Minnifield v. Dolan et al

Filing 52

ORDER granting 39 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 3/30/2017. (Williams, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WENDELL MINNIFIELD,
Plaintiff,
v.
ERIN DOLAN, ET AL.,
Defendants.

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Case No. 3:14-cv-1580 (VAB)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff, Wendell Minnifield, is currently incarcerated at MacDougall-Walker
Correctional Institution, in Suffield, Connecticut (“MacDougall-Walker”). Mr. Minnifield
initiated this action by filing a Complaint pro se against Defendants, Nursing Supervisor Erin
Dolan, Nursing Supervisor Heidi Greene, and Dr. James O’Halloran, under 42 U.S.C. § 1983.
On February 9, 2015, the Court dismissed Mr. Minnifield’s claims against Ms. Greene and Dr.
O’Halloran, as well as the claims for money damages against Ms. Dolan in her official capacity.
The Court concluded that Mr. Minnifield’s claims of deliberate indifference to medical needs
would proceed against Ms. Dolan in her individual capacity and official capacity. The Court
then permitted Mr. Minnifield to file an Amended Complaint within thirty days, provided that he
could describe the nature of his alleged serious medical condition and specifically allege how Dr.
O’Halloran and Nursing Supervisor Greene were involved in the claimed deliberate indifference
to his serious medical need.
On March 24, 2015, Mr. Minnifield filed an Amended Complaint that listed Nursing
Supervisor Erin Dolan, Nursing Supervisor Heidi Greene and Dr. O’Halloran as Defendants.
On November 24, 2015, the Court dismissed the claims against all Defendants for monetary

damages in their official capacities pursuant to 28 U.S.C. § 1915A(b)(2). The Court concluded
that the claims of deliberate indifference to medical needs would proceed against Defendants
Dolan, Greene and O’Halloran in their individual and official capacities.
Pending before the Court is a motion for summary judgment filed by Defendants. For the
reasons set forth below, the motion will be GRANTED.
I.

Standard of Review
In a motion for summary judgment, the burden is on the moving party to establish that

there are no genuine issues of material fact in dispute and that it is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the
suit under the governing law,” and is “genuine” if “a reasonable jury could return a verdict for
the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When a motion for summary judgment is supported by documentary evidence and sworn
affidavits and “demonstrates the absence of a genuine issue of material fact,” the nonmoving
party must do more than vaguely assert the existence of some unspecified disputed material facts
or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra
Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). Thus, the party opposing
the motion for summary judgment “must come forward with specific evidence demonstrating the
existence of a genuine dispute of material fact.” Id.
In reviewing the record, the Court must “construe the evidence in the light most favorable
to the non-moving party and to draw all reasonable inferences in its favor.” Gary Friedrich
Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted).
If there is any evidence in the record from which a reasonable factual inference could be drawn
2

in favor of the opposing party on the issue on which summary judgment is sought, however,
summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion Freight Line
Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Where one party is proceeding pro se, the court reads the pro se party’s papers liberally
and interprets them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick,
801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this
liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact”
and cannot overcome a properly supported motion for summary judgment. See Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 540 U.S. 811 (2003).
II.

Factual Allegations1
Since 1999, Mr. Minnifield has suffered from a chronic condition called folliculitis that is

also known as dissecting cellulitis. The condition causes hair follicles to grow into the scalp
instead of out of the scalp. As a result of this condition, Mr. Minnifield’s scalp is subject to
chronic bacterial infection which manifests itself in swelled lesions and chronic areas of
drainage.
Before Mr. Minnifield’s transfer to MacDougall-Walker in June 2014, the nursing staff at
Cheshire Correctional Institution (“Cheshire”) provided Mr. Minnifield with daily scalp scrubs,

The relevant facts are taken from Defendants’ Local Rule 56(a)(1) Statement [ECF No. 39-14] and Exhibits
submitted in support of the Local Rule 56(a)(1) Statement [ECF Nos. 39-2 through 39-13], [ECF No. 40] and [ECF
Nos. 49, 50]. Although Mr. Minnifield did not submit a formal Local Rule 56(a)(2) Statement, the Court liberally
construes his memorandum in response to the motion for summary judgment, [ECF No. 44], beginning at the
“FACTS” section on the first page through the section immediately before the “STANDARD” section on page eight,
as a Local Rule 56(a)(2) Statement. In addition, the Complaint [ECF No. 1] and Amended Complaint [ECF No. 13]
may be treated as affidavits or declarations because the contents of those documents are sworn to under penalty of
perjury. See Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (citing Pfeil v. Rogers, 757 F.2d 850, 859 & n.15
(7th Cir. 1985) (noting that documents sworn under penalty of perjury may suffice for summary judgment purposes
even if they do not meet all of the formal requirements of a notarized affidavit).
1

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which included the manual expression, or squeezing, of pus from lesions or abscesses on his
scalp. At Cheshire, medical staff also prescribed antibiotics and pain medication, as necessary,
to treat Mr. Minnifield’s folliculitis.
On June 5, 2014, prison officials at Cheshire transferred Mr. Minnifield to MacDougallWalker. At the time of his arrival at MacDougall-Walker, Mr. Minnifield signed a receipt
indicating that he had received an Inmate Handbook which included an explanation of the inmate
grievance procedures. Mr. Minnifield had received similar inmate handbooks, which also
included explanations of the inmate grievance procedures, at other facilities in which he had
been confined since 1995.
On June 6, 2014, Dr. O’Halloran prescribed two antibiotics to treat infection, one
medication to treat pain, and a topical steroid to treat inflammation of the skin. He also ordered
the nursing staff to apply warm compresses to Mr. Minnifield’s scalp, to express as much pus as
possible from the lesions/abscesses on his scalp, to cleanse his scalp with a special shampoo and
to apply a dry sterile dressing over the area every day for a year.
On June 10, 2014, Nursing Supervisor Erin Dolan issued an order directing the nursing
staff at MacDougall-Walker to perform Mr. Minnifield’s scalp care in a sick call room instead of
in the medical unit. Mr. Minnifield did not want to have the scalp treatment performed in the
sink of the sick call room because he thought the sink was unsanitary and the room lacked
privacy. He refused treatment for his scalp for three days.
On June 13, 2014, medical staff called Mr. Minnifield to the medical unit. Mr.
Minnifield met with Nursing Supervisor Dolan and Dr. James O’Halloran. During the meeting,
Nursing Supervisor Dolan and Dr. O’Halloran told Mr. Minnifield that he should be engaging in
4

his own scalp care. Dr. O’Halloran stated that expressing or squeezing lesions was beyond the
scope of practice for the nursing staff at MacDougall Walker. He approved an order that
required Mr. Minnifield to perform his own scalp care, including the expression of scalp lesions
while he was taking a shower. Medical staff at MacDougall-Walker continued to prescribe
antibiotics and pain medication as well as the special shampoo as necessary. Dr. O’Halloran
informed Mr. Minnifield that he should notify the nursing staff if he observed any adverse
changes in the condition of his scalp and suggested that the nursing staff would be changing the
dressings on his scalp.
On June 10, 2014, Mr. Minnifield submitted an inmate request form to Health Services
Administrator Lightner, claiming that the sick call room was unsanitary and that he refused to
perform the scalp care in the room. On June 17, 2014, Adminstrator Lightner authorized Mr.
Minnifield to use the shower in the medical unit to perform his scalp treatment.
Over the next year, the nursing staff at MacDougall-Walker would make a notation in his
medical records when Mr. Minnifield came to the medical department for his shower and to pick
up supplies to treat his scalp condition. Mr. Minnifield observed that his scalp condition became
worse at times. When unusual or excess discharge became visible on the bandages, he would
show the nursing staff his scalp and the bandages that he had applied to his scalp. If the nurses
observed a problem with the condition of his scalp, they would make notations in Mr.
Minnifield’s medical records and would refer Mr. Minnifield to be seen by a physician.
On July 17, 2014, Mr. Minnifield complained that he had a headache and asked to be
seen by someone in the medical department. He saw Nurse Aimee Chofay, who determined that
Mr. Minnifield had already been prescribed Motrin for pain and that his condition was not an
5

emergency. Nurse Chofay directed Mr. Minnifield to submit a request to be seen at sick call the
following day.
On July 27, 2014, Mr. Minnifield complained that he had not received or been permitted
to use a shaver that the medical department had purchased for him to shave his scalp. On
September 4, 2014, Health Services Administrator Lightner disposed of the grievance by
providing a shaver to Mr. Minnifield due to his medical need to keep hair off of his scalp.
On August 28, 2014, Mr. Minnifield informed a nurse that he was concerned that his
abscesses had become worse. The nurse scheduled Mr. Minnifield to see a physician, and on
August 29, 2014, Dr. O’Halloran met with Mr. Minnifield. Mr. Minnifield discussed his
concerns about performing his own scalp care with Dr. O’Halloran.
During the period from June 5, 2014 to April 30, 2015, Mr. Minnifield was not
considered to be indigent, thus the governing policy permitted medical officials at MacDougallWalker to charge Mr. Minnifield a $3.00 co-pay for every medical visit. The policy also
provided that medical staff are not permitted to deny an inmate treatment on the basis that the
inmate cannot pay the $3.00 co-pay.
On July 9, 2015, Dr. Naqvi saw Mr. Minnifield in response to Mr. Minnifield’s request to
be able to use a head shaver. Dr. Naqvi noted that Mr. Minnifield’s chronic scalp infection
appeared to be in better shape.
III.

Discussion
Defendants assert two arguments in support of their motion for summary judgment. They

contend that: (1) Mr. Minnifield has failed to exhaust his administrative remedies as to two
claims in the Amended Complaint; and (2) Mr. Minnifield has failed to allege sufficient facts to
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demonstrate deliberate indifference to his medical need.
As a preliminary matter, the Court notes that Mr. Minnifield’s reply brief in support of
his memorandum in opposition to the motion for summary judgment includes a claim that he
served interrogatories on Defendants in June 2016, but Defendants did not respond to this
discovery request. See Pl.’s Reply Br. at 4, ECF No. 48. In addition, Mr. Minnifield contends
that he has been unable to obtain affidavits or conduct depositions. Id.
Federal Rule of Civil Procedure 56(d) permits a court, in the exercise of its discretion, to
defer or deny a decision on summary judgment if a “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition.”
Rule 56(d) requires “submitting an affidavit that includes ‘the nature of the uncompleted
discovery; how the facts sought are reasonably expected to create a genuine issue of material
fact; what efforts the affiant has made to obtain those facts; and why those efforts were
unsuccessful.’” Whelehan v. Bank of Am., 621 F. App’x 70, 73 (2d Cir. 2015) (summary order)
(quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (applying an
earlier and substantially similar version of the Rule)).
When a party submits an affidavit under Rule 56(d) that includes insufficient or
conclusory descriptions of forthcoming evidence, and/or fails to explain how that evidence
would demonstrate the existence of a genuine issue of material fact, courts routinely deny such
requests to continue discovery. See, e.g., Gualandi v. Adams, 385 F.3d 236, 245 (2d Cir. 2004)
(affirming district court's implicit denial of discovery where plaintiff failed to “demonstrate that
additional discovery was needed in order to decide the jurisdictional issue”); United States v.
Private Sanitation Indus. Ass'n, 995 F.2d 375, 377 (2d Cir. 1993) (affirming district court's
7

denial of discovery where affidavit “only speculated about what further discovery might reveal”
and failed to “describe[ ] in specific terms evidence that might be forthcoming and would
demonstrate that a genuine issue actually existed”); Riley v. Town of Bethlehem, 44 F. Supp. 2d
451, 459 (N.D.N.Y. 1999) (concluding that an affidavit failed to adequately explain “why
plaintiff cannot oppose summary judgment without discovery”). Moreover, “[a] court is not
required to withhold consideration of a summary judgment motion based on mere speculation.”
Roswell Capital Partners LLC v. Alternative Constr. Techs., 638 F. Supp. 2d 360, 372 (S.D.N.Y.
2009).
Mr. Minnifield has not filed an affidavit or declaration in support of his request to
continue discovery. Although he mailed the interrogatories to counsel for Defendants before the
deadline for completing discovery expired, counsel has averred that he did not receive the
interrogatories until July 20, 2016, after the discovery deadline had expired. See Mot. Compel,
ECF No. 36; Opp’n Mot. Compel Ex. A at ¶ 4, ECF No. 37-1. In addition, Mr. Minnifield does
not assert that he made any attempts to resolve the discovery dispute or to contact counsel for
Defendants between serving his discovery request and filing the motion to compel. See Mot.
Compel at 1, ECF No. 36. Furthermore, Mr. Minnifield has not demonstrated how any
undiscovered evidence could create a genuine issue of material fact. Thus, the Court concludes
that Mr. Minnifield has not met the necessary requirements of Rule 56(d) in order to grant him
additional time to conduct discovery. Accordingly, the Court will not defer ruling on the motion
for summary judgment to permit Mr. Minnifield to conduct additional discovery.

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A.

Exhaustion of Administrative Remedies

Defendants argue that Mr. Minnifield failed to exhaust his administrative remedies as to
the claims against Nursing Supervisor Greene regarding the use of the shaver in the medical unit
as well as the $3.00 co-pay to be treated in the medical unit for issues related to his scalp
condition. Mr. Minnifield argues that he exhausted his available remedies regarding these claims
against Nursing Supervisor Greene.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), requires an inmate to
exhaust “administrative remedies as are available” before bringing an “action ... with respect to
prison conditions.” The Supreme Court has held that this provision requires an inmate to exhaust
administrative remedies before filing any type of action in federal court, see Porter v. Nussle,
534 U.S. 516, 532 (2002), regardless of whether the inmate may obtain the specific relief he
desires through the administrative process. See Booth v. Churner, 532 U.S. 731, 741 (2001).
Furthermore, the PLRA requires “proper exhaustion” which includes complying with all
“procedural rules,” including filing deadlines, as defined by the particular prison grievance
system. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Thus, “untimely or otherwise
procedurally defective attempts to secure administrative remedies do not satisfy the PLRA’s
exhaustion requirements.” Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006)
(quoting Woodford, 548 U.S. at 83-84).
In Ross v. Blake, 136 S. Ct. 1850 (2016), the Supreme Court rejected the judicially
created special exceptions to the exhaustion requirement of the PLRA. See id. at 1362 (“Courts
may not engraft an unwritten ‘special circumstances’ exception onto the PLRA’s exhaustion
requirement.”). The Court concluded that the PLRA includes a single “textual exception” – that
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an inmate must only exhaust remedies that are “available” to him or her. Id. at 1856. Thus,
aside from the availability of remedies to a prisoner, there are no limits on an inmate’s obligation
to exhaust administrative remedies, irrespective of any “special circumstances.” Id. at 1858
(“The PLRA’s history (just like its text) thus refutes a ‘special circumstances’ exception to its
rule of exhaustion”). The Supreme Court described three scenarios in which administrative
procedures are officially adopted by a prison facility but are not capable of use to obtain relief
for the conduct complained about, and therefore are unavailable. Id. at 1859. First, an
administrative remedy may be unavailable when “it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an
administrative scheme might be so opaque that it becomes, practically speaking, incapable of
use” because an “ordinary prisoner can[not] discern or navigate it” or “make sense of what it
demands.” Id. (citations omitted). Third, an administrative remedy may be unavailable “when
prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1860.
Failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) is an affirmative
defense. See Jones v. Bock, 549 U.S. 199, 215 (2007). Thus, the defendants have the burden to
prove that Mr. Minnifield has not exhausted his claim prior to filing this action. See Johnson v.
Mata, 460 Fed. 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.”).
Matters relating to the provision of health services to inmates are grievable and are
addressed in Administrative Directive 8.9. See Connecticut Department of Correction
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Administrative Directive 8.9, effective July 24, 2012, Defs.’ Ex. K, ECF No. 39-12. There are
two types of Health Services Review: Diagnosis and Treatment, and Review of an
Administrative Issue. Id. at 8.9(9)(A)&(B). Under Administrative Directive 8.9, an inmate
seeking either type of review must first attempt to seek informal resolution before filing a formal
request for a Health Services Review. Id. at 8.9(10). If an inmate is not happy with the informal
resolution of his or her issue, he or she may file an Inmate Administrative Remedy Form seeking
either (a) a review of a medical decision regarding the diagnosis or treatment, or lack of a
diagnosis or treatment, of a medical condition; or (b) a review of a practice, procedure, policy or
administrative provision, or the alleged improper conduct of a health services provider. See id. at
8.9(11) & (12). If an inmate is not satisfied with the response to his or her request for review of
a procedure or practice, he or she may appeal the decision within ten business days of receiving
the decision. Id. at 8.9(12)(B).
Once an appeal is filed, the health services provider or the designated facility health
services director must decide the appeal “within fifteen business days of receiving the appeal.”
Id. at 8.9(12)(C). If the issue being raised “relates to a health services policy of the Department,
the inmate may appeal to the DOC Director of Health Services within ten business days of”
receiving the decision from the from the health services provider or designated facility health
services director. Id. at 8.9(12)(D).
The Court concludes that administrative remedies were “officially on the books” at the
time of the incidents described in the complaint. Ross, 136 S. Ct. at 1859. Mr. Minnifield’s
claims of health services policies and treatment fall within matters that were grievable under the
Inmate Grievance Procedure. Id. Thus, administrative remedies were available to Mr.
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Minnifield regarding his claims, and he was on notice of the inmate grievance procedures when
arrived at MacDougall-Walker on June 5, 2014. See Minnifield Dep. at 13, Defs.’ Ex. B, ECF
No. 39-3; Receipt of Inmate Handbook, Defs.’ Ex. C, ECF No. 39-4. Because Defendants raised
the failure to exhaust administrative remedies as an affirmative defense in their answer, they
have not waived the defense.
Defendants argue that Mr. Minnifield has failed to exhaust his remedies as to two claims:
(1) his claim that Nursing Supervisor Greene’s refusal to charge his shaver resulted in his having
to use the shaver in the medical unit, and (2) his claim that Nursing Supervisor Greene would not
permit him to be treated or seen in the medical unit for issues related to his scalp condition unless
he first submitted a sick call request and paid the $3.00 co-pay. For the reasons outlined below,
the Court agrees with Defendants.
1.

Claim Regarding Use of Shaver

In June 2014, Mr. Minnifield informed Nursing Supervisor Greene that his scalp
condition required him to keep his scalp shaved and that the medical staff at Cheshire had
provided him with a shaver to enable him to shave his scalp every two weeks. See Sealed
Medical Record at 17, Defs.’ Ex. G, ECF No. 40. Mr. Minnifield states that, at MacDougallWalker, Health Services Administrator Lightner supplied him with his own head shaver;
however, he claims that at some point Nursing Supervisor Greene complained about having to
charge the head shaver for him. See Jul. 2014 Grievance at 3, Defs.’ Ex. H, ECF No. 39-9; Am.
Compl. ¶ 16, ECF No. 13. As a result of Nursing Supervisor Greene’s complaints, on February
19, 2015, Health Services Administrator Lightner informed Mr. Minnifield that the medical
department would not provide him with an electric razor and razor blades and that he could
12

purchase the same items in the prison commissary. Id.; Health Services Corresp., Pl.’s Ex. 4,
ECF No. 44.
Mr. Minnifield claims that he did not purchase a shaver and thus was forced to use the
shaver in the medical unit to shave his scalp. Am. Compl. ¶ 16, ECF No. 13. Mr. Minnifield
objected to using the medical unit’s shaver because they were used on numerous other inmates
and could cause his scalp, as well as other inmates’ scalps, to become infected. Id. Mr.
Minnifield does not, however, allege that he exhausted his administrative remedies with respect
to his claim that Nursing Supervisor Greene refused to charge his shaver, nor does he address the
exhaustion of that claim in his response to the motion for summary judgment.
The Court concludes that Mr. Minnifield has presented no evidence to support a finding
that the Department of Correction’s grievance procedures were unavailable to him with regard to
his claim against Nursing Supervisor Greene regarding his shaver. The record includes no
factual allegations or evidence to suggest that Mr. Minnifield did not have access to or could not
take advantage of the Department of Correction’s grievance process to fully exhaust
administrative remedies with respect to his claim. Nevertheless, although Nursing Supervisor
Greene's alleged actions were briefly referenced in Mr. Minnifield’s July 2014 grievance, he
never directly made an internal complaint or filed a grievance about those actions. Because Mr.
Minnifield has not demonstrated that the grievance process was unavailable to him with regard to
this claim against Nurse Green, he has not met the sole exception to the PLRA’s administrative
exhaustion requirement.
Defendants have met their burden of demonstrating that there are no issues of material
fact in dispute as to whether Mr. Minnifield exhausted his administrative remedies in connection
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with his claim that Nursing Supervisor Greene’s refusal to charge his head shaver forced him to
use the shaver in the medical unit. Thus, Defendants are entitled to judgment as a matter of law,
and Defendants’ motion for summary judgment is granted on this ground.
2.

Claim Regarding Sick Call Requests

Mr. Minnifield claims that, on July 18, 2014, he spoke to Nursing Supervisor Greene
regarding why he was being denied treatment for his scalp condition. See Am. Compl. ¶ 11.
Nursing Supervisor Greene allegedly informed Mr. Minnifield that he must submit a sick call
request and pay the $3.00 co-pay, if he sought treatment for any medical condition, including his
scalp condition. Id. Mr. Minnifield disagreed with this requirement. Id. He argues that he fully
exhausted his remedies as to this claim.
The evidence shows that Mr. Minnifield raised this claim in a grievance dated July 29,
2014. See Jul. 2014 Grievance at 2-3, Defs.’ Ex. I, ECF No. 39-10. On August 4, 2014, Nurse
Dolan denied the grievance and indicated that any inmate who seeks health services must pay a
$3.00 fee for a sick call. Id. at 3. On August 8, 2014, Mr. Minnifield appealed the denial of his
grievance. Id. at 7-8. On October 10, 2014, Health Services Administrator Lightner denied the
appeal and noted that the decision could be appealed within ten days to the Department of
Correction’s Director of Health Services. Id.
Mr. Minnifield testified at his deposition that he received a copy of the appeal more than
ten days after it was issued. Minnifield Dep. at 31, Defs.’ Ex. B. According to Mr. Minnifield,
he did not further appeal the decision because he thought it was too late. Id. It is evident that
Mr. Minnifield was mistaken in concluding that he could not further appeal the decision to the
DOC Director of Health Services.
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Administrative Directive 8.9(12)(D) provides that if the issue being raised “relates to a
health services policy of the Department, the inmate may appeal to the DOC Director of Health
Services within ten business days of” receiving the decision from the contracted health services
provider or designated facility health services director. See Administrative Directive at
8.9(12)(D), Defs.’ Ex. K. Thus, if Mr. Minnifield had filed his appeal with the DOC Director of
Health Services within ten days of receiving the decision from Health Services Administrator
Lightner, the appeal would have been timely.
Mr. Minnifield claims that he was not required to appeal his grievance further because he
was not challenging the policy of having to pay for a sick-call request. Upon review of Mr.
Minnifield’s initial appeal to Health Services Administrator Lightner, however, it is clear that
Mr. Minnifield did challenge this policy, as he argued that he should not have to pay for a sick
call request or to be seen by medical staff because his condition was an ongoing condition that
medical staff was supposed to be monitoring. Jul. 2014 Grievance at 7-8, Defs.’ Ex. I.
Mr. Minnifield presented no evidence to support a finding that the Department of
Correction’s grievance procedures were unavailable to him with regard to his claim against
Nursing Supervisor Greene about the $3.00 sick call fee. There are no facts or evidence to
suggest that Mr. Minnifield did not have access to or could not take advantage of the Department
of Correction’s grievance process to fully exhaust his claim. Because Mr. Minnifield has not
demonstrated that the grievance process was unavailable to him with regard to the claim
regarding the required sick call fee, he has not met the sole exception to the PLRA’s
administrative exhaustion requirement.

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While Mr. Minnifield did initiate the administrative complaint process by filing a
grievance, Mr. Minnifield did not fully complete the available administrative process by filing a
final appeal to the DOC Director of Health Services. See Jones, 549 U.S. at 218 (to properly
exhaust available administrative remedies under the PLRA, inmates are required to “‘complete
the administrative review process in accordance with the applicable’” grievance procedures
adopted by the particular correctional institution to which they are confined) (quoting Woodford,
548 U.S. at 88). Based on the evidence submitted by Defendants regarding Mr. Minnifield’s
failure to complete the available grievance procedures pertaining to his claim against Nursing
Supervisor Greene about the co-pay requirement, Defendants have sustained their burden of
demonstrating that there are no issues of material fact in dispute as to the exhaustion of
administrative remedies with respect to this claim.
The Court concludes that Mr. Minnifield was challenging a health services policy—
specifically, the requirement that every inmate must pay a co-pay or fee to be seen by medical
staff—and thus he did not fully exhaust his available health services remedies under
Administrative Directive 8.9 prior to filing this action. Accordingly, Defendants’ motion for
summary judgment is granted at to this claim.
B.

Deliberate Indifference to Medical Needs

Defendants Dolan and O’Halloran argue that they were not deliberately indifferent to Mr.
Minnifield’s medical condition. Mr. Minnifield contends that he has submitted sufficient
evidence to create a genuine issue of material fact regarding Defendants’ conduct and whether it
constituted deliberate indifference to his serious medical need.

16

Deliberate indifference by prison officials to a prisoner’s serious medical need constitutes
cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429
U.S. 97, 104 (1976). There is a subjective and an objective component to the deliberate
indifference standard. See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).
Objectively, the alleged deprivation of medical care must be “sufficiently serious.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991). A “sufficiently serious” deprivation exists if the
plaintiff suffers from an urgent medical condition that is degenerative or is capable of causing
death or extreme or chronic pain. See Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003)
(citation omitted); Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
marks and citations omitted). A medical condition may not initially be serious, but may become
serious because it is degenerative, and if left untreated or neglected for a long period of time, will
“result in further significant injury or the unnecessary and wanton infliction of pain.” Harrison
v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (citations omitted). The Second Circuit has
identified several factors that are highly relevant to the inquiry into the seriousness of a medical
condition: “an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citations omitted).
The plaintiff must also allege that, subjectively, the defendant prison official “act[ed]
with a sufficiently culpable state of mind.” Id. (internal quotation marks and citation omitted).
Thus, the defendant must have been actually aware of a substantial risk that the inmate would
suffer serious harm as a result of his or her actions or inactions and have disregarded that risk.
17

See Salahuddin, 467 F.3d at 279-80. The fact that a prison official did not alleviate a significant
risk that he should have perceived but did not actually perceive does not constitute deliberate
indifference. See Farmer v. Brennan, 511 U.S. 825, 838 (1994).
Mere disagreement with prison officials about what constitutes appropriate care does not
state a claim cognizable under the Eighth Amendment. “So long as the treatment given is
adequate, the fact that a prisoner might prefer a different treatment does not give rise to an
Eighth Amendment violation.” Chance, 143 F.3d at 703. Thus, the “essential test is one of
medical necessity and not one simply of desirability.” Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir. 1986) (internal quotation marks omitted).
Furthermore, negligence or medical malpractice claims are not cognizable under the
Eighth Amendment. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (observing that
showing of medical malpractice is insufficient, on its own, to establish deliberate indifference).
Thus, “not every lapse in prison medical care will rise to the level of a constitutional violation.”
See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). In certain situations, however,
“instances of medical malpractice may rise to the level of deliberate indifference, namely, when
the malpractice involves culpable recklessness, i.e., an act or failure to act by the prison doctor
evinces a conscious disregard of a substantial risk of serious harm.” Hathaway, 99 F.3d at 553
(internal quotation marks and citation omitted).
Defendants O’Halloran and Dolan do not contest that Mr. Minnifield suffered from a
serious medical condition. Instead, they argue that they were not deliberately indifferent to his
scalp condition.

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1.

Dr. James O’Halloran

Mr. Minnifield’s medical records reflect that the day after his transfer to MacDougallWalker, Dr. O’Halloran prescribed pain medication and two antibiotics to treat infection and one
medication to treat pain. See Physician’s Orders, Dolan Aff. at 3, Defs.’ Ex. M, ECF Nos. 46-1
and 49. Mr. Minnifield testified at his deposition that he had been prescribed similar, if not the
same, medications at Cheshire to treat his scalp condition. See Minnifield Dep. at 13-14, Defs.’
Ex. B. Dr. O’Halloran also orders that the following treatment be provided by the nursing staff
every day for a year: the application of warm compresses to Mr. Minnifield’s scalp, expression
of as much pus as possible from the lesions/abscesses on his scalp, cleansing of his scalp with a
special shampoo, and application of a dry sterile dressing over the area. See Physician’s Orders,
Dolan Aff. at 3, Defs.’ Ex. M. This was the same treatment that the nursing staff at Cheshire had
performed on Mr. Minnifield’s scalp.
Dr. O’Halloran then learned from Nursing Supervisor Dolan that the task of expressing
pus out of lesions on an inmate’s body was not within the scope of the duties of a correctional
nurse. See Halloran Aff. ¶¶ 4-5, Defs.’ Ex. D, ECF No. 39-5. Based on this information, on June
13, 2014, Dr. O’Halloran discontinued that portion of the daily treatment of Mr. Minnifield’s
scalp condition. Id. at ¶ 5; Sealed Medical Records at 16, Defs.’ Ex. G. He instructed Mr.
Minnifield to perform the tasks of scrubbing his scalp and expressing pus from the lesions on his
scalp while showering. Halloran Aff. ¶ 5, Defs.’ Ex. D. He also encouraged Mr. Minnifield to
inform nurses of any changes in the condition of his scalp during the times when he would be in
the medical department for dressing changes. Id. Health Services Administrator Lightner made
arrangements for Mr. Minnifield to take his showers in the medical department, to obtain
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supplies for his scalp, and to have nurses check the dressings to be applied to his scalp. Jul. 2014
Grievance at 6, Defs.’ Ex. H; Sealed Medical Records at 14, Defs.’ Ex. G.
Mr. Minnifield did not agree that he should be performing his own scalp scrubs, and he
expressed his disagreement with this requirement to Dr. O’Halloran at a meeting on June 13,
2014. Sealed Medical Records at 16, Defs.’ Ex. G. He also filed a grievance in July 2014
expressing his disagreement and, on August 29, 2014, he spoke to Dr. O’Halloran again about
his disagreement with the requirement that he treat himself. Jul. 2014 Grievance at 2-9, Defs.’
Ex. H; Sealed Medical Records at 21, Defs.’ Ex. G.
Mr. Minnifield contends that Dr. O’Halloran was deliberately indifferent to his medical
needs by requiring or permitting him to perform the scalp treatments rather than having medical
personnel perform the specified tasks. Dr. O’Halloran states that he was aware that Mr.
Minnifield had received scalp scrubs from the nurses at Cheshire, and he explains that he was
also aware that a component of the treatment was the expression of pus from the lesions on his
scalp. Halloran Aff. ¶ 4, Defs.’ Ex. D. Dr. O’Halloran’s recommendations suggest that
cleansing Minnifield’s scalp and squeezing or expressing the pus out of the scalp lesions were
necessary and important steps in the treatment of Mr. Minnifield’s condition. Id. at ¶¶ 4-5. In
addition, Mr. Minnifield acknowledges that this treatment had improved his condition. See Pl.’s
Opp. at 4, ECF No. 44; Clinical Record, Pl. Ex. 1, ECF No. 44. Nonetheless, although the
treatment was necessary, Dr. O’Halloran also believed that Minnifield could perform the handson scalp treatment tasks himself. Halloran Aff. ¶ 5, Defs.’ Ex. D. Mr. Minnifield has presented
no evidence to suggest that he was not able to perform the tasks of cleansing his scalp,
expressing the pus from the lesions, and applying the necessary bandages to his scalp.
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The Court concludes that Dr. O’Halloran’s requirement that Mr. Minnifield perform the
hands-on scalp treatment tasks himself did not constitute deliberate indifference to a substantial
risk of harm to Mr. Minnifield in light of his medical condition. Even if Dr. O’Halloran’s belief
that it was acceptable and appropriate for Mr. Minnifield to express pus out of the lesions on his
scalp and cleanse his scalp in the shower in the medical department was, in fact, incorrect, that
belief could constitute negligence at most, rather than deliberate indifference. See Farmer, 511
U.S. at 844 (acknowledging that prison officials could prove they were subjectively unaware of
the risk to inmate health if they demonstrated that “they knew the underlying facts but believed
(albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent”);
Salahuddin, 467 F.3d at 280-81 (2d Cir. 2006) (noting that a “defendant’s belief that his conduct
poses no risk of serious harm (or an insubstantial risk of serious harm) need not be sound so long
as it is sincere). Because the evidence does not raise a genuine factual question concerning
whether Dr. O’Halloran’s conduct constituted deliberate indifference to Mr. Minnifield’s
medical needs, Dr. O’Halloran is entitled to judgment as a matter of law on this Eighth
Amendment claim.
Mr. Minnifield also contends that Dr. O’Halloran’s failure to examine his scalp during
the August 29, 2015 appointment constituted deliberate indifference to his medical condition.
There is no indication in Dr. O’Halloran’s notes to suggest that he, in fact, examined Minnifield
on that date. Sealed Medical Records at 12, Defs.’ Ex. G. Rather, the appointment was made to
discuss an issue with regard to Mr. Minnfield’s use of a razor to shave his scalp. Id. There is a
notation by Dr. O’Halloran that Mr. Minnifield had been examined by dermatologists in the past
and that he would review the consultation reports to determine if any other treatments had been

21

recommended or suggested. Id. Dr. O’Halloran further states that he did not receive any
complaints that Mr. Minnifield’s scalp condition had become worse after Mr. Minnifield began
to express pus from the lesions on his own scalp in June 2014. Id., Halloran Aff. ¶ 7, Defs.’ Ex.
D.
It is not clear from the medical records whether Mr. Minnifield described his concerns
about abscesses or lesions on his scalp during the August 29, 2015 appointment with Dr.
O’Halloran. Mr. Minnifield states in his Amended Complaint that he was seen by “the doctor”
on August 29, 2015, who explained that Nursing Supervisor Dolan had recommended that he
discontinue his order that required a nurse to perform his scalp treatments. See Am. Compl. at ¶
14, ECF No. 13. According to Mr. Minnifield, the doctor did nothing to assist or help him. Id.
Mr. Minnifield does not claim to have made further requests for treatment from the
nursing staff or Dr. O’Halloran, nor does he state that he identified new problems with the
condition of his scalp. There are no other entries in Minnifield’s medical records to suggest that
Dr. O’Halloran treated him after August 29, 2015, and Mr. Minnifield does not contend that Dr.
O’Halloran saw him or provided him with further treatment after that date. Under these facts,
Dr. Halloran’s alleged failure to assist or treat Mr. Minnifield on a single occasion in August
2014 does not constitute deliberate indifference to medical needs.
The Court concludes that Defendant O’Halloran has demonstrated the absence of a
material fact in dispute regarding his treatment decisions in connection with Mr. Minnifield’s
scalp condition. Dr. O’Halloran is entitled to judgment as a matter of law with respect to Mr.
Minnifield’s deliberate indifference to medical needs claim. Accordingly, Defendants’ motion

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for summary judgment is granted as to the Eighth Amendment claim against Defendant
O’Halloran.
2.

Nursing Supervisor Dolan

Mr. Minnifield asserts several claims against Nursing Supervisor Dolan regarding
treatment for his scalp condition. He first claims that Nursing Supervisor Dolan convinced Dr.
O’Halloran to eliminate the portion of the treatment plan for his scalp condition that involved the
hands-on cleansing of his scalp by nurses. He also asserts that she attempted to coerce him into
accepting the revised treatment plan. Mr. Minnifield alleges that, before his appointment with
Dr. O’Halloran and Nursing Supervisor Dolan on June 13, 2014, Nursing Supervisor Dolan
spoke to custody officials about the possibility of transferring him back to Cheshire because
Cheshire medical staff could offer treatment that MacDougall-Walker medical staff could not
offer.
Nursing Supervisor Dolan has filed an affidavit in which she states that, when she learned
about the concerns of nurses at MacDougall-Walker in response to Dr. O’Halloran’s order,
requiring them to treat Mr. Minnifield’s scalp by expressing as much pus as possible from
lesions on his scalp, she reviewed the Connecticut Managed Health Care nursing practice
policies. See Dolan Aff. ¶ 3, Defs.’ Ex. M. Those policies indicated that squeezing or
expressing pus from lesions was outside of the authorized practice of correctional nurses. Id.
She states that she informed Dr. O’Halloran of the policies, and he decided to revise his order
regarding the hands-on treatment of Mr. Minnifield’s scalp condition. Id.
The policies which are attached to Doctor of Nursing Mary Ellen Castro’s affidavit
support the interpretation of Nursing Supervisor Dolan and Dr. O’Halloran. See Nurse Practice

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Manual, Castro Aff. at 4-7, Defs.’ Ex. F, ECF No. 39-7. Furthermore, Dr. Monica Farinella,
Acting Director of Correctional Managed Health Care at the University of Connecticut Health
Center, concurs with Dr. Castro regarding the meaning of the nursing practice policies governing
the treatment of abscesses and lesions by correctional nurses. Id.; Farinella Aff. at ¶ 3, Ex. E,
ECF No. 39-6. Mr. Minnifield has offered no evidence to contradict these affidavits or to
suggest that Nursing Supervisor Dolan’s conclusions were inaccurate.
Mr. Minnifield also claims that Nursing Supervisor Dolan spoke to Captain Corl prior to
the meeting with Dr. O’Halloran on June 13, 2013 regarding a request to transfer Mr. Minnifield.
However, Ms. Dolan claims that she never approached or spoke to Captain Corl regarding such a
request. See Dolan Aff. ¶ 6, Defs.’ Ex. M. According to Nursing Supervisor Dolan, it would
have been unnecessary to speak to Captain Corl about an inmate transfer because the medical
department has the authority to transfer inmates without the consent of the warden or other
prison staff. Id. In response, Mr. Minnifield has offered a copy of a handwritten notation from
an individual referred to as Captain Payne, who states that he contacted Captain Corl regarding
Mr. Minnifield’s medical condition. See Payne Letter, Pl.’s Ex. 2, ECF No. 44. According to
this letter, Captain Corl recalled Minnifield’s medical condition, but did not recall any
interaction with Nursing Supervisor Dolan. Id. According to this letter, Captain Payne was told
by Captain Corl that medical department officials can transfer inmates out of a facility without
the assistance of custody officials. Id.
The statements of Captain Payne and Captain Corl constitute hearsay and cannot be used
to create an issue of material fact. See Garcia v. Brown, 442 F. Supp. 2d 132, 143 (S.D.N.Y.
2006) (“Needless to say, these hearsay (and double hearsay) statements are not competent

24

evidence and so cannot raise a genuine issue of material fact.”). Even if the statements of
Captains Payne and Corl could be considered, however, they simply support Nursing Supervisor
Dolan’s affidavit regarding her claim that it would have been unnecessary to contact custody
about transferring Mr. Minnifield back to Cheshire.
The allegations against Nursing Supervisor Dolan regarding her role in facilitating a
change in the hands-on treatment of his scalp condition do not rise to the level of deliberate
indifference to a serious medical need. As indicated above, Mr. Minnifield has not presented
any evidence to suggest that the revised plan of treatment for his scalp condition was medically
inappropriate. The fact that correctional nurses previously performed the hands-on scalp scrubs
and expression of pus from lesions on Mr. Minnifield’s scalp does not necessitate the conclusion
that a later decision requiring Mr. Minnifield to perform the same treatment on himself
constituted deliberate indifference on the part of Nursing Supervisor Dolan or Dr. O’Halloran.
There is no evidence to support the allegation that Nursing Supervisor Dolan spoke to
Captain Corl about a transfer. Furthermore, it is undisputed that, although medical personnel may
effect a transfer without the consent of custody staff, medical personnel did not transfer Mr.
Minnifield from MacDougall-Walker. Accordingly, there is no support for the allegation that
Nursing Supervisor Dolan improperly attempted to coerce Mr. Minnifield to accept the treatment
offered by Dr. O’Halloran for his scalp condition. The allegations against Nursing Supervisor
Dolan regarding the implementation of the revised hands-on treatment plan for Mr. Minnifield’s
scalp condition amount to a disagreement regarding treatment, not an unreasonable condition on
the provision of treatment or the refusal of treatment as punishment or for some other invalid,
non-medical reason. A disagreement regarding treatment does not rise to the level of deliberate
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indifference to medical needs. See Chance, 143 F.3d at 703 (“So long as the treatment given is
adequate, the fact that a prisoner might prefer a different treatment does not give rise to an
Eighth Amendment violation.”); Dean v. Coughlin, 804 F.2d 207 215 (2d Cir. 1986) (“essential
test [in determining whether provision of a particular type of medical treatment constitutes
deliberate indifference by medical officials] is one of medical necessity and not one simply of
desirability”) (internal quotation marks omitted).
Finally, the Amended Complaint includes a third claim against Nursing Supervisor Dolan
related to a situation in which Nurse Aimee Chofay allegedly refused to treat Mr. Minnifield on
July 17, 2014. On that date, Mr. Minnifield claims to have experienced head pain and dizziness,
making it difficult to sleep. Am. Compl. ¶ 10, ECF No. 13. A correctional officer escorted Mr.
Minnifield to the medical department, and Mr. Minnifield spoke to Nurse Chofay. Id.
According to Mr. Minnifield, Nurse Chofay refused to treat him because Nursing Supervisor
Dolan had directed her not to do so. See id.
Nurse Chofay has filed an affidavit in which she states that, on July 17, 2014, an officer
brought Mr. Minnifield to the medical unit because of complaints of a severe headache. See
Chofay Aff. at ¶ 4, Defs.’ Ex. N, ECF Nos. 46-1 and 50. Nurse Chofay assessed Mr. Minnifield
and determined that he had been prescribed Motrin for pain relief and was not in need of
emergency care. Id. Mr. Minnifield became upset and returned to his housing unit. Id. at ¶ 5.
Nurse Chofay states that she did not deny Mr. Minnifield emergency treatment; rather, she
determined that his condition did not constitute an emergency that required immediate treatment
and instructed him to submit a sick call request. Id. at ¶ 6. Nurse Dolan insists that she has

26

never instructed Nurse Chofay to deny Mr. Minnifield or any other inmate emergency care. Id.
at ¶ 7; Dolan Aff. ¶ 5, Defs.’ Ex. M.
Mr. Minnifield has offered no evidence to contradict these affidavits. Thus, he has not
shown that either Nurse Chofay or Nursing Supervisor Dolan were deliberately indifferent to his
medical needs on July 17, 2014.
Mr. Minnifield has failed to submit evidence to demonstrate that Nursing Supervisor
Dolan was deliberately indifferent to his serious scalp condition at any time after his arrival at
MacDougall-Walker on June 5, 2014 through the filing of the Amended Complaint on March 24,
2015. Thus, Defendants’ motion for summary judgment is granted in favor of Defendant Dolan
as to the Eighth Amendment claim of deliberate indifference to medical needs.
IV.

Conclusion
The Defendants’ Motion for Summary Judgment [ECF No. 39] is GRANTED. The

Clerk of the Court is directed to enter judgment for Defendants and close this case.
SO ORDERED at Bridgeport, Connecticut this 30th day of March, 2017.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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