Siminausky v. Sean et al

Filing 89

ORDER granting 82 Motion for Summary Judgment as to all defendants except Alxander and as to whom default is entered for failure to appear in his individual capacity. Any motions to set aside default or for entry of default judgment shall be filed within 21 days of this order. The parties are directed to refer to the attached document. Signed by Judge Vanessa L. Bryant on 01/25/2017. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ANDREW SIMINAUSKY,
Plaintiff,
v.
SEAN, et al.,
Defendants.

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CASE NO. 3:14-cv-00243 (VLB)
January 25, 2017

RULING GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AS TO ALL DEFENDANTS EXCEPT ALXANDER AND AS TO WHOM DEFAULT IS
ENTERED FOR FAILURE TO APPEAR IN HIS INDIVIDUAL CAPACITY [DKT. 82]
Plaintiff, Andrew Siminausky, currently incarcerated at the Garner
Correctional Institution in Newtown, Connecticut, has filed this action pro se. The
named Defendants in the amended complaint are Connecticut Managed Health
Care Providers (“CMHC”) Supervisor Sean, Dr. Cary R. Freston, Dr. Sayeed Naqvi,
Americans with Disabilities Act (“ADA”) Coordinator Captain McCormick, Deputy
Warden Gary Wright, Property Officer Melendez, CMHC, the Department of
Correction

(“DOC”)

and

Correctional

Officer

Alxander.

Plaintiff

initially

characterized his amended complaint as asserting Eighth Amendment and Due
Process claims based on his transfer from a level 3 facility to a level 4 facility
solely because of his disability. In the section of the amended complaint listing
claims for relief, Plaintiff lists three claims: (1) Defendants Naqvi, Freston and
McCormick denied Plaintiff his due process right to refuse medical care; (2)
Defendant Melendez denied Plaintiff medically-approved items; and (3) Defendant
Alxander used excessive force against him.

Defendants move for summary

judgment and Plaintiff has filed a memorandum in opposition. For the reasons
that follow, Defendants’ motion is granted.
Standard of Review
A motion for summary judgment may be granted only where there are no
issues of material fact in dispute and the moving party is therefore entitled to
judgment as a matter of law. Fed. R. Civ. P. Rule 56(a); In re Dana Corp., 574 F.3d
129, 151 (2d Cir. 2009). The moving party may satisfy his burden “by showing—
that is pointing out to the district court—that there is an absence 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) (internal quotation marks and citations
omitted). Once the moving party meets this burden, the nonmoving party must
set forth specific facts showing that there is a genuine issue for trial. Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence as would
allow a rational jury to find in his favor in order to defeat the motion for summary
judgment.

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

The

nonmoving party “must offer some hard evidence showing that its version is not
wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).

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Facts1
Plaintiff suffers from Raynaud’s Disease. Dr. Freston evaluated Plaintiff on
August 16, 2013, and discussed the management and treatment of his condition.
During that visit, Plaintiff told Dr. Freston that his insulated socks had been
stolen, he had been prescribed special cotton gloves, and he was taking
Nifedipine which was helping his condition.
disruptions caused by Raynaud’s Disease.
signs of other diseases.

Dr. Freston noted no skin

There was scant swelling and no

Dr. Freston noted that Plaintiff was not wearing his

prescribed gloves on the day of the exam. Plaintiff counters that it was a warm
day in August.

Dr. Freston also indicated that Plaintiff was intermittently

noncompliant with his medication.
Dr. Freston recommended that Plaintiff be housed in a climate-controlled
facility because temperature fluctuation is a trigger for Raynaud’s disease. Dr.
Freston examined Plaintiff’s gloves and concluded that the gloves could be used
as needed to keep Plaintiff’s hands warm.
socks would help.

Dr. Freston opined that insulated

Although Plaintiff previously had been approved for soft

restraints, Dr. Freston noted no need for special restraints or special

1
The facts are taken from the parties’ Local Rule 56(a) Statements and the supporting
exhibits submitted by both parties. 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. D. Conn. L. Civ. R. 56(a)2 and 56(a)3. Although
Plaintiff has submitted a Local Rule 56(a)2 Statement, some of his denials do not include the
required citations to record evidence. The Court does not credit denials lacking the required

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transportation. These opinions, intended to help Plaintiff manage his Raynaud’s
Disease, were based upon Dr. Freston’s professional medical judgment.
Although Dr. Freston recommended that the Plaintiff be transferred to a
climate-controlled facility, he was powerless to transfer the Plaintiff because
inmate transfer decisions are not made by doctors.

To obtain an award of

damages, the plaintiff must demonstrate that each Defendant was personally
involved in the alleged constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249
(2d Cir. 2010). Inmate transfer decisions are made exclusively by the Offender
Classification and Population Management unit.
Plaintiff alleges that he submitted requests to Supervisor Sean, ADA
Coordinator McCormick, and Deputy Warden Wright to prevent his transfer to a
climate-controlled facility. Defendant Sean stated that he would have deferred to
Dr. Freston’s judgment in making any recommendation for transfer.
Discussion
The Defendants move for summary judgment on four grounds. First they
argue that Plaintiff has not shown that Defendants Freston, Sean, McCormack
and Wright were deliberately indifferent to a serious medical need in violation of
the Eighth Amendment.

Second, Plaintiff has not established the personal

involvement of Defendants Sean, McCormack and Wright in any alleged
deprivation. Third, all Defendants are protected by qualified immunity. Fourth, all
claims against the Defendants in official capacity and any claims against DOC

citations.

4

and CMHC are barred by the Eleventh Amendment.
I.

Deliberate Indifference to a Serious Medical Need
Defendants first argue that Plaintiff fails to allege facts to support a claim

for deliberate indifference to a serious medical need because Raynaud’s Disease
is not a serious medical need and, even if it were, the Defendants were not
deliberately indifferent to that need.
To state a claim for deliberate indifference to a serious medical need,
Plaintiff must show both that his medical need was serious and that Defendant
acted with a sufficiently culpable state of mind. See Smith v. Carpenter, 316 F.3d
178, 183-84 (2d Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There
are both objective and subjective components to the deliberate indifference
standard.

See id.

Objectively, the alleged deprivation must be “sufficiently

serious.”

Chance v. Armstrong, 143 F.3d 698, 702 (1998); see Hathaway v.

Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citing with approval dissent from Nance
v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990), which states a “serious medical need” is
“one that may produce death, degeneration, or extreme pain”)). 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, 281 (2d Cir. 2006). Negligence that would support a claim
for medical malpractice does not rise to the level of deliberate indifference and is
not cognizable under section 1983. See id. at 280. Nor does a difference of
opinion regarding what constitutes an appropriate response and treatment
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constitute deliberate indifference. See Ventura v. Sinha, 379 F. App’x 1, 2 (2d Cir.
2010); Chance v. Armstrong, 143 F.3d at 702.
The Second Circuit has identified several factors that are “highly relevant”
to determining whether a medical need is serious. The court should consider
whether the condition is one that a reasonable doctor or patient would find
important and worthy of treatment, whether the condition significantly affects the
prisoner’s daily activities, or whether the condition causes chronic and
substantial pain. See Chance, 143 F.3d at 702-03.
There are no reported cases in the Second Circuit analyzing whether
Raynaud’s disease constitutes a serious medical need.

Plaintiff filed another

section 1983 case regarding the denial of boots allegedly required to treat his
Raynaud’s disease. See Siminausky v. Plante, No. 3:08CV1937(MRK), 2010 WL
2574115, at *3 (D. Conn. Mar. 12, 2010).

In that case, the court questioned

whether Plaintiff’s condition was objectively serious enough to warrant
protection under the Eighth Amendment, but granted summary judgment
because the only Defendant was not a medical professional and had no
knowledge of Plaintiff’s condition. Id. at *3-4. One other court has found that a
diagnosis of Raynaud’s disease is sufficient to constitute a serious medical need.
See Smith v. Township of Prairieville, No. 1:15-cv-131, 2016 WL 3661852, at *8
(W.D. Mich. July 11, 2016) (objective prong satisfied where, even though the
condition was not so obvious that a lay person would recognize the need for
treatment, plaintiff provided verifying medical evidence showing that he had been
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diagnosed and treated for Raynaud’s disease and he presented “verifying
medical evidence” showing that he suffered bilateral frostbite of his hands and
feet due to the officers’ alleged deliberate indifference to his serious medical
needs by forcing him to stand outside in the 20º cold).
In this case, Plaintiff is being treated for Raynaud’s disease.
meets the first factor.

Thus, he

He presents no evidence suggesting that his daily

activities are significantly affected or that the disease causes chronic or
substantial pain.2

Although Plaintiff has submitted pages from the internet

describing rare, severe symptoms and possible complications, ECF No. 85 at 19,
22, he provides no medical evidence suggesting that he suffers from these
symptoms or complications. While Plaintiff's Raynaud’s disease was worthy of
nominal treatment, his condition was managed by the treatment and did not
significantly affect the Plaintiff's daily activities or cause him chronic and
substantial pain.

The conclusion that Plaintiff's Raynaud's disease was not

acute is based largely on the absence of evidence to the contrary, but is
buttressed by Plaintiff's refusal to be transferred to a climate-controlled facility,
which was diagnosed to enhance the treatment of his condition. Absent contrary
medical evidence and in view of Plaintiff's rejection of further measures to treat

2

Plaintiff alleges in the amended complaint that he experienced severe pain in December
2012 as a result of lack of heat in his housing unit. ECF No. 37, ¶¶ 15-16. Subsequently, he was
seen at the University of Connecticut Health Center and directed to use gloves and insulated
socks to keep his hands and feet warm. Id. ¶ 19. Plaintiff has gloves and socks. He does not
allege that, when using these articles, his condition interfered with daily activities. Further,
Plaintiff presents no objective evidence to support complaints of pain.

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his condition, the Court finds that the Plaintiff has not established that his
Raynaud's disease is a serious medical need.
Even if he did, however, summary judgment should be granted on the
deliberate indifference claims. Dr. Freston determined, through exercise of his
medical judgment after examination of Plaintiff, that avoidance of temperature
fluctuations could best be achieved through transfer to a temperature-controlled
facility.

He concluded that Plaintiff’s gloves were sufficient to keep his hands

warm and suggested insulated socks.

Dr. Freston also opined that special

restraints and special transportation were not required.
An exercise of medical judgment that results in a disagreement regarding
treatment is not cognizable under the Eighth Amendment. Demaio v. Wong, 100
F.3d 943 (2d Cir. 1996) (unpublished decision) (citing Estelle v. Gamble, 429 U.S.
97, 107 (1976)); see also Hathaway, 37 F.3d at 70 (“We do not sit as a medical
board of review. Where the dispute concerns not the absence of help, but the
choice of a certain course of treatment, or evidences mere disagreement with
considered medical judgment, we will not second guess the doctors.” (internal
quotation marks and citation omitted)); Keitt v. Schun, No. 11-CV-438, 2014 WL
347053, at *5 (W.D.N.Y. Jan. 30, 2014) (prison doctor does not act with deliberate
indifference

even

if

he

disagrees

with

outside

specialist’s

treatment

recommendation so long as his decision is based on his medical judgment
(internal quotation marks and citation omitted)). Dr. Freston has submitted an
affidavit stating that he has examined Plaintiff and reviewed his chart.
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Dr.

Freston’s treatment decisions were based on his medical judgment and
examinations. Plaintiff has provided no evidence suggesting that Dr. Freston’s
decision was not based on sound medical judgment. See Benitez v. Palmer, 654
F. App’x 502, 505 (2d Cir. 2016) (fact that other doctors subsequently disagreed
with prescribed treatment is insufficient to overcome disagreement regarding
treatment and create material disputes issue). Thus, any claim against Defendant
Freston for deliberate indifference to a serious medical need fails. Defendants’
motion for summary judgment is granted as to the claim against Dr. Freston.
Plaintiff also asserts deliberate indifference claims against Defendants
Melendez and Naqvi. The Court determined above that Plaintiff failed to present
evidence showing that his Raynaud’s disease constitutes a serious medical
need. As he has not presented evidence supporting the objective component of
the deliberate indifference standard, his claims against Defendants Melendez
and Naqvi also fail.
II.

Personal Involvement
Defendants argue that summary judgment must be granted as to any

deliberate indifference claims against Defendants Nursing Supervisor Sean, ADA
Coordinator McCormick and Deputy Warden Wright for lack of personal
involvement.
Defendants McCormick and Wright are not medical professionals. Thus,
they were entitled to rely on the medical opinion of Dr. Freston that transfer to a
climate-controlled facility is medically appropriate. See Williams v. Bailey, No.
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9:09-CV-0643(DNH/DEP), 2010 WL 3881024, at *8 (N.D.N.Y. Sept. 3, 2010) (reliance
on medical clearance form signed by doctor negated finding that custodial staff
were deliberately indifferent to serious medical needs); Joyner v. Greiner, 195 F.
Supp. 2d 500, 506 (S.D.N.Y. 2002) (prison administrator entitled to rely on
opinions of medical professionals concerning medical treatment). Defendants’
motion for summary judgment also is granted as to the claims against
Defendants McCormick and Wright.
In addition, Plaintiff is challenging his transfer to another facility.

He

argues that the Defendants have violated his right to due process by not
permitting him to decline medical treatment, i.e., the order for transfer. To obtain
an award of damages, the plaintiff must demonstrate that each defendant was
personally involved in the alleged constitutional deprivation. Farid v. Ellen, 593
F.3d at 249. The Defendants have provided evidence that transfer decisions are
exclusively made by the Office of Offender Classification and Population
Management. Plaintiff has provided no evidence showing that Defendants Sean,
McCormick and Wright, had authority to prevent Plaintiff’s transfer. Thus, no
Defendant was involved in the transfer decision and there is no basis for a claim
against any Defendant regarding Plaintiff’s transfer.
III.

Due Process
In his amended complaint, Plaintiff alleges that Defendants McCormick

violated his right to due process by failing to respond to grievances. However,
Plaintiff has no constitutional right to effective institutional grievance procedures.
10

See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate
claim of entitlement to a grievance procedure.”); Cosby v. Erfe, No. 3:15-cv-161
(DJS), 2016 WL 2930886, at *6 (D. Conn. May 19, 2016) (“The plaintiff, however,
has no constitutionally protected right to any particular response to his
grievance.”); Hayes v. Cty. Sullivan, 853 F. Supp. 2d 400, 434 (S.D.N.Y. 2012)
(stating plaintiff does not have a cognizable section 1983 claim against Smith for
not adequately addressing the grievance). Accordingly, there is no legal basis for
Plaintiff’s claim for denial of due process and this claim is dismissed.
IV.

Claims Against DOC and CMHC
Plaintiff has named DOC and CMHC as Defendants in the caption of the

original complaint. In his memorandum, Plaintiff states that he did not name DOC
or CMHC as Defendants. ECF No. 85 at 14. The Court considers any claims
against DOC and CMHC to be withdrawn. Even if the claims were not withdrawn,
they are not cognizable in this action.
CMHC is a division of the University of Connecticut Health Center, a state
agency. DOC is a state agency. Neither a state agency, nor any subdivision
thereof, is considered a person within the meaning of section 1983. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989) (Eleventh Amendment
immunity extends to “governmental entities that are considered ‘arms of the
State’”); see also Ferla v. Correctional Managed Health Care, No. 3:15-cv1303(MPS), 2015 WL 5826812, at *2 (D. Conn. Oct. 2, 2015) (CMHC, a division of a
state agency, is not a person subject to suit under section 1983).
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V.

Defendant Alxander
Plaintiff alleges in the Amended Complaint that Defendant Alxander used

excessive force against him.

ECF No. 37, ¶ 34.

Although the Defendants

acknowledge this claim in their memorandum, they do not address it or argue
that summary judgment should enter on the excessive force claim. Accordingly,
this claim remains pending.
Conclusion
Defendants’ motion for summary judgment [ECF No. 82] is GRANTED. The
Court considers the claims against DOC and CMHC to be withdrawn. The due
process claim is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
As the motion acknowledges but does not challenged the excessive force
claim motion, the case will proceed on the individual capacity claims against
Defendant Alxander for use of excessive force.
Defendant Alxander has appeared only in his official capacity. ECF No. 15.
Defendant Alxander was personally served in his individual capacity. ECF No. 72.
Accordingly,

DEFAULT

IS

HEREBY

ENTERED

AGAINST

DEFENDANT

ALXANDER.

ANY MOTIONS TO SET ASIDE DEFAULT OR FOR ENTRY OF

DEFAULT JUDGMENT SHALL BE FILED WITHIN TWENTY-ONE (21) DAYS FROM
THE DATE OF THIS ORDER.
SO ORDERED this 25 day of January 2017, at Hartford, Connecticut.
/s/
Vanessa L. Bryant
United States District Judge
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