Carter v. Revine et al
ORDER granting in part and denying in part 45 Motion for Summary Judgment. The parties are directed to consider settlement positions and within 21 days of the date of this order to contact Magistrate Judge Richardson for a settlement conference. Should settlement not be appropriate, the parties are to file supplemental briefing on the merits of the case pursuant to directions set forth in the attached decision. Signed by Judge Vanessa L. Bryant on 05/15/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DR. REVINE, et al.,
Civil Action No.
May 15, 2017
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION FOR LEAVE TO
AMEND AMENDED COMPLAINT [DKTS. 45 & 52]
Plaintiff Shaquon Carter (“Carter”), an individual incarcerated by the
Connecticut Department of Correction (“DOC”), seeks monetary damages for
purported Eighth Amendment violations relating to Defendants’ failure to facilitate
and provide him with medical treatment of his fractured thumb while he was located
in the Restrictive Housing Unit (“RHU”) for twelve days.
The current named
Defendants are Dr. Revine, Captain James Watson (“Watson”), Deputy Warden
Denise Walker (“Walker”), Lieutenant Julie Stewart (“Stewart”), Captain Edward
Guzman (“Guzman”), Lieutenant Mauvinchi, Lieutenant Scott Hadlock (“Hadlock”),
and Jane Does 1-7 (collectively, “Defendants”). Presently before the Court are
Defendants’ Motion for Summary Judgment and Plaintiff’s Motion to Amend the
Second Amended Complaint contingent upon the Court’s summary judgment
ruling. For the reasons stated herein, the Court DENIES in part and GRANTS in
part Defendants’ Motion for Summary Judgment and GRANTS Plaintiff’s Motion to
Amend the Second Amended Complaint.
Relevant Procedural History
Carter filed his initial Complaint pro se on October 20, 2014, bringing claims
of lost property, excessive force, deliberate indifference to personal safety, and
deliberate indifference to serious medical needs. [See Dkt. 1 (Compl.)]. On October
2, 2015, counsel entered an appearance on Carter’s behalf. [See Dkt. 9 (Pignatiello
Notice of Appearance)]. Four days later, the Court entered its Initial Review Order
allowing claims against Defendants Revine, Watson, Walker, and Guzman to
proceed and granting leave to amend the complaint to plausibly allege claims for
deprivation of property, excessive force, and deliberate indifference to his safety;
identify how the remaining two Defendants acted with deliberate indifference to his
serious medical needs; and name any new Defendants who also may have been
involved by who are not specifically named in the caption. [See Dkt. 12 (Initial
Review Order), at 1]. Counsel timely filed the Amended Complaint on November 9,
2015. [See Dkt. 17 (Am. Compl.)].
On January 15, 2016, Defendants filed a Motion to Dismiss the Amended
Complaint in part, pursuant to Fed. R. Civ. P. 16(b)(1) and 12(b)(6). [See Dkt. 26-1
(Mot. Dismiss)]. Upon direction by the Court, Defendants re-filed the Motion to
Dismiss to comport with the Court’s Chambers Practices. [See Dkt. 28 (Order); Dkt.
29 (Am. Mot. Dismiss)].
Specifically, Defendants argued (1) the Court lacked
subject matter jurisdiction over all claims brought against Defendants in their
official capacities; and (2) the Amended Complaint failed to state a claim for (a)
intentional infliction of emotional distress against all Defendants, and (b) deliberate
indifference to a serious medical need against Dr. Revine. Id. at 2. Defendants did
not challenge Carter’s claim for money damages alleging deliberate indifference to
serious medical needs against Defendants Watson, Walker, Guzman, Stewart,
Mauvinchi, Hadlock, and Jane Does 1-7. Id. at 4. On February 9, 2016, the Court
granted in part and denied in part the Amended Motion to Dismiss, dismissing only
the claims against Defendants in their official capacities. [See Dkt. 31 (Order)].
By leave of the Court, Carter amended his complaint a second time on
February 24, 2016, to remove the claims against Defendants in their official
capacities. [See Dkt. 36 (Second Am. Compl.)]. This Second Amended Complaint
is now the operative complaint and names as Defendants Revine, Watson, Walker,
Guzman, Stewart, Mauvinchi, Hadlock, and Jane Does 1-7 in their official capacities
only. Defendants filed the Answer on March 8, 2016. [See Dkt. 38 (Answer)].
In compliance with the Court’s operative Scheduling Order, [Dkt. 43 (Am.
Scheduling Order)], Defendants filed the Motion for Summary Judgment on
October 3, 2016. [Dkt. 45-1 (Mot. Summ. J.)]. First, Defendants argue that summary
judgment should be granted as to Jane Does 1-7 because Carter never submitted
a discovery request for their identities.
Id. at 6.
Second, Defendants argue
summary judgment should be granted as to Dr. Revine and Lt. Mauvinchi because
there is no record of their employment and they have not been served. Id. at 6-7.
Third, Defendants argue summary judgment is warranted as to all other Defendants
because Carter failed to exhaust his administrative remedies as required under the
Prison Litigation Reform Act and Administrative Directives 8.9 and 9.6. See id. at
7-9. Carter filed his Objection to the Motion for Summary Judgment on November
3, 2016. [Dkt. 51-1 (Opp’n Mot. Dismiss)].
On the same day Carter also filed a Motion to Amend the Amended Complaint
contingent upon the Court denying Defendant’s Motion for Summary Judgment.
See id.; Dkt. 52 (Second Mot. Amend)]. Specifically, Carter requests leave to amend
the Second Amended Complaint to correctly identify three Defendants and make
the following changes: (1) Dr. Revine to Dr. Ruez, (2) Lt. Mauvinchi to Lt.
Matuszczak, and (3) Jane Doe 1 to Cheryl Estrom. [Dkt. 52, at 1-2]. Carter also
requests leave to remove Jane Does 2-7. Id. at 2.
Both the Motion for Summary Judgment and the Motion for Leave to Amend
the Amended Complaint are now fully briefed. Below the Court first addresses the
Motion for Summary Judgment as the Motion for Leave to Amend is dependent
upon its outcome.
On October 20, 2005, Carter was admitted to Manson Youth Center under the
custody of the Department of Correction. [Dkt. 45-2 (Local Rule 56(a)(1) Stmt., ¶ 1;
Dkt. 51-2 (Local Rule 56(a)(2) Stmt.), ¶ 1]. From 2005 to 2011, on multiple occasions
Carter has been discharged, readmitted, and transferred among different
correctional institutions. [Dkt. 45-2, ¶ 2; Dkt. 51-2, ¶ 2]. Since March 13, 2012, the
DOC has transferred Carter to different correctional institutions a total of 12 times.
[Dkt. 45-2, ¶ 3; Dkt. 51-2, ¶ 3]. Carter attended an Inmate Orientation upon each
new transfer wherein he received information about certain administrative
remedies and obtained the Inmate Handbook. [See Dkt. 45-2, ¶¶ 4-6; Dkt. 51-2, ¶¶
Carter acknowledges the Inmate Handbook explains inmate grievance
procedures. [See Dkt. 45-4 (Defs.’ Ex. B, Carter Dep.), at 12:19-21]. Carter filed
inmate grievances prior to 2014. [Dkt. 45-2, ¶ 7; Dkt. 51-2, ¶ 7].
The DOC transferred Carter from MacDougall-Walker Correctional Institution
(“MacDougall-Walker”) to Cheshire Correctional Institution (“Cheshire”) on
February 18, 2014. [Dkt. 45-3 (Deveau Aff.), at 63]. A few weeks later on March 6,
2014, Carter became involved in a physical altercation with another inmate. [Dkt.
45-2, ¶ 8; Dkt. 51-2, ¶ 8]. That same day Carter pleaded guilty to fighting and as a
result was placed in punitive segregation in the Restrictive Housing Unit (“RHU”)
for twelve days until March 18, 2014. [Dkt. 45-4, at 14:14-15:2; see Dkt. 45-3, at 72].
Upon Carter’s arrival in the RHU, a woman identified by the Defendants as
Nurse Cheryl Estrom visited his cell, which is captured on video. [Dkt. 45-2, ¶ 13;
Dkt. 51-2, ¶ 13]. The video indicates Estrom’s visit and examination of Carter for
injuries lasted under two minutes. [Dkt. 51-5 (Pl.’s Ex. C, Code Blue Video), at
11:19-end]. Estrom asked Carter to show her his injuries through the hole in the
door. Carter presented his left hand and forearm up to his elbow through the hole.
Id. at 11:50-56. Carter verbally stated his “left arm” was injured but also indicated
through physical gesture that he was injured in his hand and wrist region. Id. at
12:05-12:13. After making this gesture, Estrom asked him to make a fist with his
left hand. Id. at 12:14. Carter loosely bent his four fingers into his palm but did not
bend his thumb, which remained straight. Id. at 12:14-23.
Estrom did not ask
Carter if he was able to make a fist or to bend his thumb. Id. During this evaluation
Estrom looked at but did not palpate Carter’s left arm, hand, or wrist. She asked to
see “the other arm,” but did not ask him to make a fist with his right hand. Id. at
Again, Estrom looked at but did not palpate his “other arm.”
subsequently completed a Medical Incident Report (Form CN 6602). [Dkt. 45-5
(Defs.’ Ex. C, Incident Report), at 39]. Under the “Injury description” box, Estrom
“Observations/remarks,” “Wrists neg. L arm no abrasions or contusions. Full
ROM1 of hand, wrist, & elbow. R ear outer aspect ½” round superficial abrasion.”
A. Carter’s Experience While Housed in the RHU
On July 20, 2016, Carter submitted to a deposition by Defendants’ counsel
in which Plaintiff's counsel did not ask any questions. [Dkt. No. 45-4]. He testified
that every single day between March 6, 2014, and March 18, 2014, he told members
of the medical staff and correctional officers he had an injury. Id. at 16:11-23.
Specifically, Carter testified that he told correctional officers Watson, id. at 25:7-11,
Walker, id. at 26:4-10, Guzman, id. at 26:13-20, Stewart, id. at 26:22-27:9, and
Mauvinchi, id. at 12-18, about his injury.
Carter also testified that he filed grievances at Cheshire, stating specifically,
“[T]here was at least three at Cheshire Correctional because I had to follow the
chain of command, so I can’t just file the grievances, and I wasn’t there long
enough to do enough of them.” Id. at 28:19-29:2. Carter did not testify to the date
The Court presumes “ROM” means “range of motion,” as indicated in Defendants’
Local Rule 56(a)(1) Statement and admitted by Plaintiff in the Local Rule 56(a)(2)
Statement. [See Dkt. 45-2, ¶ 12; Dkt. 51-2, ¶ 12].
on which he filed these grievances, to whom they were addressed, the type of
grievance he filed, or in which box the grievances were placed. Nor did he offer
into evidence the receipt or response to any grievance. He only claims to have
handed a written medical request to Stewart to “put it in the box for medical,” id. at
26:22-27:1, but otherwise there is no information on the record about exactly how
any of the alleged grievances were filed.2
Regarding the content, Carter testified that he filed three grievances. First,
he claims he filed a grievance claiming he showed an unidentified nurse his injury,
told her he was in pain, requested medical treatment, but was not treated. Id. at
18:9-14. He testified that he did not receive a response and that he did not appeal
the nonresponse because he did not know that he could. Id. at 18:15-19. He also
testified that he received Inmate Handbooks and orientations describing the
grievance process at each facility to which he had been transferred. Id. at 10:1318. Second, he testified that he filed a grievance claiming he informed medical staff
that he injured his thumb or hand, but they did not help him. Id. at 16:25-17:3.
Third, he claims that he told Captain Watson, other correctional officers, or the
Deputy Warden that he was in pain due to his thumb injury but the correctional
officer failed to get him medical assistance. Id. at 19:25-20:6. Carter testified that
he did not receive a response to this grievance and did not file an appeal. Id. at
The Court surmises that Carter may be synonymously referring to medical
requests, inmate request forms, and grievances.
Carter also testified that he never filed a grievance claiming that he asked a
correction officer to contact the medical department for him but that his request
was ignored. Id. at 21:4-8. He admitted that he never filed a grievance claiming he
told Ms. Mathews from mental health his thumb was injured and he needed medical
attention, but she failed to procure such assistance. Id. at 21:22-22:2.
Three months after his deposition on October 21, 2016, Carter signed and
submitted an affidavit addressing the time period he spent in the RHU, which
contradicts some aspects of his deposition testimony. In it Carter avers facts not
included in his deposition testimony. [See Dkt. 51-6 (Pl.’s Ex. D, Carter Aff.)]. He
states that between March 6, 2014, and March 17, 2014, he wrote six Inmate Request
Forms (“CN 9601 Forms”) requesting medical treatment and that he gave them to
Mulligan, Deko, and other available employees because he did not have access to
the boxes to personally submit them. Id. ¶ 6. He believes the RHU protocol
requires all paperwork to be left on Watson’s desk for submission by him. Id. ¶ 7.
Carter’s declaration does not state the reason he did not have access to the
grievance deposit box or the provision of the Inmate Handbook of other DOC
pronouncement which led him to believe he could file a grievance by leaving it on
Watson’s desk. Administrative Directive 9.6, Inmate Administrative Remedies,
(“Directive 9.6”) instead requires all grievances to be “submitted by depositing
them in a locked box clearly marked as ‘Administrative Remedies’” and that “[t]he
Unit Administrator shall ensure that an adequate number of collection boxes are
accessible within the facility.”
[See Dkt. 45-13 (Defs.’ Ex. J, Administrative
Directive 9.6), § 5(C)]. Directive 9.6 also provides that “[a]ny inmate who needs
assistance in using the Inmate Administrative Remedies Process shall receive
assistance upon request.” Id. at § 5(B)(1).
Carter’s affidavit further states that he learned on March 12, 2014, that no
medical requests had been submitted on his behalf. Id. ¶ 8. On March 17, 2014, he
submitted an Inmate Administrative Remedy Form (“CN 9602 Form”) as a “written
grievance in reference to the lack of response to my requests for medical” and that
he handed the form to Deko. Id. ¶ 10. He wrote a supplemental letter to Walker
about the lack of medical care and also handed it to Deko, although he received no
Carter offers a statement purportedly authored by Inmate William Jones.
[Dkt. 51-11 (Pl.’s Ex. I, Jones Statement)]. The statement is signed but undated and
states, “I am writing this statement on my own free will. I attest that nobody forced
me to write this statement. I attest that the facts of this statement are true as I
remember.” Id. The statement is neither sworn nor made under penalty of perjury.
On a motion for summary judgment the Court may accept only evidence admissible
under the rules of Evidence. Fed. R. Civ. P. 56(c); see Raskin v. Wyatt Co., 125 F.3d
55 (2d Cir. 1997); Welch-Rubin v. Sandals Corp., No. 3:03CV481 (MRK), 2004 WL
2472280, at *1-2 (D. Conn. Oct. 20, 2004) (admitting affidavits); see also Beyene v.
Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988) (finding declaration
did not properly lay foundation for testimonial document when it merely claimed to
the document was a “[t]rue and correct cop[y]”). Rule 56(c) expressly permits the
Court to consider affidavits or declarations. Fed. R. Civ. P. 56(c). When, under any
United States law or any other rule such as the Federal Rules of Evidence, a matter
is required to be supported by a sworn declaration or an affidavit, the matter
alternatively may be proven by the unsworn declaration or statement, subscribed
by the maker as “true under penalty of perjury,” provided that it is dated and signed
and contains substantially the following language: “I declare (or certify, verify, or
state) under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. Executed on (date).” 28 U.S.C. § 1746. This
provision “allows a written unsworn declaration, certificate, verification, or
statement subscribed in proper form as true under penalty of perjury to substitute
for an affidavit.”
Fed. R. Civ. P. 56(c) advisory committee’s note to 2010
Both Carter’s affidavit and Jones’s statement were submitted through
Carter’s attorney. Unlike Carter’s affidavit, Jones’s statement is inadmissible as it
does not substantially comply with 28 U.S.C. § 1746. Compare Reynolds v. Sealift,
Inc., 311 F. App’x 422, 245 (2d Cir. 2009) (upholding district court’s decision to
exclude four unsworn affidavits lacking a precise date) to LeBoeuf, Lamb, Greene
& MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (acknowledging the
letter “substantially complied” when it was signed, dated, and stated, “Under
penalty of perjury, I make the statements contained herein”); Monahan v. NRA Grp.
L.L.C., No. 3:10-CV-00638 (JCH), 2011 WL 3901877, at *2 n.5 (D. Conn. Sept. 6, 2011)
(excluding “affidavit” that was not dated, notorized, or signed under penalty of
perjury as it did not meet requirements for sworn affidavit or unsworn declaration).
The Court presumes Plaintiff’s counsel knows the difference between the two and
submitted the most persuasive material in opposition to summary judgment that
he had available. Accordingly, the Court finds that it would be futile to withhold its
decision on summary judgment to afford counsel an opportunity to obtain an
affidavit or declaration.
B. Medical Treatment for Carter’s Injury
The clinical record indicates medical staff attended to Carter on March 14,
2014, eight days after he entered the RHU and was examined by Estrom. There is
nothing in the record explaining what prompted this examination. The record
states the following:
[Dkt. 47 (Defs.’ Ex. E, Sealed), at 145].3 The only written record in evidence of any
medical request during his time in the RHU is his request for a mental health
consultation documented on March 10, 2014, which does not reference his swollen
left thumb or hand. [See Dkt. 45-2, ¶ 15; Dkt. 51-2, ¶ 15].
Carter’s hand was first examined by a physician on March 18, 2014. On that
date he was examined by Dr. Ruez who ordered X-rays, wrapped Carter’s left hand
in an ACE bandage, and prescribed Motrin for pain. [Dkt. 45-2, ¶ 16; Dkt. 51-2, ¶
16]. The X-ray results indicated a fracture on the base of the first metacarpal of his
left hand. [Dkt. 45-2, ¶ 17; Dkt. 51-2, ¶ 17].
On March 19, 2014, the DOC transferred Carter from Cheshire to CorriganRadgowski Correctional Center (“Corrigan-Radgowski”). [Dkt. 45-2, ¶ 17; Dkt. 51-
All redacted information refers to content appearing in sealed documents that is
not otherwise quoted by the Plaintiff.
2, ¶ 17]. One week later on March 26, 2014, the URC reviewed and approved of a
request for Carter to receive an expedited orthopedic evaluation of his left hand.4
[Dkt. 47, at 111]. The URC review form contains a clinician signature and Carter’s
signature dated April 3, 2014, acknowledging the following: “URC Decision to be
Reviewed by Facility MD and Discussed with Inmate Before Filling.” Id. These
signatures indicate that nearly a month after his first complaint, on April 3, 2014,
the URC approved the request for Carter to be examined by an orthopedics
specialist. [See Dkt. 45-2, ¶ 19; Dkt. 51-2, ¶ 19].
More than one week after the URC approval and five weeks after his initial
complaint, on April 11, 2014, orthopedics specialist, examined Carter’s left hand.
[Dkt. 45-2, ¶ 20; Dkt. 51-2, ¶ 20]. He made the following assessment:
a long discussion with him explaining that five weeks status post his
injury, which could have readily been treated with a closed pinning if
we could have gone into it acutely, would be quite a challenging
operation due to the small size of the bony fragments, the amount of
healing that has already taken place, and the chance that we could
comminute even further the small bony fragments or make him worse.
I did explain to him that he could develop
arthritis of the thumb carpal metacarpal joint whether we operate on
him or whether we do not operate on him,
The URC request does not make clear who ordered the review.
[Dkt. 47, at 112-13 (emphasis added)]. The orthopedics specialist recommended a
Id. at 113.
C. Carter’s Experience Post-Treatment
Carter testified that in addition to the grievances filed at Cheshire, he also
filed two grievances at Corrigan-Radgowski to address his persistent pain and
receive different and more effective pain medication. [Dkt. 45-2, ¶ 25; Dkt. 51-2, ¶
25]. The record contains an CN 9601 Form submitted to “Grievance Coordinator”
on September 4, 2014, wherein he stated, “I have filed Grievances in Corrigan and
in Cheshire for any property being missing by (CO. Viera – Cheshire) and on
medical in Cheshire because of my thumb being broken but because they
(Cheshire) didn’t do anything to fix or help me with the pain for 11 days. Can you
let me know if they are being processed?” [Dkt. 51-13 (Pl.’s Ex. K, Inmate Request
Form 9/4/14), at 2]. Staff King responded, “You must write to that facility. If you
got a receipt for Corrigan I could check on that.” Id. On September 10, 2014, Carter
filed another CN 9601 Form with Cheshire stating, “(I have sent a letter) and now I
am waiting on a request to see if my (Grievance was processed?) I don’t remember
the date but sometime between (March 6th to the 19th.) [sic] Also, I’m not sure what
to do from here because I’m not in the same facility.” [Dkt. 51-15 (Pl.’s Ex. M, Inmate
Request Form 9/10/14), at 2].
Carter then filed a grievance on September 20, 2014, by filling out a CN 9602
Form stating he was “unable to get surgery done due to the delay of medical
treatment by Cheshire C.I.” and that he was “trying to get the pain to go away and
medical isn’t doing enough.” [Dkt. 54-14 (Pl.’s Ex. L, Grievance), at 3].5 The
grievance indicates it was received on October 5, 2014, and on October 20, 2014,
APRN L’Heureux wrote the following: “Discussed trial of Naprosyn x 30 days to ↓
thumb discomfort.” Id. The nurse did not check either of the two boxes indicating
he had exhausted DOC’s Administrative Remedies or that the matter could be
Defendants submitted three grievance logs: (1) Cheshire’s Directive 9.6
grievance log between February 18, 2014, and March 19, 2014 (the time period
Carter was housed at Cheshire), [Dkt. 45-8 (Defs.’ Ex. F, Cheshire 9.6 Grievance
Log)]; (2) Cheshire’s Directive 8.9 grievance log between March 1, 2014 and April
30, 2014,6 [Dkt. 45-9 (Defs.’ Ex. G, Cheshire 8.9 Grievance Log)]; and (3) Corrigan’s
9.6 grievance log between March 19, 2014, and June 12, 2015 (the time period Carter
Kimberly Daly, the Administrative Remedies Coordinator at Corrigan-Radgowski,
submitted an affidavit stating that she is “the keeper of records of all inmate
grievances and grievance appeals, and maintain[s] the grievance log at Corrigan
Correctional Institution as set forth in DOC Administrative Directive 9.6 § 6(P)
(August 15, 2013).” [Dkt. 45-10 (Defs.’ Ex. H, Daly Aff.), at ¶¶ 2-3]. Daly attested that
“on July 5, 2016, [she] reviewed records of all grievance filings and grievance
appeals at Corrigan Correctional Institute from March 19, 2014 to June 12, 2015.
During this period, Inmate Shaquon Carter, No. 335275, did not file any
grievances.” Id. at ¶ 4. The parties dispute whether Carter’s filing of the grievance
on September 20, 2014, is evidence that Daly’s affidavit is misleading or incorrect.
The Court notes that CN 9602 Form may be used to file a custodial grievance under
Administrative Directive 9.6 or a health services grievance under Administrative
Directive 8.9. See Dkt. 51-9 (Pl.’s Ex. G, Inmate Requests for Non-Emergency Health
Services), at 2; see generally Dkt. 45-13]. As Carter’s grievance does not specify
the type of grievance and there is no evidence showing into which box he
submitted the grievance, the Court need not make a determination as to whether
the affidavit is misleading or incorrect. In addition, it is not clear that Daly should
not have reviewed additional records to determine whether grievances were filed
after June 12, 2015, as King’s statement indicates that an inmate may file a
grievance in which he is no longer housed.
The reason for selecting this time period is unknown to the Court.
was housed at Corrigan), [Dkt. 45-10]. None of these logs contain any grievances
filed by Carter during the respective time periods. Notably, these grievance logs
would not have documented Carter’s informal resolution requests filed through the
CN 9601 Forms. [See Dkt. 45-13, § 6(P) (stating a grievance log shall be maintained
for each “level,” but Levels 1-3 do not include informal written requests filed with
CN 9601 Forms); Dkt. 45-14, § 13 (requiring an electronic log to be maintained for
Health Services Review requests and appeals, which do not include written
requests utilizing CN 9601 Forms)].
On June 12, 2015, the DOC transferred Carter again, this time to Enfield
Correctional Institution (“Enfield”). [Dkt. 45-3, at 63]. Carter remained at Enfield
until recently when he was transferred to Carl Robinson Correctional Institution.
[Dkt. 51-2, ¶ 3].
Defendants claim that Directive 9.6 applies to Carter’s claims against the
correctional officers and Directive 8.9 applies to Carter’s claims against the
A. Directive 9.6
Directive 9.6 “provide[s] a means for an inmate to seek formal review of an
issue relating to any aspect of an inmate’s confinement that is subject to the
Commissioner’s authority,” and it “enables the Department to identify individual
and systemic problems, to resolve legitimate complaints in a timely manner and to
facilitate the accomplishment of its mission.” [Dkt. 45-13, § 1]. First, Directive 9.6
requires an inmate to go through an Informal Resolution process by attempting to
supervisor/manager. See id., § 6(A). Should this effort fail to resolve the issue, the
inmate must file a written request by submitting a CN 9601 Form and the response
will be administered within 15 days. See id. An inmate who is “not satisfied with
the informal resolution offered” or who does not receive a timely response may file
a grievance by submitting a CN 9602 Form and either (1) attaching the CN 9601
Form and response or (2) explaining why the CN 9601 Form is not attached. Id., §
6(C). The Directive does not require the CN 9602 Form to be accompanied by a
receipt for the CN 9601 Form.7 See id. The Unit Administrator shall then make the
Level 1 Review decision within 30 days, and after this date the inmate may appeal
for Level 2 Review any denial, rejection, or failure to timely respond. Id., § 6(C), (I),
Within 30 days the District Administrator shall render a decision, which
exhausts the administrative process for all grievances except those challenging (1)
Department level policy, (2) the integrity of the grievance procedure, or (3)
timeliness of the decision. Id., § 6(L).
Any disposition regarding these three
exceptions may be appealed to the Commissioner or a designee for Level 3 Review.
Section 5(C) provides that all grievances and appeals must be placed in an
Administrative Remedies box to be collected by the Unit Administrator, and there
Directive 9.6 requires the Administrative Remedies Coordinator to “complete and
forward CN 9603 Administrative Remedy Receipt to the inmate and place a copy of
the receipt in the appropriate file.” Id., § 5(D)(5). The record does not contain a
copy of the CN 9603 Receipt, and as such the Court cannot determine to which
stage of the remedy process the Receipt applies.
are to be “an adequate number of collection boxes . . . accessible within the
facility.” Furthermore, the Administrative Remedies Coordinator shall “ensure that
current administrative remedy forms are available in all housing units.” Id., §
In addition to the grievance procedure, Directive 9.6 also provides that
“[e]ach inmate in the Department’s custody shall have access” to the Directive and
that “[a]ny inmate who needs assistance in using the Inmate Administrative
Remedies Process shall receive assistance upon request.” Id., § 5(B)(1).
B. Directive 8.9
Administrative Directive 8.9, Administrative Remedy for Health Services
(“Directive 8.9”) “establish[es] a Health Services Review procedure as the
administrative remedy for all health services to enable an inmate to seek formal
review of any health care provision, practice, diagnosis or treatment,” which
thereby “enables the Department to identify individual and systemic problems, to
resolve health care issues in a timely manner and to facilitate the accomplishment
of its mission.” [Dkt. 45-14 (Defs.’ Ex. L, Directive 8.9), § 1]. First, “[t]he inmate
must attempt to resolve the issue face to face with the appropriate staff member or
with a supervisor via written request utilizing CN 9601 Inmate Request Form.” Id.,
§ 10. If after 15 business days of receiving the written request a response is not
made, an inmate may then file a CN 9602 Inmate Administrative Remedy Form for
further review. See id. Depending on whether the inmate seeks review of (1) a
diagnosis or treatment, or (2) an administrative issue, different procedure follows.
Under § 11 of Directive 8.9, an inmate may seek review of a diagnosis or
treatment as outlined in § 9(A) and file a CN 9602 Form to “apply for a Health
Services Review if informal resolution via inmate request was unsuccessful.” Id.
A possible result from filing a CN 9602 Form is that the case may be referred to the
Utilization Review Committee that engages in the “process by which requests for
specialty care, treatment, services, and/or diagnostic testing is reviewed for
approval based on standardized guidelines.” Id., § 3(K). Directive 8.9 does not
contain a statute of limitations for filing a CN 9602 Form under this provision.
In addition to § 11 of Directive 8.9, § 12 provides a process for inmates
seeking “review of a practice, procedure, administrative provision or policy, or an
allegation of improper conduct by a health services provider” under § 9(B). Id., §
12. Like the policy under § 11, an inmate may submit a CN 9602 Form. Id. “The
inmate should provide a concise statement of what he/she believes to be wrong
and how he/she has been affected.” Id. The HSR Coordinator must evaluate,
investigate, and decide the request for review within 30 days. Id., § 12(A). If
dissatisfied, the inmate may appeal within 10 business days by completing a CN
8901 Appeal of Health Services Review Form and placing it into the Health Services
box.8 Id., § 12(B). A contracted health services provider will then decide the appeal
within 15 days. Id., § 12(C). If the appeal pertains to compliance, the provider’s
decision exhausts the health services review process. Id., § 12(C). If the appeal
pertains to a health services policy of the Department, the inmate may then appeal
Unlike Directive 9.6, Directive 8.9 does not provide an opportunity to appeal as a
matter of course should the Coordinator fail to respond within the 30 days.
to the DOC Director of Health Services within 10 business days of receipt of the
provider’s decision, who must respond within 30 days of receipt of the appeal. Id.,
The decision of DOC Director of Health Services renders the inmate’s
review process exhausted. Id.
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no genuine factual disputes exist. See Vivenzio v. City of Syracuse,
611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been
met, the court is required to resolve all ambiguities and credit all factual
inferences that could be drawn in favor of the party against whom summary
judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). “If there is any evidence in the record that could reasonably support a
jury’s verdict for the nonmoving party, summary judgment must be denied.” Am.
Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–
16 (2d Cir. 2006) (internal quotation marks and citation omitted).
A plaintiff opposing summary judgment “cannot defeat the motion by
relying on the allegations in his pleading . . . or on conclusory statements, or on
mere assertions that affidavits supporting the motion are not credible.” Gottlieb
v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citation omitted). “At
the summary judgment stage of the proceeding, [a plaintiff is] required to present
admissible evidence in support of [his] allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch–Rubin v. Sandals Corp.,
2004 WL 2472280, at *1 (citing id. at 518); see Martinez v. Connecticut, State
Library, 817 F. Supp. 2d 28, 37 (D. Conn. 2011). In other words, a party opposing
summary judgment must produce more than “a ‘scintilla of evidence,’” i.e., the
evidence must be sufficient for “‘a jury to properly proceed to find a verdict for
the party producing it, upon whom the onus of proof is imposed.’” Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 726–27 (2d Cir. 2010) (quoting
Anderson, 477 U.S. at 251–52). In asserting a genuine dispute of material fact a
party may cite “particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations, admissions, interrogatory answers, or other materials.” Fed. R. Civ.
A party may also support their assertion by “showing that the
materials cited do not establish the absence . . . of a genuine dispute.” Id. Cited
documents must consist of either “(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.”
Local R. Civ. P. 56(a)3; see also Fed. R. Civ. P. 56(c)(4). Upon the production of
such evidence, “[a]ssessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the court on summary
judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
Defendants argues that Carter failed to exhaust his administrative
remedies before filing suit.
Defendants also argue that summary judgment be
granted in favor of Jane Does 1-7, Dr. Revine, and Lieutenant Mauvinchi as they
have not yet been properly identified or served. The parties do not address the
merits of the deliberate indifference claim.9
A. Exhaustion of Administrative Remedies
Section 1997e of Title 42 of the United States Code governs actions brought
by prison inmates. This section provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
This subsection applies to all claims regarding prison life. See Porter v. Nussle,
534 U.S. 516, 532 (2002).
Section 1997e requires exhaustion of any available
administrative remedies, regardless of whether they provide the relief the inmate
seeks. See Booth v. Churner, 532 U.S. 731, 741 (2001). A claim is not exhausted
until the inmate complies with all administrative deadlines and procedures. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006). Informal efforts to put prison officials on
The Court will not address the merits of the deliberate indifference claim as Carter
did not have notice that he had to come forward with all his evidence. See Celotex
Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely
acknowledged to possess the power to enter summary judgments sua sponte, so
long as the losing party was on notice that she had to come forward with all of her
evidence.”); Pugh v. Goord, 345 F.3d 121, 145-25 (2d Cir. 2003) (opining that
summary judgment is never appropriate “where no party has moved for summary
judgment and no notice was given by the court”).
notice of inmate concerns do not satisfy the exhaustion requirement. See Macias
v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007). If the deadline to file a grievance has passed,
an unexhausted claim is barred from federal court. See Woodford, 548 U.S. at 95.
The exhaustion requirement, however, may be excused when the remedy is
not available in practice even if it is “officially on the books.” See Ross v. Blake,
136 S. Ct. 1850, 1858-59 (2016); Harvin v. Chapdelaine, No. 3:16-cv-1616 (VAB), 2016
WL 7197363, at *1 (D. Conn. Dec. 9, 2016) (same). This means that “an inmate is
required to exhaust those, but only those, grievance procedures that are ‘capable
of use’ to obtain ‘some relief for the action complained of.’” Ross, 136 S. Ct. at
1859 (quoting Booth, 532 U.S. at 738). The United States Supreme Court has
established three circumstances under which an inmate need not exhaust the
administrative procedure as it is deemed unavailable: (1) “when (despite what
regulations or guidance materials may promise) it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved
inmates;” (2) when a procedure is “so opaque that it becomes, practically
speaking, incapable of use;” or (3) “when prison administrators thwart inmates
misrepresentation, or intimidation.” Id. at 1859-60; see Williams v. Ford, No. 3:14cv-1181 (VAB), 2017 WL 1025661, at *4 (D. Conn. Mar. 16, 2017).
“Whether an administrative remedy was available to a prisoner in a particular
prison or prison system is ultimately a question of law, even when it contains
factual elements.” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir.
2015); Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (determining
that the applicability of the Ross v. Blake “unavailability” exceptions lies “entirely
within the context of whether administrative remedies were actually available to the
The failure to exhaust administrative remedies under 42
U.S.C. § 1997e is an affirmative defense. Jones v. Bock, 549 U.S. 199, 215 (2007)
(ruling an inmate need not specially plead or demonstrate exhaustion in the
complaint); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) (same). As such,
“defendants bear the initial burden of establishing, by pointing to legally sufficient
source[s] such as statutes, regulations, or grievance procedures, that a grievance
process exists and applies to the underlying dispute.” Hubbs, 788 F.3d at 59; see
Johnston v. Maha, 460 F. App’x 11, 15 (2d Cir. 2012) (“The defendants have the
burden of showing that there is no genuine issue of material fact as to exhaustion
that would preclude summary judgment.”); Michalski v. Corr. Managed Health Care,
No. 3:15-cv-571 (VAB), slip op. at 2 (D. Conn. Oct. 21, 2016) (“Thus, defendants have
the burden of proving that [plaintiff] has not exhausted claims prior to filing this
action.”). Defendants have not waived this affirmative defense as they list the
failure to exhaust as the Second Affirmative Defense in their Answer to the Second
Amended Complaint. [Dkt. 37 (Ans. to Second Am. Compl.), at 6].
Carter has filed claims against correctional staff and medical staff.
Defendants posit that the former are subject to exhaustion requirements under
Directive 9.6, and the latter are subject to exhaustion requirements under Directive
8.9. [Dkt. 45-1, at 9]. Carter does not address Directive 8.9, but rather that Directive
9.6 generally addresses the grievance process. [Dkt. 51-1, at 14-16]. Below the
Court will separately address each Directive pertinent to the type of staff.
Defendants argue that Carter failed to exhaust his Directive 9.6
administrative remedies to grieve the correctional officer Defendants’ alleged
failure to assist him in obtaining treatment for his hand. [See Dkt. 45-1, at 9 (citing
Directive 9.6 § 4(A))]. In support of their argument, Defendants submitted Directive
9.6 grievance logs for the following: (1) Cheshire’s Directive 9.6 grievance log
between February 18, 2014, and March 19, 2014 (the time period when he was
housed at Cheshire); and (2) Corrigan’s Directive 9.6 grievance log between March
19, 2014 and June 12, 2015 (the time period when he was housed at Corrigan). [See
generally Dkt. 45-8; Dkt. 45-9; Dkt. 45-10]. The grievance logs indicate that Carter
did not file any grievances with the respective institutions during these time
Moreover, the Administrative Remedies Coordinator is required to
“complete and forward CN 9603 Administrative Remedy Receipts to the inmate and
place a copy of the receipt in the appropriate file,” [Dkt. 45-13, § 5(D)(4)], but there
are no such receipts in evidence.
Carter does not dispute in his summary judgment briefing that Directive 9.6
is the appropriate procedure for his claims against the correctional officers, and
The record does not indicate whether and how an inmate housed at Corrigan
could file a grievance involving conduct that occurred at Cheshire. This missing
procedural evidence is somewhat significant as Carter was transferred from
Cheshire to Corrigan on March 19, 2014, and this date precedes the 15-day deadline
when he would have received a response to his CN 9601 Form (assuming he filed
a CN 9601 as early as March 6, 2014). However, Carter does not allege in the Second
Amended Complaint he was unable to or prevented from filing subsequent
grievances at Corrigan about events occurring at Cheshire. He also did not testify
that he filed a grievance directed to Cheshire while housed at Corrigan. The Court
thus finds the submitted grievance logs sufficient.
he does not dispute that he failed to exhaust remedies as outlined under Directive
9.6. Indeed, Carter testified that he submitted a grievance against correctional staff
for failing to get medical assistance when he notified them he was in pain due to
his thumb injury, but he never received a response and he never appealed the
nonresponse. [Dkt. 45-4, at 19:25-20:11]. Carter also admits that he never filed a
grievance against correctional staff for ignoring his request to contact the medical
department on his behalf. Id. at 21:4-8. Rather, Carter argues that he could not
have exhausted his claims because he never received a response to his
grievances, he was transferred to a different facility during the 30-day time period,
and there is evidence of his grievances. [See Dkt. 51-1, at 14-15].
The Court cannot render summary judgment for the Defendants on the basis
of their contention that Carter did not file grievances when Carter claims that he
These conflicting factual scenarios create the classic genuine issue of
material fact. This is especially true where, as here, the Defendants had reason to
know that the delay in treatment caused Carter harm, creating a motivation to
conceal the grievances. Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 255; Matsushita
Elec. Indus. Co., Ltd., 475 U.S. at 587; Home Assurance Co., 446 F.3d at 315-16.
a. Remedy So Opaque It Is Incapable Of Use
Assuming Carter filed the grievance, he was required to appeal the
nonresponse. [See Dkt. 45-13, § 6(I) (“If a response to a Level 1 grievance is not
received within 30 business days, an inmate may appeal to Level 2.”)]. But an
inmate need not exhaust an administrative remedy that is “so opaque that it
becomes, practically speaking, incapable of use.” Ross, 136 S. Ct. at 1859. Carter
alleges that his transfer on March 19, 2014, prevented him from exhausting his
remedies because he never received a response. [Dkt. 51-1, at 14-15]. The Second
Circuit in Williams v. Corr. Officer Priatno, 829 F.3d at 126-27, addressed this very
issue with respect to the transfer policy at the New York Department of Corrections
and Community Supervision (“DOCCS”). The DOCCS provided that where “the
[transferred] grievant wishes to appeal, he or she must mail the signed appeal form
back to the IGP supervisor at the facility where the grievance was originally filed
within seven calendar days after receipt.” Id. at 126 (quoting N.Y. Comp. Codes R.
& Regs. (“NYCRR”) tit. 7, § 701.6(h)(2)). The plaintiff in that case never received a
response to his grievance filed before his transfer, and the Second Circuit
determined that “[t]he regulations plainly do not provide guidance on how a
transferred inmate can appeal his grievance with the original facility without having
received a response.” Id. In ruling that the procedures available to the plaintiff
were “practically speaking, incapable of use,” the Second Circuit recommended
that the DOCCS “revise its grievance procedures to instruct inmates . . . how to
appeal a grievance, to which the inmate never received a response, after being
transferred.” Id. at 127. Here, the DOC does not set forth any policy whatsoever
instructing inmates on how to navigate the grievance process upon a transfer. This
is even more “incapable of use” than the DOCCS’s opaque process.
Of note, Carter submitted a CN 9601 Form at Corrigan wherein he stated, “I
have filed grievances in Corrigan and in Cheshire . . . because of my thumb being
broken but because they (Cheshire) didn’t do anything to fix or help me with the
pain for 11 days.” [Dkt. 51-13, at 1]. Staff King responded, “You must write to that
facility.” Id. While the statement suggests the appeal process could be conducted
by mail, such a process is not set forth in any directive in the record and therefore
Williams is instructive. Directive 9.6 only allows an appeal to be filed by placing it
in the “Administrative Remedies” box. [Dkt. 45-13, § 5(C)]. King’s instruction
raises the potential that Carter was “thwart[ed] from taking advantage of a
grievance process through machination [or] misrepresentation,” Ross, 136 S. Ct.
at 1860, as King’s direction contradicts the procedure found in Directive 9.6.
Furthermore, given that Carter was housed in the RHU and claims to have
had no access to the appropriate grievance box, [Dkt. 51-6, ¶ 6], the absence of his
grievance in the grievance log raises the potential that a correctional officer never
filed the claim. The Second Circuit also addressed this situation in Williams. While
in segregation on January 15, 2013, the plaintiff drafted a grievance about an
assault he allegedly suffered by several correctional officers, and he asked a
correction officer to give it to the grievance office in accordance with the DOCCS
grievance procedures for inmates housed in the SHU. See id. at 120-121, 124
(“Prison regulations provide that inmates in the SHU may file grievances by giving
the complaint to a correction officer to forward to the grievance clerk.”) (citing
NYCRR, tit. 7, § 701.7). A week later, the plaintiff notified superintendent Ada Perez
visiting the SHU that he had not received a response, upon which she stated she
would look into the situation. Id. at 121. About one week after that, the plaintiff
was transferred to a different facility prior to receiving a response.
defendants cited the DOCCS regulation enabling an inmate to appeal a grievance
when he does not receive a timely response, arguing that this process was
available “even if Williams’s grievance had not been filed and despite the fact that
he had been transferred to a new facility prior to receiving a response.” Id. at 124.
The Second Circuit determined that “the regulations give no guidance whatsoever
to an inmate whose grievance was never filed,” id. at 124 (emphasis added), and
noted that the plaintiff would not have had the right to appeal his grievance until
after the time for the superintendent to respond had passed, which was after the
filing deadline for his initial grievance. See id. at 125. As such, the Second Circuit
held that “the process to appeal an unfiled and unanswered grievance is
prohibitively opaque, such that no inmate could actually make use of it.” Id. at 126
(applying Ross, 136 S. Ct. at 1859).
Were this circumstance to be the case, Directive 9.6 suffers from the same
shortcomings as those of the DOCCS: there is no procedure for grievances that
are not filed as a result of a correctional officer failing to assist the inmate in the
grievance process despite being so required. [See Dkt. 45-13, § 5(B)(1)]. Directive
9.6 provides that “[a]ny inmate who needs assistance in using the Inmate
Administrative Remedies Process shall receive assistance upon request.” Id. §
5B(1). Inmates in the RHU are housed in a locked cell for 23 hours each day and
have limited access to common areas. Neither the Directive nor any other evidence
presented by the Defendants establish that inmates housed in the RHU have
access to grievance forms. The Administrative Directives here make no mention of
the manner in which an inmate in the RHU or an inmate who has been transferred
is to file a grievance, and thus provide no guidance to an inmate in either of these
Unlike the Defendants, Carter has provided sufficient evidence for the Court
to conclude he tried to submit the grievance by and through the assistance of
correctional officers while he was housed in the RHU. Carter testified that he gave
a medical request to Stewart. [See Dkt. 45-4, at 26:22-27:1]. Carter’s affidavit
mentions submitting to correctional officers Mulligan, Deko, and “other available
employees” six medical requests and a “written grievance in reference to the lack
of response to my requests for medical care.” [Dkt. 51-6, ¶¶ 6, 10]. Such evidence
is sufficient for the Court to conclude that it was practically impossible to pursue
his grievance. See Williams, 829 F.3d at 123; see also Hubbs, 788 F.3d at 54
(establishing that the availability of an administrative remedy is a question of law
for the courts, even if there are factual elements).
As Carter testified, he notified staff of his injury every single day, [Dkt. 45-4,
at 16:11-16], but the DOC failed to facilitate his treatment for 11 days. When he
finally did begin to receive treatment, the process took several weeks and he was
ultimately informed that the delay caused him to sustain an avoidable permanent
disability. [Dkt. 47, at 112 (wherein the orthopedics specialist “explain[ed] to him
that he could develop arthritis of the thumb carpal metacarpal joint whether we
operate on him or whether we do not operate on him”)]. The delay in treatment and
the potentially irreversible nature of Carter’s resulting disability combined to
render the grievance process unavailing. The test of whether an administrative
remedy is available to an inmate is an objective one: that is, would “a similarly
situated individual of ordinary firmness have deemed them available.” Hemphill v.
New York, 380 F.3d 680, 688 (2d Cir. 2004), abrogated on other grounds. After
Carter’s treatment began, it would have been reasonable for him to have
abandoned any grievance process and he would have reasonably believed his
needs were being met.
After the onset of treatment, Carter no longer had a basis to pursue a
grievance. His request was no longer being honored, he did not know his thumb
had been broken and he did not know that the delay in treatment had caused his
hand to heal improperly causing him a permanent injury. As a consequence the
grievance process was of no benefit to Carter or to the DOC because they were
aware of the delay and its result. See Ross, 136 S. Ct. at 1859 (“When rules are so
confusing that . . . no reasonable prisoner can use them, then they’re no longer
available.”) (internal quotation marks omitted).
Defendants submitted in their Reply brief an affidavit by Brian Viger, Deputy
Warden for Operations at Cheshire, who stated:
[A]n Inmate Request Form or a Grievance received claiming a
correction officer failed to respond to a request for medical assistance
would result in an immediate investigation of the incident, to include
the welfare of the inmate and the conduct of the correction officer. If
the investigator determined the inmate was in need of medical
assistance, such assistance would be rendered by the prison medical
unit. If the investigator determined the correction officer failed to
furnish medical assistance, the staff member would be subject to
[Dkt. 57-2 (Defs.’ Ex. O, Viger Aff.), ¶ 3 (emphasis added)].
presupposes that the claim he had access to the forms, access to filing grievances,
and was not thwarted from filing such grievances due to his housing in the RHU or
Unlike the procedures for New York; Williams, 829 F.3d at 126
(quoting N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit. 7, § 701.6(h)(2)); Defendants
point to no evidence that Connecticut’s inmate grievance procedures directly
address the manner by which an inmate housed in the RHU can file a grievance
and the Court has not found any. Defendants have offered no evidence to support
this assertion that Carter's claims that he was denied treatment would have been
investigated. Indeed, it was a doctor engaged by the DOC who concluded that
Carter’s broken hand was not treated in a timely manner. Defendants offer no
evidence of an investigation into the reason why. Therefore, the Court finds the
hypothetical response to such a grievance to be unavailing here.
b. Remedy Thwarted for Machination, Misrepresentation, or
Other evidence on the record raises the issue as to whether Carter was
“thwart[ed] . . . from taking advantage of the grievance process through
machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. When
Carter submitted the CN 9601 Form to “Grievance Coordinator” on September 4,
2014, to ask about the processing of his prior grievances from Cheshire, Staff King
responded, “You must write to that facility. If you got a receipt for Corrigan I could
check on that.” [Dkt. 51-13, at 2]. An administrative remedy is unavailable “if prison
officials erroneously inform an inmate that the remedy does not exist or
inaccurately describe the steps he needs to take to pursue it.” Angulo v. Nassau
Cty., 89 F. Supp. 3d 541, 552 (E.D.N.Y. 2015) (quoting Pavey v. Conley, 663 F.3d 899,
906 (7th Cir. 2011)). See Ross, 136 S. Ct. at 1860 (“[I]nterference with an inmate’s
pursuit of relief renders the administrative process unavailable.”); Brownell v.
Krom, 446 F.3d 305, 312 (2d Cir. 2006) (finding that plaintiff’s decision to abandon
his reimbursement claim and pursue the grievance, which foreclosed his ability to
appeal, justified his failure to exhaust remedies as it was “directly traced to a prison
official’s advice to [plaintiff’] to follow that course”); Davis v. Fernandez, 798 F.3d
290, 296 (5th Cir. 2015) (reversing and remanding grant of summary judgment
where jail staff told plaintiff that he could not appeal and plaintiff relied on this
representation); Small v. Camden Cty., 728 F.3d 265, 271 (3d Cir. 2013) (“Remedies
that are not reasonably communicated to inmates may be considered unavailable
for exhaustion purposes.”); Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007)
(finding it impermissible for “jails and prisons to play hide-and-seek with
administrative remedies”); Robinson v. Ballard, No. 9:13-CV-01213 (TJM/TWD), slip
op. at 11 (N.D.N.Y. Feb. 3, 2017) (finding a triable issue of fact where inmate
conscientiously pursued a response to his grievance but received “total silence”
to his multiple inquiries about the status of his grievance).
Directive 9.6 does not mention mailing a grievance and it does not state that
an inmate must have a receipt to follow-up on a pending grievance. [See Dkt. 4513, § 5(D)(5) (identifying CN 9603 as an Administrative Remedy Receipt)]. It only
requires the Administrative Remedies Coordinator to “ensure that current
administrative remedy forms are available in all housing units.” Id., § 5(D)(2). The
Directive merely states a grievance is to be placed in a box. Id., § 5(B)(1). It is
unclear from the record, how an inmate would obtain a receipt after placing a
grievance in a box. See id., § 5(D)(5) (failing to specify how an inmate would
successfully receive the forwarded CN 9603 Receipt and failing to indicate whether
this Receipt is applicable to the instant situation).
Further, Directive 9.6 suggests that there is no receipt issued at this stage,
as it states that when an inmate does not get a response to a CN 9601 Form he may
file a CN 9602 Form stating that he did not receive a response. See id., § 6(C). The
inmate is not required to submit a receipt for the CN 9601 Form. Id. Nor do the
administrative directives state a grievance must be filed in the facility where the
incident occurred. The latter requirement would render the grievance process
unavailing to Carter after he was transferred, because he could not deposit the
grievance in the box located in a housing unit in which he was not housed.
Contrary to King’s instruction, Directive 9.6 suggests that DOC staff should
transmit a grievance to the appropriate official. See id., § 6(A) (while the CN 9602
Form procedure is silent on this issue, with respect to all CN 9601 Forms “[t]he
Unit Administrator shall ensure that inmate request forms are collected and
delivered in a timely manner.”). Despite this Directive Staff King failed to transmit
Carter’s grievance and instead told Carter to file his request with the appropriate
facility. King also stated that he could only help if Carter produced a receipt. To
the extent King misinformed Carter, and it appears he or she might have, the
grievance process was unavailable to Carter and he is excused from exhausting it.
The procedural ambiguity Carter faced was exacerbated by the existence of
a parallel process for medical staff. In addition to the grievance process, there was
also a medical review process, both of which used the same forms.
Defendants posit that Directive 8.9 provides the applicable administrative
remedy for Carter’s allegations against medical staff as its purpose is “for all health
services to enable an inmate to seek formal review of any health care provision,
practice, diagnosis or treatment” and to identify “individual and systemic
problems.” [Dkt. 45-14, § 1; see Dkt. 45-1, at 9]. Carter addresses only Directive
9.6 as to his grievances against medical staff. [Dkt. 51-1, at 14]. The Court will
address both Directives as it is Defendants’ burden to prove Carter failed to
exhaust his administrative remedies. Hubbs, 788 at 59.
a. Directive 9.6
The Court agrees with the Defendants that only Directive 8.9 applies to
Carter’s claims against medical staff. Directive 8.9 provides “formal review of any
health care provision, practice, diagnosis or treatment,” [Dkt. 45-14, § 1], whereas
Directive 9.6 more generally applies to “any aspect of an inmate’s confinement that
is subject to the Commissioner’s authority,” [Dkt. 45-13, § 1]. Additionally, the mere
fact that Directive 9.6 sets forth the Inmate Grievance Procedure is instructive as
health care reviews would not fall in this camp. Therefore, the Court finds only
Directive 8.9 applies to Carter’s medical claims.
b. Directive 8.9
Carter raises allegations of medical staff’s failure to treat Carter while he was
housed in the RHU. Section 11 of Directive 8.9 applies to the failure to treat an
inmate in the first instance, because the Review of a Diagnosis or Treatment
includes “a decision to provide no treatment. . . .” [Dkt. 45-14, § 9(A)]. When Carter
was first placed in the RHU on March 6, 2014, Estrom performed a cursory
evaluation wherein she did not palpate his hand or compare the left hand to the
right hand. [Dkt. 51-5, at 12:05-22]. Eight days later on March 14, 2014, a medical
staff documented that
[Dkt. 47, at 145].
To the extent that these
evaluations led nowhere, Carter certainly had the ability to seek review of the nondiagnosis or non-treatment under Directive 8.9. In fact, the record suggests that
he was eventually able to obtain a review through this process. Carter’s affidavit
indicates that he submitted six medical requests from March 6 to March 17, and he
was able to see a physician on March 18, 2014. [Dkt. 51-6, ¶¶ 6, 11].
[Dkt. 54, at 23].
Directive 8.9 provides for a URC review only in the context of filing a Review of a
Diagnosis or Treatment. Therefore, Carter must have sought and obtained review
of his non-diagnosis or non-treatment as he eventually received adequate medical
attention from an orthopedics specialist. Id. at 24.
As it appears Carter successfully navigated through this process and
obtained favorable results, he has exhausted his administrative remedies on this
issue but can no longer demonstrate that he has standing and falls subject to
mootness. Standing requires “(i) an injury in fact (ii) that is fairly traceable to the
defendant and (iii) that is likely to be redressed by a favorable decision.” Amador
v. Andrews, 655 F.3d 89, 99 (2d Cir. 2011) (addressing standing in a class action
PLRA case); Manon v. Albany Cty., No. 11-CV-1190 (GTS/CFH), 2012 WL 6202987,
at *7-8 (N.D.N.Y. Oct. 9, 2012) (dismissing inmate’s PLRA claim on lack of standing
and mootness because the plaintiff “sought no specific relief related to an
identifiable harm”); Butler v. Suffolk Cty., 289 F.R.D. 80, 90 (S.D.N.Y. 2013)
(addressing Article III standing in a PLRA case). “[T]he mootness doctrine ensures
that the occasion for judicial resolution established by standing persists
throughout the life of a lawsuit.” Amador, 655 F.3d at 99-100.
On the limited issue
of Carter seeking review of the medical staff’s failure to diagnose or treat him, “the
claim has been rectified” by his path through the process and the resulting
orthopedics specialist consultation; Carter no longer has an injury to grieve. See
id. The Court thus GRANTS summary judgment in favor of Defendants on this
What Carter does not address is the fact that it took a total of 36 days from
the date Estrom performed her initial evaluation to the date he finally saw a
specialist. Notably, on March 18, 2014, the same day Carter received his X-rays, a
. [Dkt. 47, at 111].
. Id. It was not until
March 26, 2014 (8 days later), that the URC evaluated the case and approved of the
request. Id. On April 3, 2014, (8 days later), Carter received the approval and signed
the form, which was the last stage before he could see the specialist. Id. It took
another 8 days before the specialist finally evaluated him on April 11, 2014.
The orthopedics specialist determined on April 11, 2014, that Carter had
already healed too much to operate on him without risking a worse condition. [See
Dkt. 47, at 112 (finding that “five weeks status post his injury, which could have
readily been treated with a closed pinning if we could have gone into it acutely,
would be quite a challenging operation due to the small size of the bony fragments,
the amount of healing that has already taken place, and the chance that we could
comminute even further the small bony fragments or make him worse”)]. He
opined that Carter could develop arthritis whether or not he elected the operation
available to him as of April 11, 2014. Id. The record does not establish how soon
after his injury Carter would have had to be diagnosed in order to receive proper
Should Carter want to grieve the delay in treatment as the reason for his
permanent injury and lasting pain, Directive 8.9 § 12 is the appropriate provision to
remedy Carter’s specific situation. It does not appear that Carter has sought an
administrative remedy for the length of time it took to complete the
process. Thus, Carter has not exhausted his administrative remedy on this
Once treatment initiated, Carter reasonably withheld from filing any
grievance about the long duration of the process, particularly since he did not learn
how he would be impacted until he finally saw the orthopedics specialist. It is
unclear at what point Carter had healed too much to be properly treated, but what
is clear is that time was of the essence.
Carter is not precluded from initiating the process now because Directive 8.9
contains no statute of limitations for the initial filing of a Review of an
Administrative Issue. [See Dkt. 45-14, §§ 10, 12 (requiring only that the DOC staff
respond to inmates within a specific time period)]. This is in stark contrast to the
30-day statute of limitations imposed on the grievance process under Directive 9.6.
[Dkt. 45-13, § 6(C) (“The grievance must be filed within 30 calendar days of the
occurrence or discovery of the cause of the grievance.”)]. Therefore, to the extent
that Carter seeks redress for this issue he may file a Review of an Administrative
Issue pursuant to Directive 8.9, § 12.
The Court points out that inmates seeking non-emergency medical attention
may also be required to sign up for sick call using CMHC Form HR 901, Cell Block
- Sick Call Sign Up. [See Dkt. 51-9, at 2]. Generally, any inmate who signs up for
sick call “more than two consecutive times without resolution of the same
complaint and who has not seen a physician/APRN/PA” shall receive an
appointment. The record is unclear as to whether Carter’s description—that he
submitted to correctional officers “medical requests”—actually refers to sick call
sign ups. Carter should have been given access to this resource. To the extent he
attempted to file sick call requests but was prevented from doing so or if he was
not treated after filing sick call requests on two consecutive days as he claims,
Carter may also raise this issue by filing a Review of an Administrative Issue
pursuant to Directive 8.9, § 12.
The Court therefore GRANTS summary judgment as to the presently named
medical staff on the grounds that (1) Carter does not have standing for Estrom and
other medical staff failing to diagnose him as he subsequently obtained treatment;
and (2) Carter has not exhausted his administrative remedies under Directive 8.9,
§ 12 for his claims that medical staff failed to respond to medical requests as
required or that their response was unduly delayed. Regarding the latter claim,
summary judgment is GRANTED without prejudice.
B. Dismissal of Claims Against Jane Does 1-7, Dr. Revine, and Lt.
Defendants seek summary judgment as to Jane Does 1-7, Dr. Revine, and Lt.
Mauvinchi who currently are either unidentified or improperly identified. As the
Court has granted summary judgment in favor of Defendants as to the medical
staff, Carter only seeks leave to amend the Second Amended Complaint to
replace the now known Lt. Mauvinchi with Matuszczak. [See Dkt. 51-1, at 3-8; Dkt.
52 (Mot. Amend), at 1-2]. Carter agrees to remove Jane Does 2-7 from the Second
Amended Complaint. [Dkt. 52, at 2]. To the extent that the Second Amended
Complaint names Jane Does 1-7, Dr. Revine, and Lt. Mauvinchi, the Court hereby
GRANTS summary judgment in favor of these Defendants as Carter does not seek
to keep these names listed in the case caption. The Court will now address
Carter’s Motion to Amend the Second Amended Complaint to add Matuszczak to
Leave to amend is to be given freely “when justice so requires,” Fed. R. Civ.
P. 15(a), unless the moving party acted with “undue delay, bad faith or dilatory
motive . . . , repeated failure to cure deficiencies by amendments previously
allowed,” or the amendment would create undue prejudice to the opposing party”
or be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). However, “where the
proposed amendment seeks to add new parties, Fed. R. Civ. P. 21 governs.” Jones
v. Smith, No. 9:09-cv-1058 (GLS/ATB), 2015 WL 5750136, at *25 (N.D.N.Y. Sept. 30,
2015); see Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time,
on just term, add . . . a party.”). Such a distinction is a mere technicality as “the
same standard of liberality applies under either Rule.”
Duling v. Gristede’s
Operating Corp., 265 F.R.D. 91, 96-97 (S.D.N.Y. 2010); Faryniarz v. Ramirez, 62 F.
Supp. 3d 240, 249 n.4 (D. Conn. 2014) (same); Brown v. Tuttle, No. 3:13 CV 1444
(JBA), 2014 WL 3738066, at *2 n.5 (D. Conn. July 30, 2014) (same in a prisoner’s
civil rights case).
When there exists a scheduling order, the lenient standard of
Rule 15(a) “must be balanced against the requirement under Rule 16(b) that the
Court’s scheduling order ‘shall not be modified except upon a showing of good
cause.’” Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003); Velez v.
Burge, 483 F. App’x 626, 628 (2d Cir. 2012).
The Second Circuit has “referred to the prejudice to the opposing party
resulting from a proposed amendment as among the ‘most important’ reasons to
deny leave to amend.” AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A.,
626 F.3d 699, 725 (2d Cir. 2010) (citation omitted). “Amendment may be prejudicial
when, among other things, it would require the opponent to expend significant
additional resources to conduct discovery and prepare for trial or significantly
delay the resolution of the dispute.” Id., 626 F.3d at 725–25 (internal quotation
marks and citation omitted). A court may find an amendment to be prejudicial in
circumstances where discovery has been completed and the case is near or on the
eve of trial. Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d
Cir.1985) (affirming denial of motion to amend, which asserted new claims about a
different time period, as “especially prejudicial given the fact that discovery had
been completed and [the defendant] had already filed a motion for summary
judgment”); Braham v. Perelmuter, No. 3:15CV01094 (JCH), slip. op. at 3 (D. Conn.
Nov. 23, 2016) (denying leave to amend after complaint to add parties and add facts
and ordering inmate to respond to the motion for summary judgment). However, a
court is not required to deny the motion to amend even if at a later stage of the
litigation, particularly where the amendment “seek[s] to insert or correct matters
about which parties should have known but did not know,” as these matters are
“plainly within the scope of Rule 15(a).” Hanlin v. Mitchelson, 794 F.2d 834, 841 (2d
Defendants give two reasons why the Court should not grant leave to amend.
First, Defendants claim opposing counsel was “dilatory in discovering the
identities of these defendants” as counsel waited until May 24, 2016, to first seek
discovery and Defendants provided evidence with information that clearly
identified Matuszczak. [Dkt. 58 (Opp’n Mot. Amend), at 4]. Exhibit C contains an
Incident Report written by Matuszczak about the event on March 6, 2014, and
Carter’s placement in the RHU. [Dkt. 58-3 (Defs.’ Opp’n Mot. Amend Ex. C, Incident
Report), at 7]. Second, Defendants argue that the proposed amendment is futile
because Matuszczak has not been served in accordance with Fed. R. Civ. P. 4(m)
and counsel cannot show good cause for failure to comply. Id. at 5.
Carter avers that Defendants sent over 300 pages of discovery on July 25,
2016, just five days before the end of discovery. [Dkt. 59 (Reply to Opp’n Mot. Leave
Amend), at 4]. In addition, Carter submitted Walker’s responses to his requests for
production, requesting “[a] list of all employees assigned to CCI between March 6,
2014 and March 19, 2014, including but not limited to, correctional officers, nurses,
physicians, and any other medical personnel subcontracted to provide medical
service or transportation to inmates for medical purposes.” [See Dkt. 51-7 (Pl.’s Ex.
E, Request for Production), at 9].
Walker objected, claiming the request was
“overly broad and not proportional to the needs of the case,” id., but there is no
indication that Carter filed a motion to compel or attempted to resolve the discovery
dispute in any other way. Carter argues that Defendants are not prejudiced by an
amendment to the complaint because he does not seek to add additional counts or
facts, and Defendants had notice upon filing of the original complaint. [Dkt. 59, at
7 (citing Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996))].
The Court finds that the Defendants will not be prejudiced by granting leave
to amend the Second Amended Complaint. Indeed, the identities of Matuszczak
became apparent to both parties during discovery and the Court does not find that
the three-month delay, wherein Carter also had to review the discovery, constituted
an “undue delay.” The number of medical staff and correctional staff assigned to
the RHU between March 6 and March 18, 2014, is decidedly limited. The DOC and
defense counsel certainly had the ability to discover which personnel accessed the
RHU during this period.
Moreover, Defendants had a duty to disclose
nonprivileged relevant matter proportional to the needs of the case, Fed. R. Civ. P.
26(b)(1), and take “reasonable steps to preserve” electronically stored information
in their possession and control, Fed. R. Civ. P. 37(e), which encompassed
documents revealing the identities of people with access to Carter while in the
RHU. The Court instead is persuaded that “[t]he better view is that the [result of
this] order merely substitutes equivalent parties, different in name but identical in
fact.” Arthur v. Nyquist, 573 F.2d 134, 140 (2d Cir. 1978) (allowing board members
to be added as parties after trial closed in a civil rights class action suit under 42
U.S.C. § 1983).
For the aforementioned reasons, the Court GRANTS in part and DENIES in
part Defendants’ Motion for Summary Judgment and GRANTS Plaintiff’s Motion for
Leave to Amend to add Matuszczak as a defendant.
The parties are directed to consider settlement positions and within 21 days
of the date of this order to contact Magistrate Judge Robert Richardson to schedule
a settlement conference.
The parties are encouraged to consider and, if
appropriate, timely engage in settlement discussions as the schedule will not be
modified to accommodate settlement.
Should the parties determine that settlement is not appropriate, the Court
hereby ORDERS Defendants to file supplemental briefing as to the remaining
Defendants regarding the merits of Carter’s claims within 21 days of the date the
parties’ decision or 42 days after the date of this order, whichever is earlier.
Plaintiff shall file his response within 21 days of the Defendants’ filing.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: May 15, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?