Shehan v. Erfe et al

Filing 65

ORDER. The defendants' 59 motion for summary judgment is GRANTED as to claims except the excessive force claim and assault and battery claims against defendants Norfleet, Ruggiero, Champion, and Conger regarding the application of in-cell res traints to the plaintiff. Within sixty days of this order, defendants Champion and Conger may file a motion for summary judgment as to the issue of their personal involvement, as described above. If they determine not to file such a motion, they sh all file a statement so indicating within forty-five days of the date of this order. The Court is unlikely to extend these deadlines.All remaining deadlines in the case are adjusted as follows. If Defendants Conger and Champion file a secon d motion for summary judgment, then the joint trial memorandum will be due within 45 days of the Court's ruling on that motion. If not, the joint trial memorandum will be due within 45 days of the filing by defense counsel of the statement indi cating that he does not intend to file another summary judgment motion.The Court will suspend these deadlines if the parties jointly indicate they wish to proceed to mediation with a magistrate judge. Should they wish to do so at this junctu re, the parties shall, within 21 days of this order, file a joint statement certifying that (1) the parties have conferred with each other (through counsel, in the case of the defendants), (2) the parties wish to proceed to mediation, (3) the parties are willing to participate in settlement efforts at such mediation in good faith, and (4) the parties and counsel believe that a mediation stands at least a reasonable chance of resolving the case without trial. The Court will then refer the case for mediation before the Honorable Magistrate Judge Martinez.Signed by Judge Michael P. Shea on 1/4/2017. (Connelly, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOE LEWIS SHEHAN,
Plaintiff,
v.
WARDEN ERFE, et al.,
Defendants.

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CASE NO. 3:15-cv-1315 (MPS)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff, Joe Lewis Shehan, commenced this civil rights action against correctional officers
at the Corrigan-Radgowski Correctional Center (“Corrigan”). He asserted claims of excessive force,
deliberate indifference, denial of due process, negligence, assault, and battery arising from his
confinement in restraints following an incident at Corrigan in November 2014. In earlier rulings, the
Court dismissed all except the following claims: (1) deliberate indifference claims against defendants
Norfleet, Ruggiero, and Clapper; (2) an excessive force claim against defendants Marten, Erfe,
Williams, Champion, Conger, Norfleet, and Ruggiero; and (3) state law claims for assault and battery
against defendants Norfleet and Ruggiero. The defendants have filed a motion for summary judgment
addressing the remaining claims. For the reasons that follow, the defendants’ motion is granted in part
and denied in part.
I.

Legal Standard
A motion for summary judgment may be granted only where there is no genuine dispute as to

any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R.
Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy his burden
“by showing—that is pointing out to the district court—that there is an absence of evidence to support

the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per
curiam) (internal quotation marks and citations omitted). Once the moving party meets this burden, the
nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009). To defeat the motion for summary judgment, the nonmoving
party must present such evidence as would allow a jury to find in his favor. Graham v. Long Island
R.R., 230 F.3d 34, 38 (2d Cir. 2000).
II.

Facts
The following facts are undisputed unless otherwise indicated.1
A.

The Plaintiff’s Familiarity with the Grievance System

The plaintiff was first admitted to the Connecticut Department of Correction (“DOC”) in 1988.
Over the next ten years, the plaintiff was discharged and readmitted to custody several times. He also
was transferred between Connecticut correctional facilities many times. On January 5, 2001, the
plaintiff was admitted to custody for his current term of incarceration and has since been transferred
between correctional facilities multiple times.

1

The facts are taken from the defendants’ Local Rule 56(a) Statement and the exhibits submitted by both parties.
Local Rule 56(a)(2) requires the party opposing summary judgment to submit a Local Rule 56(a)(2) Statement
containing separately numbered paragraphs corresponding to the Local Rule 56(a)(1) Statement and indicating
whether the opposing party admits or denies the facts set forth by the moving party. Each denial must cite an
affidavit or other admissible evidence. L. Civ. R. 56(a)(3). The plaintiff was informed of this requirement. (ECF
No. 59-19.) Although he filed a Local Rule 56(a)(2) Statement denying some of defendants’ statements and
admitting others, he provided no citations to support his denials. Thus, his statement is insufficient to oppose
defendants’ Local Rule 56(a)(1) Statement, and the defendants’ statements are generally deemed admitted. See D.
Conn. L. Civ. R. 56(a)(1) (“All material facts set forth in said statement will be deemed admitted unless
controverted by the statement required to be served by the opposing party in accordance with Rule 56(a)2.”).
Because the plaintiff is pro se, however, the Court will make a narrow exception to this ruling: The Court will not
deem admitted statements in the Local Rule 56(a)(1) Statement that are (1) denied by the plaintiff, (2) within the
plaintiff’s personal knowledge (i.e., such that his denial could be supported by competent testimony from him),
and (3) not supported by admissions in the Plaintiff’s deposition testimony.

2

During readmission and transfers, the plaintiff received inmate orientation. As part of the
orientation process, the plaintiff received booklets or pamphlets that explained the prison grievance
system. Upon transfer to the MacDougall-Walker Correctional Institution in 2006, the plaintiff received
an Inmate Handbook that contained a section explaining inmate grievance procedures. There is
evidence that the plaintiff had filed at least one inmate grievance before the incident underlying this
action, although the plaintiff disputes this and the Court will treat it as a disputed issue.2 See note 1,
supra.
B.

The November 12, 2014 Incident

On November 12, 2014, Correctional Officer Hamilton observed the plaintiff assaulting and
fighting with his cellmate in their cell at Corrigan. When Officer Hamilton called for assistance, the
plaintiff covered the cell window with toilet paper. Defendant Champion arrived at the cell with other
officers and ordered the plaintiff to uncover the window. The plaintiff refused and began to yell
profanities through the cell door. Defendant Champion could hear the two inmates whispering to each
other. Officer Hamilton reported that it appeared that the two inmates were staging the fight. Defendant
Conger attempted verbal intervention without success. Defendant Champion then ordered both inmates
to approach the cell door so that restraints could be applied. Both inmates refused to comply. Again,
Defendant Champion heard the inmates whispering to each other. Defendant Champion disbursed a
chemical agent under the cell door and tried to open the door to secure the inmates. She was
unsuccessful. A clinical social worker and a nurse also attempted verbal intervention. They were

2

In his deposition, the plaintiff initially testified that he recalled filing a grievance about a recreational situation at
Corrigan, but then that “I am not sure I did file a grievance on that.” (ECF No. 59-4 at 12-13.) The Defendant
also submitted what appears to be a grievance filed by the plaintiff on August 5, 2014, but there is no citation
showing whether the plaintiff acknowledged the authenticity of this document or that the August 5, 2014
grievance was indeed filed by him. (ECF No. 59-9.)

3

unsuccessful. “The inmates may have tampered with the locking mechanism on the door.” (ECF No.
59-2.)
Two cell extraction teams assembled and the plaintiff was again ordered to exit the cell. He was
warned that the chemical agent would again be deployed if he failed to comply with the order. Both
inmates refused to comply. Defendant Champion disbursed another burst of chemical agent under the
door. When this was unsuccessful, defendant Champion deployed a third burst of chemical agent. After
the third deployment, the inmates complied. They were secured and removed from the cell. The
plaintiff received disciplinary reports for assault, impeding an order, and hostage-taking. He also was
arrested by the Connecticut State Police on charges of assault, unlawful restraint, reckless
endangerment, and failure to submit to fingerprints.
After he was removed from the cell, the plaintiff was escorted to the medical unit where he was
decontaminated from the chemical agent. He also was given medical and mental health examinations
for medical approval before being placed in restrictive housing. The plaintiff refused to answer any
questions. As a result, he was not approved for placement in restrictive housing. The plaintiff was
confined in cell 113 in the medical unit to mitigate any possible self-harm.
C.

Plaintiff’s Confinement in In-Cell Restraints

In the medical unit, the plaintiff was required to participate in the routine strip search protocol
under Administrative Directive 6.7. This directive requires an inmate to undergo a strip search before
the inmate is placed in restrictive housing or if the inmate has been involved in a significant incident.
See Defs’ Ex. E, Doc. 59-7, Directive 6.7, Section 7(A)(6) and (7). The plaintiff had participated in a
significant incident and was slated for confinement in restrictive housing, so the strip search was
required.

4

The plaintiff refused to bend at the waist and spread his buttocks. Instead, he wanted to squat
and cough. Directive 6.7, Section 3(Q) requires a visible inspection of the rectum. The parties dispute
whether the rectum can be visibly inspected when the inmate squats and coughs. When an inmate
refuses to comply with a strip search, as defined in Directive 6.6 Section 3(Q), correctional staff may
either conduct a hands-on controlled strip search under Directive 6.7, Section 7(D), or use in-cell
restraints under Directive 6.5, Section 8(A)(4). In-cell restraints may be used to “ensure compliance
with an order” and “to maintain order, safety and security.” Directive 6.5, Section 8(A)(4). Shift
supervisors may use in-cell restraints for any reason set forth in Section 8(A). Directive 6.5, Section
8(B)(1).
In-cell restraints may include one or more of the following: handcuffs, leg irons, flex cuffs, a
“black box,” a waist chain, and a tether chain. The inmate is handcuffed with his hands in front. His
ankles are secured by leg irons. A tether chain connects the two with sufficient slack to enable the
inmate to stand erect. The black box fits over the handcuffs and covers the keyholes to prevent the
inmate from picking the locks. It forms a rigid link between the inmate’s wrists. In-cell restraints
cannot be used as a punitive measure. Once the restraints are applied, the inmate must be checked every
fifteen minutes with observations recorded. The shift commander must observe the inmate at least twice
per shift and medical staff must observe the inmate and conduct a mental health assessment at least
twice per day. Inmates are able to feed themselves and use the toilet while restrained.
A hands-on controlled strip search frequently results in an explosive situation and exposes staff
to injury. In this case, the officers decided to use in-cell restraints instead.
The following facts are supported by evidence submitted by defendants but disputed by the
plaintiff. See note 1, supra. The officers placed the plaintiff in a safety gown and in-cell restraints in

5

medical unit cell 113. After the officers applied the restraints, Nurse Martin checked the restraints in
accordance with the restraint protocol. When Nurse Martin determined that the right wrist restraint was
too tight, the restraint was adjusted. An officer was posted at the plaintiff’s door for continuous
observation. Nurse Martin later observed that the restraints had been properly applied and allowed for
appropriate circulation and motion.
The plaintiff admits that he was confined and shackled in in-cell restraints from 7:15 p.m. on
November 12, 2014, until 2:25 p.m. on November 14, 2014. He denies that, during this time, his
restraints were checked every fifteen minutes or that he was offered several opportunities to be released
from restraints if he would agree to undergo the strip search protocol. He admits, however, that he
refused all offers, stating, “I am not bending over for anyone.” (ECF No. 59-2, ¶ 31.)
The following facts are supported by evidence submitted by defendants but disputed by the
plaintiff. On November 13, 2014, the plaintiff was observed standing and adjusting his restraints. There
are numerous entries in the plaintiff’s medical records for November 13 and 14, 2014, indicating that
medical staff checked on the plaintiff. On November 14, 2014, at 7:00 a.m., medical records first note
mild swelling around the plaintiff’s wrists. At 9:35 a.m., defendant Conger adjusted the plaintiff’s
restraints. Following this adjustment defendant Nurse Clapper checked the restraints in response to the
plaintiff’s complaints and noted no swelling. The plaintiff alleges that he complained of swelling in his
wrists numerous times and that custody and medical staff did not check the restraints for over thirty
hours. The plaintiff contends that his body type prevented him from being able to eat or use the toilet
while restrained.
When the plaintiff was removed from in-cell restraints, he was readied for transport to Northern
Correctional Institution. The video recording of his removal from restraints shows the plaintiff smiling

6

and joking with no complaints of injury to his wrists. The video shows no signs of swelling, cuts, or
bruises. Although the plaintiff contends the restraints on his wrists concealed the injuries, he was not
wearing restraints during the entire video and the Court is not required to credit his contention for
summary judgment purposes. Scott v. Harris, 550 U.S. 372, 379 (2007) (refusing to credit nonmovant’s assertions for summary judgment purposes where they were “blatantly contradicted” by video
evidence). The plaintiff also alleges that he decided not to complain any longer about a situation over
which he had no control. Upon his arrival at Northern Correctional Institution, the plaintiff was
examined by medical staff. He expressed no medical complaints. In this action, the plaintiff alleges that
the use of the in-cell restraints caused him to suffer permanent damage to his radial nerve with no
feeling in the first three fingers of his left hand and loss of grip strength.
D.

Use of the Black Box

According to an affidavit submitted by the defendants, gaining compliance with a strip search is
important when the inmate is involved in a significant prison disturbance that may be drug-related or the
inmate may have secreted drugs or a weapon in his crotch or anal area. The defendants considered it
possible that the plaintiff had secreted drugs, a weapon, or a handcuff key in his rectum. The use of incell restraints with the black box prevented the plaintiff from being able to access contraband secreted in
his rectum. In addition, even if the plaintiff could access a handcuff key, the black box would prevent
access to the handcuff keyholes. Even though the plaintiff was confined alone in a cell, the restraints
would prevent him from engaging in self-harm or endangering correctional staff when they entered the
cell. Although the plaintiff denies these assertions about the general need for the use of in-cell restraints
and the black box in situations such as these, he has submitted no admissible evidence to contradict
them. See note 1, supra. He argues, however, that this rationale was pretextual as in his case he was

7

confined in a cell with an officer stationed at the window observing him at all times.
E.

Plaintiff’s Grievance

In a grievance dated November 22, 2014, and filed while the plaintiff was at Northern
Correctional Institution, the plaintiff made the following complaint about the use of in-cell restraints at
Corrigan from November 12 through 14, 2014:
I was held in Corrigan, C.I. in the medical unit on in-cell [restraint] status on 1112-14 time 6:28pm until 11-14-14 time 4:00pm, for refusing to comply with a
strip search. I was held in leg restraints, handcuffs, with the “Black Box”
attached with chains to my leg chains for 42 [hours] and 28 minutes. I understand
that there are [sic] policy that dictate[s] how to treat a[n] [uncooperative] inmate
… but 42 [hours] in the “Black Box” is [torture] and inhuman to a human
being…. I claim deliberate indifference. What I would like is the Black Box only
to be used during transport, never to be used on a[n] inmate in a[n] in-cell
restraint situation. The nerve[s] in my hands were damaged and I don’t have any
feeling in my left hand. I would like some type of medical therapy, and the pain
[and] suffering I [endured] through that [whole] situation, through [torture]
tactics, that should not be allowed to take place in a correctional institution. I
would like some kind of monetary settlement. I wrote Warden Erfe, [Captain]
Washington, and [Lieutenant] Conger. They have not responded, but I wrote
[Deputy] Warden Mulligan and he wrote back. See attached request. All these
request[s] were dated the same day.
(ECF No. 59-4 at 44.) Further evidence regarding the filing of this grievance and related papers, and the
response from the DOC officials, is discussed below in the analysis of Defendants’ exhaustion
argument.
III.

Discussion
The plaintiff is proceeding on a claim of excessive force, state law claims of assault and battery,

and a claim for deliberate indifference to serious medical needs. The plaintiff alleges that defendants
used excessive force on him by confining him in in-cell restraints for 42.5 hours for refusing a strip
search and also challenges the general practice of using in-cell restraints for inmates who refuse to
participate in a strip search. The plaintiff also asserts state law claims for assault and battery against
8

defendants Norfleet and Ruggiero. Finally, the plaintiff alleges that defendants Clapper, Norfleet, and
Ruggiero were deliberately indifferent to his serious medical needs for failing to loosen the restraints,
causing him to suffer radial nerve damage.
The defendants move for summary judgment on two grounds. First, the defendants argue that
the plaintiff failed to exhaust his administrative remedies before commencing this action. Second, they
contend that he has failed to present evidence of a violation of the Constitution or state law.
A.

Exhaustion of Administrative Remedies

Although the defendants do not dispute that the plaintiff filed the grievance quoted above, they
argue that he failed to do so in compliance with applicable grievance procedures and, specifically, that
he failed to make a timely attempt to resolve the dispute informally in writing before filing the
grievance, as required by DOC grievance procedures. As a result, the Defendants argue, the exhaustion
requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (the “PLRA”), bars the
plaintiff’s claims.
The PLRA requires inmates to exhaust available administrative remedies before filing an action
in federal court concerning any aspect of prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). An
inmate must exhaust any such remedies, regardless of whether they provide the relief the inmate seeks.
See Booth v. Churner, 532 U.S. 731, 741 (2001). A claim is not exhausted until the inmate complies
with all administrative deadlines and procedures. See Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Informal efforts to put prison officials on notice of inmate concerns do not satisfy the exhaustion
requirement. See Marcias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007). If the deadline to file a grievance has
passed, an unexhausted claim is barred from federal court. See Woodford, 548 U.S. at 95. In addition,
the inmate must exhaust his administrative remedies for each claim he asserts in federal court. See

9

Baldwin v. Arnone, No. 3:12cv243(JCH), 2013 WL 628660, at *5 (D. Conn. Feb. 18, 2013).
An inmate may be excused from the exhaustion requirement only if administrative remedies
were not in fact available. Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1858 (2016). The Supreme
Court has identified three circumstances where an administrative remedy, although officially available,
cannot be used by inmates to obtain relief. Id. at 1859. First, the administrative remedy may operate as
a “dead end,” such as where the office to which inmates are directed to submit all grievances disclaims
the ability to consider them. Id. Second, the procedures may be so confusing that no ordinary prisoner
could be expected to “discern or navigate” the requirements. Id. And third, prison officials may “thwart
inmates from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
The Department of Correction grievance procedures are set forth in Administrative Directive 9.6.
(See Defs.’ Mem. Ex. F, ECF No. 59-8.) The procedures require an inmate first to seek informal
resolution of the issue in writing, using an Inmate Request Form. The appropriate correctional official
has fifteen days to respond to the Inmate Request. If the inmate is not satisfied with the response, the
inmate must file a grievance and attach the Inmate Request Form containing the response. The inmate
must file the grievance within thirty days of the date of the cause of the grievance. The Unit
Administrator has thirty days to respond to the grievance. If the inmate is not satisfied with the
response, or no response is provided within the thirty days, the inmate may file a grievance appeal.
Although Blake does not suggest that an inmate’s awareness of grievance procedures is a
prerequisite to finding a failure to exhaust, in this case the undisputed evidence shows that the plaintiff
was aware of the grievance procedures. Before filing this lawsuit, he attended inmate orientation at
various correctional facilities and received handbooks describing the administrative remedy procedures

10

– as he acknowledged in his deposition. (ECF No. 59-4 at 10-12.). Further, the plaintiff has not
identified any person who prevented or interfered with his filing the grievance and has alleged no facts
to invoke any of the exceptions identified in Ross. There is thus no doubt that the plaintiff was required
to comply with the grievance procedures set forth in Administrative Directive 9.6.
Defendants argue that the plaintiff failed to do so, asserting that he filed his grievance in
violation of the rule requiring him to attach to his grievance his Inmate Request Form, Form CN 9601,
showing that he had attempted informal resolution of the dispute or to explain why that form was not
attached. After resolving all ambiguities and drawing all inferences in the record in favor of the
plaintiff, however, the Court finds that a reasonable juror could find that he properly exhausted his
administrative remedies as to some of his claims. First, there is evidence in the record to support the
plaintiff’s claim that he did not actually file his grievance, which, as noted, is dated November 22, 2014,
until December 10, 2014; this timing, taken together with the facts discussed below, suggests that he
complied with the rule requiring informal resolution of the dispute before filing the grievance. (ECF
No. 1 at 22; see also id. at 9 ¶ 44.) The text of the grievance provides support for this interpretation of
the record. It asserts that the plaintiff “wrote to” Warden Erfe and other Corrigan officials, that they had
not responded, and that he also “wrote [Deputy] Warden Mulligan,” an official at Northern Correctional
Institution who “wrote back.” (ECF No. 59-4 at 44.) The record includes evidence that Deputy
Warden Mulligan did indeed “wr[i]te back” – by filling out the response portion of an Inmate Request
Form, Form CN 9601, on December 5, 2014, which is after the November 22 date shown on the
grievance but before the December 10 date the plaintiff contends he actually filed the grievance. (ECF
No. 59-4 at 68.) The plaintiff’s comment in his grievance that Mulligan had “wr[itten] back” supports
the plaintiff’s claim that the grievance was not filed (and not wholly filled out by the plaintiff) until

11

December 10. The plaintiff’s portion of the Inmate Request Form, which is dated December 2, 2014,
includes essentially the same complaint set forth in the grievance and quoted above. (Id.) The Inmate
Request Form also includes Deputy Warden Mulligan’s response: “You are asking me to comment or
change policy at another facility that is beyond my jurisdiction” – which the Court interprets to mean
that the plaintiff was complaining about practices at Corrigan while he was housed at Northern.
The record also includes a separate Inmate Request Form dated December 2, 2014, and
addressed to Warden Erfe and other officials at Corrigan. (ECF No. 59-4 at 74.) The plaintiff’s portion
of that form sets forth essentially the same claim set forth in his grievance and also states: “I[] already
wrote you about this matter. You did not respond. This matter is not going away. I have re-submitted
these request[s] to all the above, I am still waiting for a response.” (Id.) The response portion of the
form is empty. All this is consistent with the plaintiff’s statement in his grievance that he “wrote to”
Erfe and other Corrigan officials and that they did not respond.
To be sure, the record as a whole does not unequivocally support the notion that the plaintiff
filed his grievance on December 10. There is other evidence that the plaintiff filed his grievance on
November 22, 2014 (ECF No. 59-4 at 71), which would have made it impossible for him to have
attached Inmate Request Forms dated in December or otherwise to show – given the other evidence in
the record – that he had attempted an informal resolution of his complaint.

On summary judgment,

however, the Court is required to resolve this conflict in the plaintiff’s favor, and when that is done, it is
apparent that he complied with the requirements of Administrative Directive 9.6. That Directive
requires the inmate to file any grievance within 30 days of the “occurrence or discovery of the cause of
the grievance.” The plaintiff complied with this deadline by filing a grievance on December 10 to
complain about his confinement in in-cell restraints from November 12 through November 14. With

12

regard to the requirement of first seeking informal resolution in writing, the Directive states as follows:
"The inmate shall attach CN 9601, Inmate Request Form, containing the appropriate staff member's
response, to the CN 9602, Inmate Administrative Remedy Form [i.e., the grievance form]. If the inmate
was unable to obtain a blank CN 9601 ... 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 ... is not
attached.....”

The text of plaintiff’s grievance suggests that it did attach the Inmate Request Forms,

Forms CN9601 – both the one showing Mulligan’s response and the one sent to Erfe and other Corrigan
officials showing no response. (ECF No. 59-4 at 44 (“I wrote Warden Erfe …. They have not
responded. I wrote D[eputy] Warden Mulligan and he wrote back. See attached request. All these
Request[s] were dated the same day.”) (emphasis added)).3 Admittedly, Mulligan was probably not an
“appropriate staff member” within the meaning of the Directive – because he did not work at the facility
at which the events that were the subject of the grievance occurred – and the Inmate Request Form
addressed to the Corrigan officials did not include their response. But the text of the grievance, together
with the plaintiff’s statements on the Inmate Request Form addressed to the Corrigan officials that he
had made previous requests, constitute sufficient evidence for a reasonable juror to find that the plaintiff
“did not receive a timely response to the inmate request” and thus that he complied with the
requirements of the Directive.4

3

In the exhibits attached to Plaintiff’s original complaint, the Inmate Request Form with Mulligan’s response was
attached to the first page of the grievance – although the second page of the grievance, which set forth the text of
the complaint, was missing. (See ECF No. 1 at 22-23.) The Inmate Request form addressed to Erfe and others at
Corrigan – showing no response – was also included in the exhibits filed with the original complaint, albeit not
adjacent to the grievance. (ECF No. 1 at 29.)

4

This is so even though the inmate request form addressed to the Corrigan officials is dated December 2, 2014,
and under the Directive those officials had fifteen days to respond. The plaintiff’s portion of the form indicates
that he made earlier requests to which those officials did not respond, and there is in any event no evidence that

13

A reasonable juror could find exhaustion, however, only with respect to those of the plaintiff’s
claims in this action that he actually asserted in the grievance. See, e.g., Ortiz v. McBride, 380 F.3d 649,
654 (2d Cir. 2004) (finding exhaustion as to due process claim but not as to Eighth Amendment claim).
The plaintiff’s grievance makes no mention of any defendants checking on and refusing to loosen the
restraints, his inability to feed himself or see to his bodily functions, or deliberate indifference to any
need for medical care. The plaintiff has thus exhausted his administrative remedies only as to his
excessive force claim and state law assault and battery claims, all of which are based on his confinement
in in-cell restraints, including the black box. The defendants’ motion for summary judgment is granted
on failure-to-exhaust grounds as to all remaining claims, including the claim for deliberate indifference
to serious medical needs, any claims regarding any activities while the plaintiff was restrained, including
any refusal to loosen the restraints, and any challenges to the strip search procedure itself – including the
requirement that he bend at the waist and spread his buttocks to allow for a visual inspection of the
rectum.5

the Corrigan officials responded at the close of the fifteen-day period – December 17. Further, a reasonable juror
could find that the plaintiff’s transfer to Northern immediately following the events giving rise to his grievance
hindered his ability to submit a timely Inmate Request Form – and to receive a timely response – and thereby
constitutes “a similar valid reason” for not submitting with his grievance an Inmate Request Form from an
“appropriate official” under the Directive. Finally, although the record also includes later inmate request forms
containing responses from the Corrigan officials in which they assert that these later requests were the first they
received, I need not credit those statements on summary judgment.
5

In his opposition memorandum, the plaintiff contends that the search was conducted before several male officers
and one female officer and also that it was videotaped. These claims were neither exhausted nor included in the
complaint and cannot be added to the case via a memorandum. See Wright v. Ersnt & Young, LLP, 152 F.3d 169,
178 (2d Cir. 1998) (plaintiff cannot amend complaint in a memorandum); August v. Department of Corrections,
424 F. Supp. 2d 363, 368 (D. Conn. 2006 (same); Heletsi v. Lufthansa German Airlines, Inc., No. 99-CV4793(SJ), 2001 WL 1646518, at *1 n.1 (E.D.N.Y. Dec. 18, 2001) (disregarding new allegation of fact raised in
opposing memorandum; noting that “[a] party cannot amend their complaint simply by alleging new facts and
theories in their memoranda opposing summary judgment.”). In any event, the Court has reviewed the videotape,
which does not show the plaintiff below the waist and shows that the female officer, Lieutenant Champion, left
the cell while the plaintiff was unclothed. (Defs.’ Mem., ECF No. 59, Ex. D.)

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B.

Excessive Force

Defendants also seek summary judgment on the plaintiff’s excessive force and assault and
battery claims. They argue that use of in-cell restraints with the black box to compel compliance with a
strip search is reasonably related to maintaining prison security and that, although the restraints were
applied to the plaintiff for an extended period, he was appropriately monitored and offered opportunities
to end the application of force by complying with the strip search. As the Court noted in the initial
review order (ECF No. 8 at 8), the excessive force claim can be construed as presenting both a facial and
an as-applied challenge to the plaintiff’s confinement in restraints, i.e., that: (1) the practice of using the
black box with in-cell restraints to gain compliance with a strip search is unconstitutional, and (2) in the
circumstances of this case, placing the plaintiff in in-cell restraints, including the “black box,” for 42.5
hours for refusing to submit to a strip search was unconstitutional. The Court agrees with the defendants
that there is no genuine dispute of material fact and they are entitled to judgment as a matter of law with
respect to the facial challenge to the use of in-cell restraints, including the black box, to gain compliance
with lawful orders, including the strip search procedure involved here. The Court finds, however, that
there are genuine disputes of material fact that preclude summary judgment regarding the application of
the in-cell restraints to the plaintiff in this case.
The use of excessive force against a prisoner can constitute cruel and unusual punishment even
where the inmate does not suffer serious injuries. See Hudson v. McMillian, 503 U.S. 1, 4 (1992),
accord Wilkins v. Gaddy, 559 U.S. 34, 34, 36 (2010) (per curiam). The "core judicial inquiry" is "not
whether a certain quantum of injury was sustained but rather whether force was applied in a good faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Wilkins, 559 U.S.
at 37 (quoting Hudson, 503 U.S. at 7 (internal quotation marks omitted). There are objective and

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subjective components to the excessive force standard. Hudson, 503 U.S. at 8. Objectively, the court
must consider the level of force used against the inmate and determine whether that force is repugnant to
the conscience of mankind. Id. at 9-10. Subjectively, the court must determine whether the defendants
had a “wanton” state of mind when applying the force. Id. at 8.
The extent of the inmate’s injuries is one factor the court may use to determine whether
correctional staff could “plausibly” have considered the force necessary in a particular situation. Id. at
7. Other factors include “the need for application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made
to temper the severity of a forceful response.” Id. (internal quotation marks and citation omitted).
Maintaining order and security in a prison is a legitimate penological objective. Thus, the use of
restraints that are reasonably related to maintaining prison order and security, without more, does not
violate the Eighth Amendment. See Dolphin v. Manson, 636 F. Supp. 229, 234 (D. Conn. 1986) (citing
Bell v. Wolfish, 442 U.S. 520, 540 (1979)). When considering claims relating to the use of restraints,
courts consider the circumstances surrounding use of the restraints, including both the length of time the
restraints were applied and the objective sought to be achieved through their use. See Alston v.
Butkiewicus, No. 3:09-cv-207(CSH), 2012 WL 6093887, at *11 (D. Conn. Dec. 7, 2012).
DOC Administrative Directive 6.5 permits supervisors to use in-cell restraints to ensure
compliance with an order and to maintain prison order, safety, and security. See Directive 6.5, Section
8(A)(4). Here, the plaintiff refused to comply with a strip search order. While he disagreed with the
manner in which the defendants proposed to conduct the strip search, the U.S. Supreme Court has
upheld the use of the “bend and spread” form of strip search by prison officials. Bell v. Wolfish, 441
U.S. 520, 558 n.39 & 560-61 (1979) (upholding, against Fourth Amendment and Due Process

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challenges, strip search whereby inmate was naked and required to bend at waist and spread buttocks).
Because the plaintiff thus had no legal basis to resist the defendants’ lawful order, the use of in-cell
restraints was warranted under the directive.
The plaintiff argues that the defendants could have elected to perform a hands-on controlled strip
search instead of using in-cell restraints. It is not excessive force, however, for the defendants to choose
between two lawful force options, and the defendants here reasonably chose one that involved less
“hands-on” force. The defendants have provided an affidavit of District Administrator Peter Murphy
stating that a controlled, hands-on strip search, during which the inmate’s legs are forced apart to expose
his rectum and genitalia, can result in an explosive situation, exposing staff to possible injury. (See
Defs.’ Mem. Ex. I, ECF No. 59-11, ¶ 6.) District Administrator Murphy also states that if an inmate is
permitted to go to restrictive housing without first being strip searched, the inmate may bring with him
contraband secreted in his rectum. Contraband might include drugs, a weapon, or handcuff keys.
During his career, District Administrator Murphy has seen this happen numerous times. Id. at ¶ 7. With
the black box applied to the handcuffs, it would be more difficult for an inmate to retrieve items from his
rectum. Even if the inmate were able to retrieve a handcuff key, he would be unable to unlock his
handcuffs as the lock is covered by the black box. Id. at ¶ 8. The plaintiff has submitted no admissible
evidence contradicting this evidence.
The defendants have presented evidence showing the threat reasonably perceived by correctional
staff when an inmate refused to undergo a strip search after involvement in a significant incident, the
need for application of force, and a relationship between the need and amount of force used. Although
application of in-cell restraints would last longer than a hands-on controlled strip search, use of in-cell
restraints posed a lower risk of injury to staff and the inmate. In addition, the defendants have provided

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the affidavit of Dr. Johnny Wu stating that properly adjusted in-cell restraints with a black box will not
cause injury. (Defs.’ Mem. Ex. K, ECF No. 59-13, ¶ 5.) I conclude that the policy of utilizing in-cell
restraints when an inmate refuses a lawful order to undergo a strip search does not constitute the use of
excessive force. The defendants’ motion for summary judgment is granted as to the facial challenge to
this policy.
The remaining federal claim is whether the application of in-cell restraints to the plaintiff under
the circumstances of this case constituted the use of excessive force. “There is consensus among courts
in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury
beyond temporary discomfort.” Lozada v. City of New York, No. 12 Civ. 0038(ILG)(JMA), 2013 WL
3934998, at *5 (S.D.N.Y. July 29, 2013) (quoting Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.
Supp. 2d 459, 468 (S.D.N.Y. 2008) (collecting cases)) (internal quotation marks omitted). Plaintiff
alleges that he suffered permanent radial nerve damage to his left hand causing loss of feeling in his
thumb and first two fingers (Am. Compl., ECF No. 32, ¶ 39-42), and has filed copies of his medical
records documenting the diagnosis. (Id. Ex. 35-36.) The defendants have not filed any contrary
evidence. Injury causing permanent nerve damage is more than de minimis and applying handcuffs so
tightly as to cause such injury is repugnant to the conscience of mankind. Thus, the plaintiff satisfies the
objective component of the excessive force standard.
The plaintiff also must demonstrate that the defendants acted with a sufficiently culpable state of
mind. The plaintiff’s refusal to submit to a body cavity search lends credence to the possibility that he
was hiding something in his rectum. On the other hand, there is no evidence in the record showing that,
after it became clear that the use of in-cell restraints was not gaining the plaintiff’s compliance with the
strip search order, the defendants ever revisited the option of a hands-on search or otherwise considered

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other mechanisms to achieve their lawful objectives – short of leaving the plaintiff in a highly restricted
position for 42.5 hours. The video shows that the plaintiff was not agitated or resisting the officers in
any way, and, when the plaintiff was released from in-cell restraints after 42.5 hours, he was not strip
searched before being transferred to Northern Correctional Institution. (Pl.’s Declaration, ECF No. 641, ¶ 14.) The video shows that the black box was removed in the Admitting and Processing room and
not reapplied. (Defs.’ Mem., ECF No. 59, Ex. D.) Plaintiff argues that the fact that he was not strip
searched before transfer calls into question the defendants’ contention that application of in-cell
restraints was necessary to ensure institutional safety and security and shows that the defendants
intended to punish him by application of the in-cell restraints.
The Court concludes that there are triable issues regarding the reason for plaintiff’s placement on
in-cell restraints and the duration of the in-cell restraints. Resolution of this question requires an
assessment of the parties’ credibility, which cannot be done on a motion for summary judgment. The
defendants’ motion for summary judgment is denied on this claim, and as to the related assault and
battery claims.
C.

Remaining Defendants

There remains the question of which defendants the remaining excessive force and assault and
battery claims actually target. This is not a straightforward question in this case, as the complaint is
ambiguous about which defendants were allegedly responsible for particular acts. The “Claims for
Relief” section of the complaint lists Erfe, Marten, Williams, Champion, Conger, Norfleet, and
Ruggerio as being responsible for the application of the “black box applied with the handcuffs without
need or provocation” and for “the tort of assault and battery.” (ECF No. 1 at 12 ¶ 66.) But the
complaint does not plead any facts suggesting that Erfe, Marten, or Williams were actually involved in

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any of the decisions to apply force to the plaintiff – other than the decision to approve the policy of
using in-cell restraints including the black box on inmates who resist orders, a decision as to which the
Court has granted summary judgment to defendants. (See ECF No. 1 at ¶ 65.) Upon reflection, the
Court’s earlier orders are also – admittedly – less than clear on this point, as they suggest – incorrectly –
that only defendants Norfleet and Ruggerio were involved in the actual application of force to the
plaintiff. (ECF No. 8 at 8; ECF No. 62 at 6.) The summary judgment record shows that Defendants
Champion and Conger were also dealing directly with the plaintiff and may have had some involvement
in the decision to keep him in restraints for 42.5 hours. In his deposition, the plaintiff testified that he
was suing Erfe, Martin, and Williams because they were “in charge of the whole policy set up, that they
apply this black box in the first place.” (ECF No. 59-4 at 25 (describing the plaintiff’s reason for suing
Erfe); see also id. (as to Martin: “He is in the same situation….”) and id. (as to Williams: “Captain
Williams is in the same boat as the other two ….”).) The plaintiff offered no other reason for suing
those three defendants and, as noted, the Court has granted summary judgment as to the facial challenge
to the use of in-cell restraints, including the black box, to compel compliance with orders.
After construing the pleadings and record liberally in favor of the pro se plaintiff, it appears that
the remaining defendants are Norfleet, Ruggerio, Conger, and Champion. As noted, this conclusion
arguably contradicts earlier suggestions by the Court that only Norfleet and Ruggerio were defendants
on the as-applied challenge to the plaintiff’s confinement in in-cell restraints. Thus, when the motion for
summary judgment was filed, Defendants Conger and Champion may have assumed that they were no
longer defendants as to the as-applied excessive force claim and did not need to respond to that claim.
In fairness to defendants Conger and Champion, then, the Court will allow those defendants – and those
defendants only – to file a second motion for summary judgment as to a single issue, that is, the issue of

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their personal involvement in the conduct surround the remaining, as-applied excessive force claim.
Specifically, within sixty days of this order, should they believe there is a basis to do so, defendants
Conger and Champion may file a motion for summary judgment attempting to show that there is no
genuine dispute as to a material fact that they were not personally involved in the conduct that forms the
basis of the as-applied excessive force claim. If defense counsel concludes there is no basis for filing
such a motion – or otherwise chooses not to file such a motion for any reason – he shall file a statement
on the docket within forty-five days of this order notifying the plaintiff and the Court of his decision not
to file the motion for summary judgment described in this paragraph.
IV.

Conclusion
The defendants’ motion for summary judgment [Doc. #59] is GRANTED as to claims except the

excessive force claim and assault and battery claims against defendants Norfleet, Ruggiero, Champion,
and Conger regarding the application of in-cell restraints to the plaintiff. Within sixty days of this order,
defendants Champion and Conger may file a motion for summary judgment as to the issue of their
personal involvement, as described above. If they determine not to file such a motion, they shall file a
statement so indicating within forty-five days of the date of this order. The Court is unlikely to extend
these deadlines.
All remaining deadlines in the case are adjusted as follows. If Defendants Conger and Champion
file a second motion for summary judgment, then the joint trial memorandum will be due within 45 days
of the Court’s ruling on that motion. If not, the joint trial memorandum will be due within 45 days of
the filing by defense counsel of the statement indicating that he does not intend to file another summary
judgment motion.
The Court will suspend these deadlines if the parties jointly indicate they wish to proceed to

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mediation with a magistrate judge. Should they wish to do so at this juncture, the parties shall, within 21
days of this order, file a joint statement certifying that (1) the parties have conferred with each other
(through counsel, in the case of the defendants), (2) the parties wish to proceed to mediation, (3) the
parties are willing to participate in settlement efforts at such mediation in good faith, and (4) the parties
and counsel believe that a mediation stands at least a reasonable chance of resolving the case without
trial. The Court will then refer the case for mediation before the Honorable Magistrate Judge Martinez.
SO ORDERED.
Signed this 4th day of January 2016 at Hartford, Connecticut.

/s/
Michael P. Shea
United States District Judge

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