Taveras v. Semple et al
Filing
162
RULING. For the reasons stated in the attached Ruling, defendants' 148 Motion for Summary Judgment is GRANTED, in part, and DENIED, in part. Please see attached Ruling for important details and deadlines. It is so ordered. Signed by Judge Sarah A. L. Merriam on 1/5/2023. (Katz, S.)
Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 1 of 34
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------X
:
NOE TAVERAS
:
:
v.
:
:
SCOTT SEMPLE, BONA, NANCY B., :
GEBENO, and CASTRO
:
:
------------------------------X
Civil No. 3:15CV00531(SALM)
January 5, 2023
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. #148]
Plaintiff Noe Taveras (“plaintiff” or “Taveras”), a
sentenced inmate,1 brings this action relating to events
occurring during his incarceration in the custody of the
Connecticut Department of Correction (“DOC”) at Garner
Correctional Institution (“Garner”). Taveras originally filed
this action as a self-represented plaintiff. See Doc. #1. After
initial review, five defendants remain: former Commissioner,
then-Warden Scott Semple (“Semple”); Captain Bona, “CSW” Nancy
The Court may take judicial notice of matters of public record.
See, e.g., Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006); United States v. Rivera, 466 F. Supp. 3d 310, 313 (D.
Conn. 2020) (taking judicial notice of BOP inmate location
information); Ligon v. Doherty, 208 F. Supp. 2d 384, 386
(E.D.N.Y. 2002) (taking judicial notice of state prison website
inmate location information). The Court takes judicial notice of
the Connecticut DOC website, which reflects that plaintiff is a
sentenced inmate, currently held at Garner. See
http://www.ctinmateinfo.state.ct.us/detailsupv.asp?id_inmt_num=3
68953 (last visited Jan. 4, 2023).
1
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B., “chief of psychiatry” Dr. Gebeno, and “chief of medicine”
Dr. Castro (collectively, “defendants”). Doc. #7 at 1 (sic). 2
Defendants have filed a Motion for Summary Judgment. [Doc.
#148]. Plaintiff, through counsel, has filed an objection and
memorandum in opposition to defendants’ motion. See Docs. #154,
#155. For the reasons set forth below, defendants’ Motion for
Summary Judgment [Doc. #148] is GRANTED, in part, and DENIED, in
part.
I.
PROCEDURAL BACKGROUND
Plaintiff brought this action as a self-represented party
on April 10, 2015. See Doc. #1. On that same date, plaintiff
filed a motion for leave to proceed in forma pauperis, see Doc.
#2, which was granted. See Doc. #6. On April 22, 2015, Judge
Victor A. Bolden conducted an initial review of the Verified
Complaint. See Doc. #7. The Initial Review Order (“IRO”)
permitted an Eighth Amendment claim to proceed against
defendants Semple, Captain Bona, Dr. Gebeno, and CSW Bertulis
for deliberate indifference to plaintiff’s “serious medical need
for mental health treatment.” Id. at 4. The IRO also permitted
an Eighth Amendment deliberate indifference claim to proceed
against Dr. Castro for refusing “to prescribe [plaintiff] pain
Defendants identify “CSW Nancy B.” as “Bertulis[.]” Doc. #14810 at 1. The Court will hereinafter refer to this defendant as
“CSW Bertulis.”
2
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medication from emergency room doctors after numerous suicide
attempts by cutting.” Id. at 5 (citation and quotation marks
omitted).
On September 15, 2015, counsel for defendants filed an
appearance in this matter. See Doc. #19. Nearly one year later,
with no explanation for the delay, defendants filed an Answer to
the Verified Complaint on August 26, 2016. See Doc. #20.
Defendants assert, in relevant part, the following affirmative
defenses: (1) “The plaintiff’s complaint fails to state a claim
upon which relief can be granted[;]” and (2) “The plaintiff did
not fully exhaust his administrative remedies and therefore his
claims are barred by the Prison Litigation Reform Act.” Id. at
5.
For the next five years, plaintiff sought repeated
extensions of the scheduling order largely for the purpose of
completing discovery. See, e.g., Docs. #23, #39, #41, #49, #53,
#56, #62. During this time, plaintiff was appointed pro bono
counsel to assist in his discovery efforts. See Docs. #35, #36.
Plaintiff has been represented by pro bono counsel Attorney Toya
Graham since October 8, 2020, for trial purposes. See Docs. #99,
#102, #104.
On October 15, 2021, this matter was transferred to the
undersigned. See Doc. #114. Prior to the transfer, on October
12, 2021, Judge Bolden entered an Order requiring counsel to
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file a status report by November 5, 2021, addressing “whether it
will be feasible for discovery to close by January 14, 2022[,]
and for dispositive motions to be filed by February 18, 2022.”
Doc. #113 (emphases removed). The parties were also to “report
on whether they wish to be referred to a Magistrate Judge for a
settlement conference.” Id. On October 19, 2021, the undersigned
scheduled a telephonic status conference for November 10, 2021,
“to discuss the status of this case, including any information
set forth in the status report that is due on November 5, 2021.”
Doc. #115.
The parties failed to file the status report on November 5,
2021. As a result, on November 6, 2021, the undersigned issued
an Order to Show Cause “why sanctions should not issue for
[counsel’s] failure to file a joint status report in compliance
with Judge Bolden’s October 12, 2021, Order.” Doc. #116. On
November 8, 2021, counsel for defendant and counsel for
plaintiff filed separate responses to the Order to Show Cause,
along with a Joint Status Report. See Docs. #117, #118, #119.
Plaintiff’s counsel fell on the proverbial sword and claimed
that the failure to comply with Judge Bolden’s Order “was an
inadvertent error[.]” Doc. #117 at 1. Defense counsel similarly
represented that his failure to comply with the Order “was an
inadvertent oversight[.]” Doc. #119 at 2. Following discussions
with counsel during the November 10, 2021, telephonic status
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conference, the Court set a dispositive motions deadline of
January 28, 2022, with any responses to be filed by February 28,
2022. See Doc. #121.
Thereafter, the parties engaged in settlement efforts, and
received two extensions of the dispositive motions deadline, one
of which the Court issued sua sponte. See Docs. #131, #134. On
March 8, 2022, defendants requested to extend the dispositive
motions deadline by forty-seven days to accommodate a follow-up
settlement conference scheduled for April 25, 2022. See Doc.
#142 at 1. On March 9, 2022, the Court granted that motion “to
permit the parties to continue settlement discussions[,]” and
reset the dispositive motions deadline to May 16, 2022. Doc.
#143.
On May 16, 2022, nearly seven years after this case was
filed, defendants filed the motion for summary judgment now at
issue. See Doc. #148. The motion asserts only two grounds for
summary judgment, each of which could have been raised at a much
earlier stage of this litigation. First, defendants assert that
plaintiff failed to plead the correct date of the incident at
the heart of this litigation. See id. at 1. Second, defendants
assert that plaintiff failed to exhaust his administrative
remedies. See id. at 2. Had defendants confronted these issues
at an earlier stage of the litigation, significant resources of
the Court, and of the private attorneys who have represented
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plaintiff on a pro bono basis, could have been spared.
Defendants’ failure to substantively raise these defenses, which
would have required not more than a de minimis inquiry by
defendants, is of great concern. It suggests to the Court that
defendants either failed to make appropriate inquiries at the
outset of this litigation, or were intentionally delaying
disclosure of the pleading error in an effort to defeat
plaintiff’s claims on this non-substantive basis. Either
scenario is unacceptable. Nevertheless, the Court turns to the
merits of defendants’ motion.
II.
SUMMARY JUDGMENT STANDARD
The standards governing summary judgment are wellsettled. Summary judgment is appropriate only “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits ...
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c)[.]
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir.
2002). Summary judgment is proper if, after discovery, the
nonmoving party “has failed to make a sufficient showing on an
essential element of [his] case with respect to which [he] has
the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (alterations added).
“The party seeking summary judgment has the burden to
demonstrate that no genuine issue of material fact exists.”
Marvel Characters, 310 F.3d at 286. “In moving for summary
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judgment against a party who will bear the ultimate burden of
proof at trial, the movant’s burden will be satisfied if he can
point to an absence of evidence to support an essential element
of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth
Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
In deciding a motion for summary judgment, the Court “must
construe the facts in the light most favorable to the non-moving
party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008) (citation and quotation marks
omitted). “If there is any evidence in the record that could
reasonably support a jury’s verdict for the non-moving party,
summary judgment must be denied.” Am. Home Assurance Co. v.
Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir.
2006) (citation and quotation marks omitted).
III. FACTUAL BACKGROUND
The following facts are derived from the parties’
submissions pursuant to Local Rule 56(a) and the affidavits,
declarations, and exhibits attached thereto.
A.
The Cutting Incident
Plaintiff is a sentenced inmate who, from June 26, 2012,
through May 20, 2016, was housed at Garner. See Doc. #156 at 1,
¶¶1, 3. On April 10, 2015, plaintiff initiated this matter by
filing a Verified Complaint. See id. at 1, ¶4; see also Doc. #1.
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The Verified Complaint alleges that on October 22, 2013,
plaintiff “cut open his arm during a mental health crisis[.]”
Doc. #156 at 1, ¶5; see also Doc. #1 at 7, ¶1.
Plaintiff’s “DOC Medical/Mental Health clinical record has
no entries on October 22, 2013, that involved an act of selfharm.” Doc. #156 at 3, ¶11. The only entry from this date stated
that plaintiff was doing “better” and “appeared to be in much
better spirits and presented as more relaxed and stable.” Doc.
#156 at 3, ¶12 (citation and quotation marks omitted); see also
Doc. #146 at 8.
An Incident Report dated October 3, 2013, however, reveals
that an incident on that date “involved an act of self-harm by
[plaintiff] cutting open his arm.” Doc. #156 at 2, ¶10. Early in
the morning on October 3, 2013, plaintiff “was moved out of his
cell by custody staff after he lacerated his left forearm.” Id.
at 3, ¶14. Plaintiff received medical treatment for a “gaping
laceration” caused by plaintiff using a “nail clipper” to cut
“his left inner arm.” Id. at 3, ¶15; see also Doc. #146 at 3.
Plaintiff told “medical staff that he had been so stressed out
he just wanted to cut” and that he had done so with a nail
clipper. Doc. #156 at 3-4, ¶16 (citation and quotation marks
omitted); see also Doc. #146 at 2.
Later in the morning on October 3, 2013, plaintiff “was
seen for a clinical assessment and medication review in a
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therapeutic cubical, because” plaintiff had reopened a wound
left from a previous cutting incident. Doc. #156 at 4, ¶17
(sic); see also Doc. #146 at 4. Plaintiff was then “moved to a
Mental Health Behavior Observation cell and provided with a
safety gown, safety blanket, and a bag meal.” Doc. #156 at 4,
¶18; see also Doc. #146 at 5. “[S]ubsequent ... Incident Reports
on October 4, 2013 through to October 6, 2013, involved
continued incidents with [plaintiff] that originated from the
October 3, 2013[,] self-injury incident.” Doc. #156 at 2-3, ¶10.
B.
DOC Administrative Remedy Procedure
Two different administrative remedy procedures available to
DOC inmates are potentially at issue in this matter. Defendants,
however, address only the procedures available under
Administrative Directive (“A.D.”) 9.6. See generally Doc. #1485, Doc. #148-6, Doc. #148-10. Defendants Semple and Captain Bona
are non-medical personnel (Semple and Captain Bona are
hereinafter sometimes referred to as the “custodial
defendants”); therefore, the claims against them require
exhaustion pursuant to A.D. 9.6. See Cruz v. Naqvi, No.
3:21CV00008(SALM), 2022 WL 4225491, at *4 (D. Conn. Sept. 13,
2022).
Defendants CSW Bertulis, Dr. Gebeno, and Dr. Castro are,
however, medical personnel (hereinafter sometimes referred to as
the “medical defendants”). The claims against them for
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deliberate indifference to serious medical needs require
exhaustion pursuant to A.D. 8.9. See id.; see also Garcia v.
Univ. of Conn. Health Care Ctr., No. 3:16CV00852(JCH), 2018 WL
5830840, at *7 (D. Conn. Nov. 7, 2018) (treating claims against
CSW Bertulis as requiring exhaustion pursuant to A.D. 8.9). The
Court reviews both provisions below.
1. Administrative Directive 9.6
Inmates incarcerated at Connecticut DOC facilities have
access to the Inmate Administrative Remedies process outlined in
Administrative Directive 9.6 (“A.D. 9.6”). See generally Doc.
#148-5.3
A.D. 9.6 provides “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.”
Id. at 2. Plaintiff does not dispute that A.D. 9.6 was in effect
at the time of the incidents underlying his Verified Complaint,
A.D. 9.6 was revised on April 30, 2021. See State of
Connecticut Department of Correction, Administrative Directive
9.6: Inmate Administrative Remedies, 3-4 (April 30, 2021),
https://portal.ct.gov//media/DOC/Pdf/Ad/AD9/AD_0906_Effective_04302021.pdf.
Plaintiff’s Verified Complaint concerns events that occurred in
or around October 2013. See generally Doc. #1. Accordingly, all
references to A.D. 9.6 in this Ruling refer to the version that
was in effect from August 15, 2013, through April 29, 2021,
which defendants have attached as Exhibit 5 to their motion. See
Doc. #148-5.
3
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nor that he was required to exhaust his administrative remedies
pursuant to A.D. 9.6.
The type of remedies available to an inmate depends on
the nature of the issue or condition experienced by the
inmate or the decision made by correctional personnel.
For all matters relating to any aspect of a prisoner’s
confinement that are subject to the Commissioner’s
authority and that are not specifically identified in
subsections (B) through (I) of Administrative Directive
9.6(4), the applicable remedy is the Inmate Grievance
Procedure set forth in 9.6(6).
Gulley v. Bujnicki, No. 3:19CV00903(SRU), 2019 WL 2603536, at *3
(D. Conn. June 25, 2019). Because plaintiff’s claims against the
custodial defendants do not relate to any of the specifically
identified matters in subsections (B) through (I) of A.D.
9.6(4), his claims are subject to the Inmate Grievance Procedure
set forth in section 6 of A.D. 9.6. See Doc. #148-5 at 6-10. The
Inmate Grievance Procedure entails several steps.
“An inmate must attempt to seek informal resolution prior
to filing an inmate grievance.” Id. at 6. An inmate may attempt
informal resolution “verbally with the appropriate staff member
or with a supervisor/manager. If the verbal option does not
resolve the issue, the inmate shall submit a written request via
CN 9601, Inmate Request Form.” Id.
“An inmate may file a grievance if the inmate is not
satisfied with the informal resolution offered.” Id. at 7. “The
grievance must be filed within 30 calendar days of the
occurrence or discovery of the cause of the grievance.” Id. This
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grievance must be submitted on a “CN 9602, Inmate Administrative
Remedy Form[,]” and the inmate must “attach CN 9601, Inmate
Request Form, containing the appropriate staff member’s
response[.]” Id. “If the inmate was unable to obtain a blank CN
9601, Inmate Request Form, or did not receive a timely response
to the inmate request, or for a similar valid reason, the inmate
shall include an explanation indicating why CN 9601, Inmate
Request Form, is not attached.” Id. The inmate must submit the
CN 9602 by depositing it “in the Administrative Remedies box.”
Id. This is commonly known as a “Level 1” grievance. Id. at 8.
A.D. 9.6 provides that each Level 1 grievance “shall be
reviewed for compliance with the Inmate Grievance Procedure and
investigated if the grievance is accepted.” Id. DOC staff must
respond “in writing within 30 business days of receipt[.]” Id.
An inmate’s grievance may be “Rejected, Denied, Compromised,
Upheld or Withdrawn.” Id. at 7.
“An inmate may appeal a Level 1 disposition to Level 2
within five (5) calendar days of receipt of the decision[,]” or
“[i]f a response to a Level 1 grievance is not received within
30 business days[.]” Id. at 8. “A grievance appeal filed by an
inmate confined in a Connecticut correctional facility shall be
decided by the appropriate District Administrator.” Id. Level 2
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is “the final level of appeal for all grievances except as
provided in Section 6(L)” of A.D. 9.6. Id. 4
The DOC maintains “[a] grievance file ... at each level for
each grievance[,]” which “include[s] a copy of the grievance,
each response, and any supporting documents submitted in support
of the grievance, presented during investigation, or relied upon
in the decision.” Id. at 9. Additionally, the DOC maintains a
“Grievance Log,” form CN 9608, which “include[s] the name and
number of the grievant, the dates of initial receipt and of the
response at that level, a brief description of the problem and
the disposition.” Id. at 10.
2. Administrative Directive 8.9
Inmates incarcerated at Connecticut DOC facilities also
have access to the Health Services Review (“HSR”) policy
outlined in Administrative Directive 8.9 (“A.D. 8.9”). See Doc.
#155-4 at 2-6.5
In limited circumstances, an inmate may appeal a Level 2
disposition to Level 3. See Doc. #148-5 at 8. Level 3 review is
available only if the grievance: “1. challenges Department level
policy; 2. challenges the integrity of the grievance procedure;
or, 3. Exceeds the established 30 business day time limit for a
Level 2 grievance response.” Id. (sic). None of these
circumstances is applicable here.
4
A.D. 8.9 was revised on April 30, 2021. See State of
Connecticut Department of Correction, Administrative Directive
8.9: Health Services Administrative Remedies, 6-9 (April 30,
2021), https://portal.ct.gov/-/media/DOC/Pdf/Ad/ad0809pdf.pdf.
Plaintiff’s Verified Complaint concerns events that occurred in
or around October 2013. See generally Doc. #1. Accordingly, all
5
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A.D. 8.9 establishes an “administrative remedy for all
health services to enable an inmate to seek formal review of any
health care provision, practice, diagnosis or treatment.” Id. at
2.
There are two types of Health Services Review:
A. Diagnosis and Treatment. A review of a diagnosis or
treatment including a decision to provide no
treatment, relating to an individual inmate.
B. Review of an Administrative Issue. A review of a
practice, procedure, administrative provision or
policy, or an allegation of improper conduct by a
health services provider[.]
Id. at 4. Plaintiff here complains that the medical defendants
failed to provide mental health treatment or pain medication;
his claims therefore fall under “Diagnosis and Treatment.” Id.;
see also Doc. #7 at 4-5 (IRO construing claims asserted against
medical defendants).
An “inmate must attempt to seek an informal resolution
prior to filing for a Health Services Review.” Doc. #155-4 at 4.
An inmate must attempt informal resolution “face to face with
the appropriate staff member or with a supervisor via written
request utilizing CN 9601 Inmate Request Form.” Id. Prison staff
are required to respond to informal resolution requests “within
15 calendar days from receipt of the written request.” Id.
references to
was in effect
plaintiff has
opposition to
A.D. 8.9 in this Ruling refer to the version that
from July 24, 2012, through April 29, 2021, which
docketed as Exhibit 4 to his memorandum in
the motion for summary judgment. See Doc. #155-4.
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“[I]f informal resolution via inmate request was
unsuccessful[,]” an inmate seeking review of a diagnosis or
treatment “may apply for a Health Services Review” by submitting
a “CN 9602 Inmate Administrative Remedy form[.]” Id. On that
form, the “inmate shall check the ‘Diagnosis/Treatment’ box and
explain concisely the cause of his/her dissatisfaction, and
deposit the completed form in the Health Services
Remedies/Review box.” Id.
The HSR Coordinator maintains “[a] log of each Health
Services Review request and appeal[.]” Id. at 5. The HSR
Coordinator also maintains “[a] file of each Health Services
Review request and appeal ..., containing copies of the forms
that have been used in the review or appeal.” Id. For any inmate
that “has applied for a Review of a Diagnosis or Treatment[,]”
the “health record” of that inmate must “contain a copy of the
forms used in the Review, notations in the clinical record
including a notation of ‘HSR Administrative Remedy’
appointment.” Id.
C.
Plaintiff’s Administrative Remedy History
Correctional Counselor Cody Kingsley (“CC Kingsley”) is the
“Administrative Remedies Coordinator” at Garner. Doc. #156 at 6,
¶27. CC Kingsley “is the Keeper of Records of inmate
administrative remedies, grievances and appeals[.]” Id. at 6,
¶28. CC Kingsley also maintains Garner’s “Grievance Log.” Id. At
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the request of defense counsel, CC Kingsley searched Garner’s
“Grievance Log and files from October 1, 2013 to January 1,
2014, to locate all informal resolutions and grievances filed by
[plaintiff] while he was confined at Garner ... and specifically
for the alleged October 22, 2013, incident(s) at that facility.”
Id. at 6, ¶31 (sic). “CC Kingsley did not find any informal
resolutions or inmate grievances filed by [plaintiff] for the
October 22, 2013[,] incident(s), or any other incidents up to
January 1, 2014.” Id. at 7, ¶33. 6 Other grievances located by CC
Kingsley in his search did not relate to the October 2013
incident. See id. at 7, ¶¶34-35. 7
Plaintiff attaches to his opposition an Inmate
Administrative Remedy Form dated February 1, 2015. See Doc.
Plaintiff objects to this statement because he “does not have
any independent information regarding [CC Kingsley’s] search of
the records.” Doc. #156 at 7, ¶33. Generally, a responsive
statement of material facts that contains “argument, legal
conclusions, personal belief, and speculation is ...
inappropriate.” Martin v. Town of Simsbury, 505 F. Supp. 3d 116,
125 (D. Conn. 2020). This denial “does not comply with Local
Rule 56(a)(3), [and] the Court will deem [it] admitted” because
it is “supported by the evidence in accordance with Local Rule
56(a)(1) for the purposes of resolving this motion.” Id.
(citation and quotation marks omitted).
6
For the reasons stated in footnote 6, supra, the Court deems
paragraph 35 admitted because plaintiff’s denial does not comply
with Local Rule 56(a)(3), and paragraph 35 is supported by the
evidence, in accordance with Local Rule 56(a)(1).
7
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#155-2 at 2.8 In Section 1, plaintiff checked that he was
“requesting a Health Services Review.” Id. In Section 4,
plaintiff wrote:
I am submitting this grievance concerning the lack of
mental health treatment and concerning me being punished
for attempting to take my life by comitting suicide on
10-3-13 at or around 2:59AM as a Result of the lack of
mental health care as I was experiencing a mental health
crisis it resulted in me attempting to slice my left
wrist open[.]
Id. at 3 (sic). The authenticity of this document is disputed.
See Doc. #156 at 9-10, ¶¶43-45.
Plaintiff asserts in a declaration dated June 24, 2022,
that “in October 2013, I tried to informally resolve my mental
health treatment issues[,]” and “[w]hen I did not receive a
response to my informal request, I submitted a written request
in the collection box.” Doc. #155-1 at 3, ¶¶12-13. Plaintiff
states that he “did not receive a response to” his “informal
request,” so he “filed a grievance” to which he also did not
receive a response. Id. at 3, ¶¶13-16. Plaintiff states that he
“completed the administrative steps to resolve my medical and
mental health treatment issues by filing a request and then a
grievance. I followed the procedures to exhaust my
administrative remedies.” Id. at 3, ¶¶17-18.
Attached to this form is an Inmate Request Form, CN 9601, dated
January 4, 2015. See Doc. #155-2 at 4.
8
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IV.
DISCUSSION
Defendants move for summary judgment on two grounds. First,
defendants assert that plaintiff’s “claims fail to state a claim
upon which relief can be granted, because the alleged October
22, 2013, date of the incident is incorrect.” Doc. #148 at 1.
Second, defendants assert that plaintiff has failed to exhaust
his administrative remedies. See id. at 2. The Court first
addresses the question of whether plaintiff has exhausted his
administrative remedies.
A.
Exhaustion of Administrative Remedies
1. Applicable Law
The Prisoner Litigation Reform Act (“PLRA”) provides: “No
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). “[T]he PLRA’s exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002).
“The Supreme Court has held that ‘the PLRA exhaustion
requirement requires proper exhaustion.’ That is, ‘prisoners
must complete the administrative review process in accordance
with the applicable procedural rules -- rules that are defined
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not by the PLRA, but by the prison grievance process itself.’”
Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (quoting
Woodford v. Ngo, 548 U.S. 81, 93 (2006); and then quoting Jones
v. Bock, 549 U.S. 199, 218 (2007)). “The PLRA’s exhaustion
requirement is designed to afford corrections officials time and
opportunity to address complaints internally before allowing the
initiation of a federal case.” Johnson v. Testman, 380 F.3d 691,
697 (2d Cir. 2004) (citation and quotation marks omitted).
“Proper exhaustion demands compliance with an agency’s deadlines
and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly
structure on the course of its proceedings.” Woodford, 548 U.S.
at 90–91 (footnote omitted); see also Williams v. Comstock, 425
F.3d 175, 177 (2d Cir. 2005) (“[T]he failure to timely file the
grievance in accordance with IGP rules amounted to a failure to
exhaust administrative remedies in this case.”).
Exhaustion of administrative remedies is an affirmative
defense. See Jones, 549 U.S. at 216. “[D]efendants bear the
burden of proving that the plaintiff did not exhaust his
administrative remedies[.]” Guarneri v. West, 782 F. Supp. 2d
51, 59 (W.D.N.Y. 2011) (citation and quotation marks
omitted), aff’d, 495 F. App’x 142 (2d Cir. 2012).
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2. A.D. 8.9
Defendants do not address the applicability of A.D. 8.9 to
plaintiff’s claims against the medical defendants. Defendants’
exhaustion argument is limited to the claim that A.D. 9.6 “sets
forth the required processes an inmate must follow to complain
about any aspect of the inmate’s confinement and/or health
services, prior to filing legal action alleging that the grieved
condition(s) and staff person(s) violated their constitutional
rights.” Doc. #148-11 at 4, ¶20. Inexplicably, despite the law
distinguishing the applicability of A.D. 8.9 and A.D. 9.6, and
defense counsel’s expertise in this area, defendants conflate
the exhaustion requirements under A.D. 8.9 and A.D. 9.6.
Although plaintiff agrees with defendants’ statement on the
applicability of A.D. 9.6, see Doc. #156 at 4, ¶20, he has
attached a copy of A.D. 8.9 to his opposition, see Doc. #155-4.
Regardless, as to plaintiff’s claims against the medical
defendants alleging failure to provide mental health treatment,
plaintiff was required to exhaust the administrative remedies
available to him under A.D. 8.9; as to plaintiff’s claims
against defendants Semple and Bona, he was required to exhaust
the administrative remedies available to him under A.D. 9.6. See
Carter v. Revine, No. 3:14CV01553(VLB), 2017 WL 2111594, at *14
(D. Conn. May 15, 2017) (“Directive 8.9 applies to [plaintiff’s]
claims against medical staff. Directive 8.9 provides formal
20
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review of any health care provision, practice, diagnosis or
treatment, whereas Directive 9.6 more generally applies to any
aspect of an inmate’s confinement that is subject to the
Commissioner’s authority[.]” (citations and quotation marks
omitted)); Urbanski v. Dep’t of Corr., No. 3:18CV01323(VLB),
2019 WL 6683047, at *2-3 (D. Conn. Dec. 5, 2019) (distinguishing
between A.D. 8.9 and A.D. 9.6).
The evidence of record establishes that CC Kingsley
searched the Garner grievance log, and that no grievances were
located related to the subject incident for the time period of
October 1, 2013, through January 1, 2014. See Doc. #156 at 6-7,
¶¶31-33. Pursuant to A.D. 8.9, there is a HSR coordinator who
maintains “[a] log of each Health Services Review request and
appeal[.]” Doc. #155-4 at 5. Defendants present no evidence,
however, that a search of the Garner Health Services Review log
was undertaken.9
Defendants contend that plaintiff’s January 4, 2015, Inmate
Administrative Request and February 1, 2015, Inmate Remedy Forms
“are a recent fabrication designed to defeat the defendant’s
failure to exhaust claim[]” because “there is no record of the
February 1, 2015, grievance in the Garner ... Grievance Logs.”
Doc. #148-10 at 12 (sic). Notably, on the February 1, 2015,
Inmate Administrative Remedy Form, plaintiff checked that he was
“requesting a Health Services Review[,]” and not that he was
“filing a Grievance.” Doc. #155-2 at 2 (sic). Indeed, plaintiff
specifically alleges in the Complaint that he “filed a Health
Service Review[.]” Doc. #1 at 7, ¶7. It is therefore not
surprising that this Health Services Review form was not located
in Kingsley’s search of Garner’s grievance log.
9
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“If the evidence submitted in support of the summary
judgment motion does not meet the movant’s burden of production,
then summary judgment must be denied even if no opposing
evidentiary matter is presented.” Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation and
quotation marks omitted) (emphases omitted). Here, as to the
medical defendants, defendants have failed to meet their burden
of demonstrating “that there is no genuine issue of material
fact and [their] entitlement to judgment as a matter of law[]”
on the issue of exhaustion, because there is no evidence
relating to the contents of Garner’s Health Services Review Log.
Id.; cf. Durham v. Hanna, No. 3:19CV00190(KAD), 2020 WL 4586688,
at *6 (D. Conn. Aug. 10, 2020) (The defendants “met their
initial burden of establishing that Durham failed to exhaust his
administrative remedies [pursuant to A.D. 8.9] and they are
entitled to judgment as a matter of law[,]” where “RN Sullivan
averred that she did not locate any Health Services Reviews or
‘medical grievances’” for the relevant time period.).
Accordingly, defendants’ motion for summary judgment on
this issue of exhaustion as to the medical defendants is DENIED.
3. A.D. 9.6
There is no dispute that plaintiff was required to exhaust
his administrative remedies pursuant to A.D. 9.6 with respect to
his claims against the custodial defendants, Semple and Captain
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Bona. See Doc. #156 at 4-5, ¶¶20-21. Plaintiff presents no
evidence that he exhausted these claims in accordance with A.D.
9.6. To the contrary, plaintiff’s evidence supports an inference
that he attempted to comply with A.D. 8.9. See, e.g., Doc. #1551 at 3, ¶17 (“I completed the administrative steps to resolve my
medical and mental health treatment issues[.]”); Doc. #155-2
(request for Health Services Review dated February 1, 2015);
Doc. #1 at 7, ¶7 (Verified Complaint alleging that plaintiff
“filed a Health Service Review”).
Defendants have provided evidence that plaintiff did not
exhaust his remedies pursuant to A.D. 9.6. Relevant to this
issue, defendants assert the following material facts:
31. At the request of the Office of the Attorney General,
as the Administrative Remedies Coordinator at GCI, CC.
Kingsley searched the GCI Grievance Log, and files, from
October 1, 2013, to January 1, 2014, to locate all
informal resolutions and grievances filed by Mr. Taveras
while he was confined at Garner C.I., and specifically
for the alleged October 22, 2013, incident(s) at that
facility. Exhibit 6, ¶15.
...
33. Upon his review of those records, CC. Kingsley did
not find any informal resolutions or inmate grievances
filed by Mr. Taveras for the October 22, 2013,
incident(s), or any other incidents up to January 1,
2014. Exhibit 6, ¶16.
34.
He then continued his review of the Garner C.I.
Grievance Log until he located a grievance that Taveras
filed, which was a Level One Grievance he filed on April
10, 2014, but it did not involve the October 22, 2013,
incident(s), and it was denied by a unit manager on April
29, 2014. Exhibit 6, ¶17; Exhibit 7.
23
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35. The next entry CC. Kingsley located that Mr. Taveras
filed was dated June 14, 2014, and it was rejected. With
further searching, CC. Kingsley located two more
entries, both of which were filed in 2016. Exhibit 6,
¶18; Exhibit 7.
Doc. #148-11 at 6, ¶¶31, 33-35 (footnote omitted). 10 These facts
are based on CC Kingsley’s sworn declaration. See Doc. #148-6.
Accordingly, defendants Semple and Captain Bona have provided
undisputed evidence establishing that plaintiff failed to
exhaust his administrative remedies pursuant to A.D. 9.6.
The Court’s inquiry, however, does not end there. With no
citation to any authority, plaintiff appears to assert that his
failure to comply with A.D. 9.6 should be excused because
defendants’ failure to respond to his alleged informal request
and grievance “renders the system unavailable.” Doc. #155 at 5.
Prisoners
need
not
comply
with
the
exhaustion
requirement[] ... when administrative remedies are
unavailable. An administrative procedure will be treated
as unavailable for purposes of this exemption in at least
three circumstances: (1) when it operates as a simple
dead end — with officers unable or consistently
unwilling to provide any relief to aggrieved inmates;
(2) when it is so opaque that it becomes, practically
speaking, incapable of use; or (3) when prison
administrators thwart inmates from taking advantage of
a
grievance
process
through
machination,
misrepresentation, or intimidation.
Paragraphs 31 and 34 are admitted. See Doc. #156 at 6-7. For
reasons previously stated, paragraphs 33 and 35 have been deemed
admitted. See notes 6-7, supra.
10
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Taylor v. New York City Dep’t of Corr., 849 F. App’x 5, 8 (2d
Cir. 2021) (citations and quotation marks omitted). The Second
Circuit has held that “administrative remedies were either
exhausted or ‘unavailable’ when” state prison officials did not
respond to a properly submitted grievance or appeal within the
time provided by their own “mandatory deadlines[.]” Hayes v.
Dahlke, 976 F.3d 259, 270–71 (2d Cir. 2020).
“The prison officials’ failure to respond to” plaintiff’s
purported informal request and grievance “did not render the ...
administrative procedure unavailable[]” in this case, however,
because A.D. 9.6 “contemplates that prison officials might not
always respond to inmates’ grievances. It sets forth the
procedure to follow in such circumstances.” Taylor, 849 F. App’x
at 8. For example, although the inmate grievance procedure
provides that a response to CN 9601, the Inmate Request Form
“shall be made within 15 business days from receipt of the
written request[,]” Doc. #148-5 at 6, the procedure explicitly
contemplates that a response may not be received:
An inmate may file a grievance if the inmate is not
satisfied with the informal resolution offered. The
inmate shall attach CN 9601, Inmate Request Form,
containing the appropriate staff member’s response, to
the CN 9602, Inmate Administrative Remedy Form. If the
inmate was unable to obtain a blank CN 9601, Inmate
Remedy Form, or did not receive a timely response to the
inmate request, or for a similar valid reason, the inmate
shall include an explanation indicating why CN 9601,
Inmate Request Form is not attached.
25
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Id. at 7 (emphases added).
Similarly, A.D. 9.6 provides that DOC staff must respond to
a Level 1 grievance “in writing within 30 business days of
receipt[.]” Id. at 8. However, A.D. 9.6 again explicitly
contemplates that a response to the Level 1 grievance may not be
received: “If a response to a Level 1 grievance is not received
within 30 business days, an inmate may appeal to Level 2.” Id.
“The administrative exhaustion process is not unavailable for
purposes of the PLRA when an inmate simply chooses not to avail
himself of it.” Taylor, 849 F. App’x at 8. Accordingly, the
administrative remedies under A.D. 9.6 were not unavailable to
plaintiff merely “because prison officials did not respond to
his” informal request and grievance. Id.
The record establishes that plaintiff “failed to properly
exhaust the administrative remedies available to him before
filing suit in federal court[]” as to any of his claims against
the custodial defendants. Wilson v. McKenna, 661 F. App’x 750,
753 (2d Cir. 2016). The PLRA requires exhaustion. Failure to
exhaust available administrative remedies entitles defendants
Semple and Captain Bona to summary judgment. See McKinney v.
Prack, 170 F. Supp. 3d 510, 518 (W.D.N.Y. 2016) (granting
summary judgment in favor of defendants on plaintiff’s 42 U.S.C.
§1983 claims where plaintiff failed to exhaust his
administrative remedies under the PLRA). Accordingly, defendants
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Semple and Captain Bona’s motion for summary judgment on the
grounds of exhaustion is GRANTED.
B. Failure to State a Claim
Defendants contend that “plaintiff cannot demonstrate a
constitutional violation occurred on October 22, 2013, as he
alleged in his Verified Complaint, because no incident involving
him, and the defendants, occurred on that date.” Doc. #148-10 at
5.11 Thus, defendants assert that “[b]y inaccurately pleading the
date of the incident, the plaintiff’s allegations against each
of the defendants are also inaccurate, as none of the defendants
did what he alleged they did, or didn’t do on October 22,
2013[.]” Id. at 6.12 Plaintiff asserts that defendants have
“conceded that a cutting incident” occurred on October 3, 2013,
and “[t]he alleged error in the date of the incident does not
change the basis of the constitutional violations.” Doc. #155 at
3-4.
Because the exhaustion defense is dispositive of the claims
against defendants Semple and Captain Bona, the Court considers
this argument only as to the medical defendants.
11
Defendants assert that “none of the named defendants were
involved in the October 3, 2013, incident.” Doc. #148 at 2.
Attached to plaintiff’s opposition, however, is a Mental Health
Disciplinary Review Form, CN 9510, dated October 3, 2013, that
is signed by CSW Bertulis. See Doc. #155-3 at 26. There is also
an Incident Report Routing Sheet regarding the October 3, 2013,
incident that references Captain Bona and directives for him to
“discuss” and “follow-up” on certain matters. Id. at 28. The
Court notes this only to highlight the apparent inaccuracy of
defendants’ representation.
12
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“It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional deprivations
is a prerequisite to an award of damages under §1983[.]” Komondy
v. Gioco, 253 F. Supp. 3d 430, 456 (D. Conn. 2017) (citation and
quotation marks omitted). Thus, “a plaintiff must plead that
each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009).
The undisputed material facts establish that at the request
of defense counsel, Janette Santiago, a DOC Litigation and
Freedom of Information liaison, conducted a “search of the
record database at Garner ... to locate the Incident Report ...
involving [plaintiff’s] October 22, 2013, allegation in his
Verified Complaint, but she did not find one.” Doc. #156 at 2,
¶7. Upon broadening her search for the entire month of October
2013, Ms. Santiago “located four Incident Reports, dated
consecutively from October 3, 2013 to October 6, 2013.” Id. at
2, ¶9 (sic). Among those four reports was one dated October 3,
2013, that “involved an act of self-harm by [plaintiff] cutting
open his arm.” Id. at 2, ¶10. Three subsequent Incident Reports
dated October 4, 2013, through October 6, 2013, involved
incidents stemming from plaintiff’s October 3, 2013, cutting
incident. See id. at 2-3, ¶10. In sum, plaintiff’s “DOC
Medical/Mental Health clinical record has no entries on October
28
Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 29 of 34
22, 2013, that involved an act of self-harm.” Id. at 3, ¶11.
These facts are based on Ms. Santiago’s sworn declaration. See
Doc. #148-3.
The Court begins with the claim against Dr. Castro. The
Verified Complaint alleges: “After numerous suicide attempts by
cutting, the Medical Doctor, Mr. Castro refused to give me
prescribe medication for pain from emergency room doctors.” Doc.
#1 at 7, ¶7 (sic). These allegations, which the IRO permitted to
proceed, are not tied to a specific date. See Doc. #7 at 5-6
(IRO). Indeed, the Verified Complaint explicitly alleges: “I cut
open my arm many different times and had to go to the outside
hospital many times also.” Doc. #1 at 7, ¶8. Thus, the fact that
plaintiff pled the wrong date of his October 2013 cutting is not
dispositive of Dr. Castro’s personal involvement in the alleged
constitutional violation. Accordingly, the motion for summary
judgment as to Dr. Castro is DENIED.
Similarly, the pleading error is not dispositive of Dr.
Gebeno and CSW Bertulis’s personal involvement in the alleged
constitutional violation. The Verified Complaint alleges:
“Doctor Gebeno and CSW Nancy B. pushed aside my right to
treatment and stated my actions regarding my suicide attempts by
cutting was behavioral and that I belonged in (R.H.U.) and at no
time was there talk of intervention or treatment.” Id. at 7, ¶5
(sic). Indeed, plaintiff alleges that as a result of the October
29
Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 30 of 34
2013 incident “and many others like it I was placed in the
facility Restrictive Housing Unit (R.H.U.) and denied meaningful
Medical and Mental Health Treatment.” Id. at 7, ¶1 (sic). The
IRO construed these allegations as claiming that plaintiff “was
also seen by Dr. Gebeno and ‘CSW’ [Bertulis], who he alleges
determined that his suicide attempts were ‘behavioral’ and did
not require treatment. Though the Complaint does not
specifically allege that he conveyed his suicidal thoughts to
Dr. Gebeno and ‘CSW’ [Bertulis], he does allege that he met with
these professionals during the relevant time period and that
they failed to provide him with treatment.” Doc. #7 at 4
(quoting Doc. #1 at ¶5) (emphases added). Accordingly, like Dr.
Castro, plaintiff’s claims against Dr. Gebeno and CSW Bertulis
are not specifically tied to the October 22, 2013, date. Thus,
the incorrect date is not dispositive of the personal
involvement of Dr. Gebeno and CSW Bertulis. The motion for
summary judgment as to Gebeno and CSW Bertulis is therefore
DENIED.
Finally, defendants insist that plaintiff “is precluded
from curing [the pleading defect] with a motion to amend his
complaint with a new or ‘correct’ claim at this late stage of
the proceedings[.]” Doc. #148-10 at 8 (citing cases). Although
plaintiff does not explicitly seek to amend his Verified
Complaint to correct the identified pleading defect, he suggests
30
Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 31 of 34
that he should be allowed to do so because his “claim is
supported by the record and the defendants’ admission that the
cutting incident did occur in the Garner facility.” Doc. #155 at
4.
“The ability of a plaintiff to amend the complaint is
governed by Rules 15 and 16 of the Federal Rules of Civil
Procedure which, when read together, set forth three standards
for amending pleadings that depend on when the amendment is
sought.” Sacerdote v. N.Y. Univ., 9 F.4th 95, 115 (2d Cir.
2021), cert. denied, 142 S. Ct. 1112 (2022). As relevant here,
the Court applies the “liberal and permissive standard[]” of
Rule 15(a)(2) and will deny leave to amend only “upon a showing
of undue delay, bad faith, dilatory motive, or futility.” Id.
(quotation marks and footnote omitted); accord Alfonso v. FedEx
Ground Package Sys., Inc., No. 3:21CV01644(SVN), 2022 WL
4545888, at *5 (D. Conn. Sept. 29, 2022). 13 “The court should
freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2).
The Second Circuit “has permitted a party to amend a
complaint after discovery has been completed and defendants have
filed summary judgment motions, even when the basis for the
The more stringent “good cause” standard under Rule 16 is not
applicable because the Amended Scheduling Order did not set “a
date after which no amendment will be permitted.” Sacerdote, 9
F.4th at 115; see also Doc. #44 (Amended Scheduling Order).
13
31
Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 32 of 34
amendment existed at the time of the original complaint.” Miller
v. Selsky, 234 F.3d 1262 (2d Cir. 2000) (unpublished table
decision); accord Haddock v. Nationwide Fin. Servs. Inc., 514 F.
Supp. 2d 267, 271 (D. Conn. 2007). This is particularly so where
the proposed amendment does “not raise wholly new claims.”
Miller, 234 F.3d at 1262.
To the extent plaintiff seeks to amend the Verified
Complaint to correct the date of the cutting incident, the Court
will allow the amendment. This amendment would not add any new
claims to the Verified Complaint, but rather is a “mere[]
variation[] on the original theme” of the Verified Complaint
against the remaining medical defendants. Id. (citation and
quotation marks omitted). Although defendants argue that an
amendment should not be allowed at this late stage, defendants
bear at least some of the fault for this defect having been
raised at such a late stage of the proceedings. 14 Nevertheless,
defendants point to no “bad faith or dilatory motive on the part
The late assertion of this defense is of deep concern. To
provide an Answer to the Complaint and discovery responses, each
defendant would have been required to review the allegations of
the Complaint and make an appropriate inquiry. Had this been
done, the correct incident date would have been known to
defendants in 2015. Defendants take pains to assert that this
defense may be raised at any time and it is not their “burden to
identify pleading flaws in a plaintiff’s complaint.” Doc. #14810 at 5-6. It is unclear whether defendants did not make
appropriate inquiries at earlier stages of this case, or were
intentionally trying to ensnare the self-represented plaintiff
in his error.
14
32
Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 33 of 34
of [plaintiff], repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice ... by virtue of
allowance of the amendment, [or] futility of amendment[,]” that
would justify denying a request to amend for the limited purpose
of correcting the incident date. Haddock, 514 F. Supp. 2d at 270
(citations and quotation marks omitted). Indeed, “[d]elay alone
unaccompanied by such a declared reason[] ... does not usually
warrant denial of leave to amend.” Id. at 270 (citation and
quotation marks omitted). The Court will not, however, permit
plaintiff to amend the Verified Complaint to add any new
defendants or claims.
Thus, on or before February 6, 2023, plaintiff shall file
an Amended Complaint, which removes Semple and Bona as
defendants to reflect the granting of summary judgment in their
favor, and corrects the October 2013 incident date to October 3,
2013. No other amendments may be made.
V.
CONCLUSION
Accordingly, and for the reasons set forth herein,
defendants’ Motion for Summary Judgment [Doc. #148] is GRANTED,
in part, and DENIED, in part.
Judgment shall enter in favor of defendants Semple and
Bona.
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Case 3:15-cv-00531-SALM Document 162 Filed 01/05/23 Page 34 of 34
It is so ordered this 5th day of January, 2023, at
Bridgeport, Connecticut.
_____/s/___________________
HON. SARAH A. L. MERRIAM
UNITED STATES CIRCUIT JUDGE
Sitting by Designation
34
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