Gaskin v. Albreski et al

Filing 9

PRISCS- INITIAL REVIEW RULING AND ORDER denying 6 Motion for Summary Judgment; denying as moot 8 Motion for Order. Signed by Judge Alvin W. Thompson on 3/8/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------CHRISTOPHER GASKIN,
:
Plaintiff,
:
:
v.
:
:
ALBRESKI and
:
STEVE SWAN,
:
Defendants.
:
-------------------------------

PRISONER
CASE NO. 3:11-cv-834 (AWT)

RULING AND ORDER
The plaintiff is currently incarcerated at Garner
Correctional Institution in Newtown, Connecticut (“Garner”) and
has filed a civil rights complaint pro se under 28 U.S.C. § 1915.
The plaintiff names as defendants Podiatrist Albreski and Health
Services Administrator Steve Swan as defendants, who are both
employed at Corrigan Correctional Institution (“Corrigan”).

The

plaintiff has filed a motion for summary judgment.
I.

Civil Rights Complaint
Pursuant to 28 U.S.C. § 1915A(b), the court must review

prisoner civil complaints against governmental actors and
“dismiss ... any portion of [a] complaint [that] is frivolous,
malicious, or fails to state a claim upon which relief may be
granted,” or that “seeks monetary relief from a defendant who is
immune from such relief.”

Id.

Rule 8 of the Federal Rules of

Civil Procedure requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2).

Although detailed

allegations are not required, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.

A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Ashcroft v.

Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (internal
quotation marks and citations omitted).

A complaint that

includes only “‘labels and conclusions,’ ‘a formulaic recitation
of the elements of a cause of action’ or

‘naked assertion[s]’

devoid of ‘further factual enhancement,’ ” does not meet the
facial plausibility standard.

Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 557 (2007)).

Although courts still

have an obligation to liberally construe a pro se complaint, see
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the complaint
must include sufficient factual allegations to meet the standard
of facial plausibility.
A.

Facts

The plaintiff alleges that in 2000, he jumped from a third
story window and landed on his feet.

After his arrest, Hartford

Police Officers took him to the hospital where x-rays of his feet
revealed bone spurs and old fractures from gunshot wounds.

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The

plaintiff arrived at Northern Correctional Institution in a
wheelchair and remained incarcerated at Northern until September
or October 2008, when prison officials transferred him to Garner.
At Garner, medical officials diagnosed him as suffering from
severe foot fungus, acute arthritis, bone spurs and old fractures
in both feet and a gunshot wound in one foot.

In November 2008,

Garner prison officials transferred him to Corrigan.
At Corrigan, the conditions affecting the plaintiff’s feet
became worse.

Medical officials diagnosed the plaintiff as

suffering from hypertension and diabetes.

The plaintiff takes

medication for both conditions.
At one time, a medical supervisor issued a bottom bunk pass
to the plaintiff for one year, but the pass expired prior to the
filing of this action.

The plaintiff has experienced severe

pain, cramping, numbness and tingling in his feet as well as
infected toenails on both feet.

A visiting podiatrist prescribed

an anti-fungal cream for the plaintiff’s toenails, but the
plaintiff never received the cream.
The plaintiff alleges that he is an African American.

He

claims that defendant Albreski issued a medical pass for sneakers
to another inmate who was a “Caucasian-American,” but did not
issue him a medical pass for the same type of sneakers.

(See

Compl. at 2.)
The plaintiff also asserts that on two occasions, defendant
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Albreski recommended that he be given cortisone injections to
relieve foot pain, but another physician at Corrigan, Dr.
Chouhan, would not permit him to receive the injections because
they might cause him to go into a diabetic coma.

Neither Dr.

Chouhan nor defendant Albreski offered an alternative treatment
for the plaintiff’s foot pain.
B.

Discussion

The plaintiff asserts claims pursuant to 42 U.S.C. §§ 1981
and 1983 and sues the defendants in their official and individual
capacities.

He seeks declaratory and injunctive relief and

monetary damages.
1.

Section 1981

Section 1981 provides in pertinent part:
All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts, to sue, be parties, give evidence,
and to the full and equal benefits of all
laws and proceedings for the security of
persons and property as is enjoyed by white
citizens, and shall be subject to like
punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to
no other.
42 U.S.C. § 1981(a).

To state a claim under section 1981, the

plaintiff must allege that he is a member of a racial minority
and was subjected to racial discrimination concerning at least
one of the activities enumerated in the statute, i.e., he was
prevented from making and enforcing contracts, suing and being
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sued or giving evidence.
Jenrette

See Mian v. Donaldson, Lufkin &

Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).

The

plaintiff fails to allege interference with any of the enumerated
activities.

Thus, his section 1981 claim fails as a matter of

law, and it is dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
2.

Section 1983

The plaintiff alleges that during his confinement at
Corrigan, he submitted a Grievance and request for a Health
Services Review regarding his various medical conditions
affecting his feet.

He alleges that Health Administrator Steve

Swan did not properly process the Grievance or Health Services
Review in accordance with Department of Correction Administrative
Directives.
State-created inmate administrative remedy procedures do not
create a protected liberty interest.

Thus, Fourteenth Amendment

due process protections are not implicated regardless of the
actions taken by the defendants in connection with plaintiff’s
administrative filings.

See Rhodes v. Hoy, No. 9:05-CV-836, 2007

WL 1343649, at *2 (N.D.N.Y. May 5, 2007).

Courts of appeal have

held that inmates do not have a constitutionally protected
liberty interest in having prison officials comply with
institutional grievance procedures.

See, e.g., Grieveson v.

Anderson, 538 F.3d 763, 772 (7th Cir. 2008); Thomas v. Warner,

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237 Fed. Appx. 435, 437-38 (11th Cir. 2007); Rhoades v. Adams,
194 Fed. Appx. 93, 95 (3d Cir. 2006); Geiger v. Jowers, 404 F.3d
371, 373-74 (5th Cir. 2005) Ramirez v. Galaza, 334 F.3d 850, 860
(9th Cir. 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993) (per curiam).

Thus, to the extent that the complaint may

be construed to assert a due process claim regarding any
institutional grievances, the complaint fails to state a
cognizable claim.
Even if allegations of improper processing of grievances
stated a claim for relief, the plaintiff has not alleged that
defendant Swan failed to properly respond to or handle the
grievances and health services requests filed by him.

Attached

to the complaint is one request for a Health Services Review
filed by the plaintiff on October 9, 2009 and one Grievance form
filed by the plaintiff on September 29, 2010.1

On October 19,

2009, in response to the request for a Health Services Review, an
unidentified individual indicated that he or she had advised the
plaintiff that his foot issues had been referred to a podiatrist
who would review the issues during the plaintiff’s visit to the
podiatry clinic in November.

The court cannot discern how the

handling of the plaintiff’s request did not meet the Department
1

There are several other attachments to the complaint.
Those documents were either submitted when the plaintiff was
incarcerated at Garner or were directed to medical professionals
other than defendant Swan.
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of Correction’s Administrative Directives.

See State of

Connecticut Department of Correction Administrative Directive
8.9, Health Services Review (“Upon receipt of the . . . Inmate
Administrative Remedy Form, the [Health Services Coordinator]
(HSR) shall contact the inmate within 10 days in writing or in
person, to determine if informal resolution can be reached.

If

informal resolution cannot be obtained, the HSR coordinator shall
schedule a Health Services Review Appointment with a physician,
as soon as possible . . . to determine what action, if any,
should be taken.”).
On October 23, 2010, in response to the plaintiff’s
September 29, 2010 Grievance, a Licensed Practical Nurse (“LPN”)
at Corrigan denied the grievance and indicated that the plaintiff
was a “No Show.”

State of Connecticut Administrative Directives

9.6, Inmate Administrative Remedies, provides that Correctional
staff have thirty days to respond to a Level 1 grievance.

If the

Level 1 grievance is denied or if correctional officials fail to
respond in a timely manner, the inmate must appeal the denial to
Level 2.

A response to the Level 2 grievance will be issued

within thirty days.

See Administrative Directive 9.6(6)(A)-(K)

(www.ct.gov/doc/LIB/doc/PDF/AD/ad0906.pdf (last visited Sept. 27,
2011).

In this instance, the nurse responded within thirty days

to the plaintiff’s grievance.

The court can not discern how the

nurse’s response violated the Administrative Directives.
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Furthermore, the plaintiff was not precluded from appealing the
denial of the grievance.

The court concludes that the plaintiff

has not alleged sufficient facts to state a plausible claim of a
violation of his due process rights against Health Services
Administrator Swan.

Accordingly, the claims against defendant

Swan are dismissed.

See 28 U.S.C. § 1915A(b)(1).

The plaintiff claims that on the same date that defendant
Albreski refused to issue him a medical pass for sneakers that
would properly fit his feet, defendant Albreski issued a medical
pass for sneakers to a “Caucasian-American” inmate.
at 2.)

(See Compl.

The plaintiff also asserts that defendant Albreski

recommended that he be given cortisone injections in his feet to
relieve pain, but another physician at Corrigan, Dr. Chouhan,
refused to permit him to undergo the injections because the
injections could adversely affect his diabetes.

Neither Dr.

Chouhan nor defendant Albreski offered an alternative to the
plaintiff to treat his foot pain.

The court concludes that the

plaintiff has stated plausible equal protection and deliberate
indifference to medical needs claims against defendant Albreski.
Thus, the section 1983 claims against defendant Albreski shall
proceed.
II.

Motion for Summary Judgment
The plaintiff moves for summary judgment, claiming that

there are no issues of material fact in dispute and he is
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entitled to judgment as a matter of law.

In support of his

motion for summary judgment, the plaintiff has filed a statement
of material facts not in dispute, an affidavit and a memorandum.
Rule 56(a)1 of the Local Civil Rules of the United States
District Court for the District of Connecticut requires that a
motion for summary judgment be accompanied by “a document
entitled ‘Local Rule 56(a)1 Statement,’ which sets forth in
separately numbered paragraphs meeting the requirements of Local
Rule 56(a)3 a concise statement of each material fact as to which
the moving party contends there is no genuine issue to be tried.”
Rule 56(a)3 requires that each statement in the Rule 56(a)1
Statement
be followed by a specific citation to (1) the
affidavit of a witness competent to testify
as to the facts at trial and/or (2) evidence
that would be admissible at trial. The
affidavits, deposition testimony, responses
to discovery requests, or other documents
containing such evidence shall be filed and
served with the Local Rule 56(a)1 . . .
Statement[] in conformity with Fed. R. Civ.
P. 56(e).
D. Conn. L. Civ. R 56(a)3.

This specific citation requirement

applies to pro se litigants as well as to attorneys.

(See id.)

Local Rule 56(a)4 also requires that the movant file a memorandum
in support of his motion.
The plaintiff’s Local Rule 56(a)1 Statement consists of
thirteen paragraphs.

(See Doc. No. 6-2.) The plaintiff also

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filed Exhibits A-D, consisting of four pages from his prison
medical file, in support of his Local Rule 56(a)1 Statement.
(See Doc. No. 7.)

Paragraphs three, seven and twelve are not

followed by any citations to affidavits or admissible evidence.
Paragraphs one, two, four and nine include citations to Exhibits
A-D, but those same paragraphs and paragraphs five, six, eight,
ten and eleven include citations to unidentified hospital
records, unidentified medical records, a medical pass, medical
grievances and plaintiff’s “actual feet.”

The plaintiff has not

submitted copies of these items of documentary evidence with his
Local Rule 56(a)1 Statement as required by D. Conn. L. Civ. R
56(a)4.

In addition, the “‘specific citation’ obligation of”

Local Rule 56(a)3 requires both attorneys and pro se litigants to
“cite to specific pages when citing to deposition or other
transcripts or to documents longer than a single page in length.”
D. Conn. L. Civ. R 56(a)3.
Because the plaintiff’s Local Rule 56(a)1 Statement does not
comply with sections three and four of Local Rule 56(a), the
motion for summary judgment is denied without prejudice.

The

plaintiff may file a new motion for summary judgment at a later
stage of the litigation.
ORDERS
In accordance with the foregoing analysis, the court enters
the following orders:
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(1)

All claims brought pursuant to 42 U.S.C. § 1981 against

both defendants and all claims brought pursuant to 42 U.S.C.
§ 1983 against defendant Swan are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1).

The section 1983 equal protection and deliberate

indifference to medical needs claims against defendant Albreski
shall proceed.
(2)

The plaintiff’s Motion for Summary Judgment [Doc. No.

6] is DENIED without prejudice to re-filing at a later stage of
the litigation.

The Motion for Service [Doc. No. 8] is DENIED as

moot.
(3)

If the plaintiff chooses to appeal this decision, he

may not do so in forma pauperis, because such an appeal would not
be taken in good faith.
(4)

See 28 U.S.C. § 1915(a)(3).

Within fourteen (14) days of this order, the U.S.

Marshals Service shall serve the summons, a copy of the Complaint
[doc. #1] and this Order on defendant Albreski in his official
capacity by delivering the necessary documents in person to the
Office of the Attorney General, 55 Elm Street, Hartford, CT
06141.
(5)

Within fourteen (14) days of this Order, the Pro Se

Prisoner Litigation Office shall ascertain from the Department of
Correction Office of Legal Affairs the current work address for
defendant Albreski and mail waiver of service of process request

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packets to him in his individual capacity at his current work
address.

On the thirty-fifth (35th) day after mailing, the Pro

Se Office shall report to the court on the status of the waiver
request.

If defendant Albreski fails to return the waiver

request, the Clerk shall make arrangements for in-person service
by the U.S. Marshals Service and the defendant shall be required
to pay the costs of such service in accordance with Federal Rule
of Civil Procedure 4(d).
(6)

The Pro Se Prisoner Litigation Office shall send a

courtesy copy of the complaint and this Order to the Connecticut
Attorney General and the Department of Correction Legal Affairs
Unit.
(7)

The Pro Se Prisoner Litigation Office shall send

written notice to the plaintiff of the status of this action,
along with a copy of this Order.
(8)

Defendant Albreski shall file his response to the

complaint, either an answer or motion to dismiss, within seventy
(70) days from the date of this Order.

If the defendant chooses

to file an answer, he shall admit or deny the allegations and
respond to the cognizable claims recited above.

He may also

include any and all additional defenses permitted by the Federal
Rules.
(9)

Discovery, pursuant to Federal Rules of Civil Procedure

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26 through 37, shall be completed within seven months (210 days)
from the date of this Order.

Discovery requests need not be

filed with the court.
(10) All motions for summary judgment shall be filed within
eight months (240 days) from the date of this Order.
(11) Pursuant to Local Civil Rule 7(a), a non-moving party
must respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed.

If no response is filed, or

the response is not timely, the dispositive motion can be granted
absent objection.
SO ORDERED this 8th day of March, 2012, at Hartford,
Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge

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