiatry care, Hill, a
registered nurse, could not have provided it; indeed, plaintiff
already had a pending podiatry referral.

See Defs.' Mot. for

Summ. J., Aff. of Patricia Wollenhaupt ¶ 9 (ECF No. 45-6, Attach.
E)("[I]f the inmate-patient requires treatment beyond the skill
of defendant Hill, a medical visit with the appropriate medical
provider will be arranged and appropriate treatment will
follow.").
Defendant Macuil is also entitled to summary judgment.
Macuil is not a podiatrist.

She is a licensed practical nurse

accountable for rendering bedside care and mental health services
when the services of a registered nurse are not required.
8.

The evidence does not support a finding that she made

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Id. ¶

decisions about plaintiff's care.

As discussed above, the record

shows that she was present on November 15, 2010, when plaintiff
was seen by Dr. Glassman, who diagnosed a cracked toe nail and
dry skin, conditions that neither Dr. Glassman nor Dr. Fedus
determined to warrant special footwear.

Defs.' Mot. for Summ.

J., Aff. of Henry Fedus ¶ 29 (ECF No. 45-4, Attach. G).

The

record shows that plaintiff subsequently refused to be treated by
Macuil.

Plaintiff alleges that Macuil mocked him.

verbal abuse does not violate the Constitution.

However,
Purcell v.

Coughlin, 790 F.2d 263, 265 (2d Cir. 1986).
Plaintiff's evidence concerning the diagnoses and care that
he received after his release from prison does not provide a
basis for an Eighth Amendment claim.

That a doctor prescribed

orthotic footwear for the plaintiff months later would not permit
a jury to reasonably find that any of the defendants consciously
disregarded a substantial risk of serious harm to the plaintiff,
especially given the defendants' reasonable expectation that he
could obtain properly fitting footwear through the commissary.
III. Conclusion
Accordingly, defendants' motion for summary judgment (ECF
No. 45) is hereby granted.

The Clerk may enter judgment in favor

of the defendants and close the file.

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So ordered this 24th day of March, 2013.

/s/RNC
Robert N. Chatigny
United States District Judge

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