Terbush v. Mitchell

Filing 46

RULING granting 43 Second MOTION for Summary Judgment. The Clerk of the Court is directed to enter judgment in favor of the defendant. Signed by Judge Sarah A. L. Merriam on 2/17/2017. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
RYAN TERBUSH
:
:
v.
:
:
MITCHELL
:
:
------------------------------x

Civ. No. 3:15CV01339(SALM)

February 17, 2017

RULING ON DEFENDANT’S SECOND MOTION FOR
SUMMARY JUDGMENT [Doc. #43]
Plaintiff Ryan Terbush (“plaintiff”) brings this action
against defendant Department of Correction Captain Mitchell
(“defendant”) pursuant to 42 U.S.C. §1983, alleging that
defendant was deliberately indifferent to plaintiff’s serious
medical needs in violation of the Eighth Amendment to the United
States Constitution. See Doc. #37, Second Amended Complaint.
Pending before the Court is defendant’s Second Motion for
Summary Judgment. [Doc. #42].1 Plaintiff has filed a Memorandum

Defendant previously filed a Motion for Summary Judgment on
July 1, 2016. [Doc. #28]. On July 23, 2016, plaintiff filed a
Motion to Amend/Correct the Amended Complaint [Doc. #33], along
with a memorandum in opposition to the Motion for Summary
Judgment [Doc. #34]. On August 15, 2016, the parties filed a
Consent Notice regarding the Motion to Amend/Correct the Amended
Complaint, in which counsel for defendant represented that he
had no objection to the motion provided that he was allowed to
file a second motion for summary judgment directed towards the
allegations in the Second Amended Complaint and that discovery
remained closed. See Doc. #35 at 1. The Court granted
plaintiff’s Motion to Amend/Correct the Amended Complaint, and
set a filing deadline for the Second Motion for Summary
Judgment. See Doc. #36.
1

1

of Law in Opposition to defendant’s motion [Doc. #44], to which
defendant has filed a reply [Doc. #45].
For the reasons articulated below, the defendant’s Second
Motion for Summary Judgment [Doc. #43] is GRANTED.
I.

Background
Plaintiff filed his complaint on September 8, 2015. [Doc.

#1]. Following two amendments of his initial pleading, plaintiff
now proceeds under the operative Second Amended Complaint (the
“Second Amended Complaint”). [Doc. #37]. The Second Amended
Complaint alleges a single count against defendant. Plaintiff
claims that his Eighth Amendment rights were violated when
defendant deprived plaintiff of the opportunity to attend a
medical appointment, resulting in plaintiff’s “physical health
[having] been gravely jeopardized.” See generally Doc. #37 at
¶¶10-16. Defendant now moves for summary judgment. [Doc. #43].
II.

Legal 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

2

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.”2
Marvel Characters, 310 F.3d at 286. The moving party may
discharge this burden by “pointing out to the district court ...
that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp., 477 U.S. at 325; see also Goenaga
v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.
1995) (“In moving for summary 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.”).
In deciding a motion for summary judgment, “[t]he court
must resolve all ambiguities and draw all inferences in favor of
the nonmoving party[.]” Aldrich v. Randolph Cent. Sch. Dist.,
963 F.2d 520, 523 (2d Cir. 1992). “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

A fact is “material” if it might affect the outcome of the suit
under the substantive law applicable to the case. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2

3

Assur. Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313,
315 (2d Cir. 2006) (quoting Marvel, 310 F.3d at 286) (internal
quotation marks omitted). However, “the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48 (emphases in original).
“In ruling on a motion for summary judgment, the district
court may rely on any material that would be admissible or
usable at trial.” Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 309 (2d Cir. 2008) (quoting Azrielli v.
Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1997)) (internal
quotation marks omitted). Where, as here, “a summary judgment
motion is supported or opposed by affidavits, those ‘affidavits
shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein.’” Id. at 310 (quoting Fed. R. Civ. P. 56(e)).
Therefore,
[i]n order to defeat a properly supported summary
judgment motion, the opposing party must proffer
admissible evidence that “set[s] forth specific facts”
showing a genuinely disputed factual issue that is
material under the applicable legal principles. Fed. R.
Civ. P. 56(e); see, e.g., Patterson v. County of Oneida,
375 F.3d 206, 219 (2d Cir. 2004)[.] A party opposing
summary judgment does not show the existence of a genuine
issue of fact to be tried merely by making assertions
4

that are conclusory, see, e.g., Kulak v. City of New
York, 88 F.3d 63, 71 (2d Cir. 1996), or based on
speculation, see, e.g., id. (“Though we must accept as
true the allegations of the party defending against the
summary
judgment
motion,
drawing
all
reasonable
inferences in his favor, ... conclusory statements,
conjecture, or speculation by the party resisting the
motion will not defeat summary judgment.”)[.]
Major League Baseball, 542 F.3d at 310 (alterations added).
III. Facts
The Court sets forth only those facts deemed necessary to
an understanding of the issues raised in, and decision rendered
on, this Second Motion for Summary Judgment. The following
factual summary is based on plaintiff’s Second Amended Complaint
[Doc. #37], defendant’s Local Rule 56(a)1 Statement of Material
Facts [Doc. #43-12] (“Def. 56(a)1 Stmt”), plaintiff’s Local Rule
56(a)2 Statement, Response to Defendant’s Claims of Fact [Doc.
#44-1] (“Pl. 56(a)2 Stmt”), and accompanying affidavits,
depositions and exhibits, to the extent that they are admissible
evidence. The following factual summary, therefore, does not
represent factual findings of the Court. All facts stated below
are undisputed (or have been deemed undisputed) unless stated
otherwise.
Plaintiff currently is, and at the time of the events at
issue was, incarcerated within the Connecticut Department of
Correction (“DOC”). [Def. 56(a)1 Stmt, ¶¶2-4; Pl. 56(a)2 Stmt,
¶¶2-4 (admitted)]. At the time of the incident in question,

5

plaintiff was housed at Garner Correctional Institution located
in Newtown, Connecticut (“Garner”). [Def. 56(a)1 Stmt, ¶4; Pl.
56(a)2 Stmt, ¶4 (admitted)]. During plaintiff’s incarceration,
he has received medical care for a variety of issues, including
foraminal stenosis at C4-C5, and other spinal-related problems.
[Def. 56(a)1 Stmt, ¶¶6, 8, 93; Pl. 56(a)2 Stmt, ¶¶6, 8, 93
(admitted)]. Sometime before July 10, 2013, plaintiff underwent
a spinal fusion surgery, which fused his spinal column at C4-C5
and C6-C7. [Def. 56(a)1 Stmt, ¶9; Pl. 56(a)2 Stmt, ¶9
(admitted)]. After this surgery, plaintiff was followed by the
University of Connecticut Health Center, Division of
Neurosurgery (“UConn Neurosurgery”). [Def. 56(a)1 Stmt, ¶10; Pl.
56(a)2 Stmt, ¶10 (admitted)]. In the months before the date and
incident in question, plaintiff was seen by UConn Neurosurgery
on July 10, 2013; October 11, 2013; and June 13, 2014. [Def.
56(a)1 Stmt, ¶¶98, 100, 102; Pl. 56(a)2 Stmt, ¶¶98, 100, 102
(admitted)]. During his October 11, 2013, and June 13, 2014,
appointments, plaintiff appeared in no acute distress and had a
good range of motion of his cervical spine. [Def. 56(a)1 Stmt,
¶¶101, 103; Pl. 56(a)2 Stmt, ¶¶101, 103 (admitted)].
Plaintiff’s claim relates to a single encounter with
defendant which allegedly resulted in plaintiff not attending a
medical appointment with UConn Neurosurgery on December 12,
2014. [Def. 56(a)1 Stmt, ¶¶4-5, 11, 35; Pl. 56(a)2 Stmt, ¶¶4-5,
6

11, 35 (admitted)]. Two days before this appointment, plaintiff
was placed in in-cell restraints, consisting of handcuffs
connected to ankle shackles by a chain, which limited his
mobility. [Def. 56(a)1 Stmt, ¶¶14-16; Pl. 56(a)2 Stmt, ¶¶14-16
(admitted)]. As a result, plaintiff claims that he was unable to
sufficiently clean himself or brush his teeth prior to the
December 12, 2014, medical appointment. [Def. 56(a)1 Stmt, ¶¶1718; Pl. 56(a)2 Stmt, ¶¶17-18 (admitted)]. On December 12, 2014,
DOC arranged to transport plaintiff from Garner to the
University of Connecticut Health Center in Farmington,
Connecticut, for plaintiff to meet with a neurosurgery
clinician. [Def. 56(a)1 Stmt, ¶12; Pl. 56(a)2 Stmt, ¶12
(admitted)].
The parties dispute what occurred next. Defendant contends
that “[p]laintiff was not cooperative with DOC staff when they
arrived at his cell to bring him to the vehicle that was
scheduled to transport him[,]” that plaintiff “did not want to
leave his cell without cleaning himself first[,]” and that
“[p]laintiff’s reluctance to leave his cell delayed the
transportation.” [Def. 56(a)1 Stmt, ¶¶19-21]. Plaintiff,
however, contends that he spent the night before the December
12, 2014, appointment asking guards whether he could shower and
brush his teeth before the appointment. [Pl. Statement of
Material Facts, Doc. #44-1, ¶2]. On the morning of the
7

appointment, plaintiff again requested to shower, to which the
defendant responded, “No.” Id. at ¶3. Plaintiff next asked to
brush his teeth, which request was denied by defendant because
there was inadequate time to so do. Id. at ¶¶4-5. Plaintiff then
responded that he did not “want to go if [he could not] even,
you know, wash up and brush my teeth.” Id. at ¶6. Plaintiff then
contends that defendant stated plaintiff was refusing a medical
appointment and left plaintiff’s cell, and that plaintiff
pleaded with defendant to let him attend the appointment. Id. at
¶¶7-8.
On December 12, 2014, defendant held the rank of
Correctional Captain and served as the Housing Unit Manager of
the restrictive housing unit and Garner. [Def. 56(a)1 Stmt,
¶¶23-24; Pl. 56(a)2 Stmt, ¶¶23-24 (admitted)]. On December 12,
2014, defendant’s duties did not include facilitating
transportation to medical appointments, scheduling or
rescheduling medical appointments, or supervision of medical
staff. [Def. 56(a)1 Stmt, ¶25; Pl. 56(a)2 Stmt, ¶25 (admitted)].
On December 12, 2014, defendant would not have been called to
plaintiff’s cell unless there was an issue that could not be
addressed by defendant’s subordinates. [Def. 56(a)1 Stmt, ¶26;
Pl. 56(a)2 Stmt, ¶26 (admitted)].
When defendant arrived at plaintiff’s cell, he was informed
that plaintiff’s delay in leaving the cell left little time to
8

transfer plaintiff to the transportation vehicle in time to make
the UConn Neurosurgery appointment. [Def. 56(a)1 Stmt, ¶27; Pl.
56(a)2 Stmt, ¶27 (admitted)]. Defendant did not know what type
of medical appointment plaintiff was scheduled for that day.
[Def. 56(a)1 Stmt, ¶32; Pl. 56(a)2 Stmt, ¶32 (admitted)].
Defendant also had no knowledge of plaintiff’s medical
conditions or treatment as related to plaintiff’s spinal
injuries. [Def. 56(a)1 Stmt, ¶33].3 Plaintiff never told
defendant about his medical conditions because “[t]hat’s not
something [he] would discuss with the [defendant].” [Def. 56(a)1
Stmt, ¶¶75-76; Pl. 56(a)2 Stmt, ¶¶75-76 (admitted)]. When
defendant encountered plaintiff, plaintiff again stated that he
wanted to shower and clean himself before going to the medical
appointment. [Def. 56(a)1 Stmt, ¶36; Pl. 56(a)2 Stmt, ¶36
(admitted)]. Defendant told plaintiff that he could not shower
or clean himself before the appointment, as he believed that
there was not enough time to do so and timely attend the

Plaintiff denies that on the day in question “the defendant had
no knowledge about plaintiff’s medical conditions or treatment.”
[Pl. 56(a)2 Stmt, ¶33]. In support of this denial, plaintiff
cites to page 102 of his deposition testimony, presumably the
portion asserting that plaintiff’s “face was really swollen,
black and blue and swollen, and I believe that that was part of
the reason that I wasn’t – he didn’t want me to go to the
appointment.” Id.; see also Doc. #44-2, May 19, 2016, Deposition
of Ryan Terbush (“Pl. Depo.”), at 102:18-22. This however, does
not refute the statement that defendant had no knowledge about
plaintiff’s spinal-related medical conditions, which form the
basis of the Second Amended Complaint’s allegations.
3

9

appointment. [Def. 56(a)1 Stmt, ¶¶28, 37-38; Pl. 56(a)2 Stmt,
¶¶28, 37-38 (admitted)]. Defendant also believed that
plaintiff’s medical appointment could be rescheduled if needed.
[Def. 56(a)1 Stmt, ¶77; Pl. 56(a)2 Stmt, ¶77 (admitted)].
Ultimately, plaintiff did not attend the December 12, 2014,
appointment with UConn Neurosurgery. [Def. 56(a)1 Stmt, ¶¶40,
104; Pl. 56(a)2 Stmt, ¶¶40, 104 (admitted)].
Plaintiff received a consultation with UConn Neurosurgery
on June 26, 2015, where a clinician discussed plaintiff’s
medical options. [Def. 56(a)1 Stmt, ¶¶105-106; Pl. 56(a)2 Stmt,
¶¶105-106 (admitted)]. During this consultation plaintiff
requested pain medication. [Def. 56(a)1 Stmt, ¶107; Pl. 56(a)2
Stmt, ¶107 (admitted)]. The clinician recommended an epidural
steroid injection, which plaintiff refused. [Def. 56(a)1 Stmt,
¶¶108-109; Pl. 56(a)2 Stmt, ¶¶108-109 (admitted)]. Plaintiff
received another consultation with UConn Neurosurgery on
February 12, 2016, at which again a clinician recommended
epidural steroid injections, but plaintiff refused, claiming
that the injections do not work. [Def. 56(a)1 Stmt, ¶¶110-112;
Pl. 56(a)2 Stmt, ¶¶110-112 (admitted)]. During this consultation
plaintiff requested an increase in his pain medication and
indicated that he was not interested in surgical intervention.
[Def. 56(a)1 Stmt, ¶¶113-114; Pl. 56(a)2 Stmt, ¶¶113-114
(admitted)].
10

Defendant contends that there is no evidence to suggest
that plaintiff suffered any injury, harm, or exacerbation of a
preexisting condition as a result of the missed appointment, and
that in fact plaintiff suffered no such injury, harm or
exacerbation of his spinal condition as a result of the missed
appointment. [Def. 56(a)1 Stmt, ¶¶43-44]. Plaintiff, however,
denies these assertions and contends that as a result of the
missed appointment he has: (1) suffered from agonizing pain; and
(2) lost any possibility of surgical treatment for his
condition, because by the time his appointment was rescheduled,
there was not enough time remaining in his sentence to carry out
the procedure. [Pl. Statement of Material Facts, Doc. #44-1,
¶11; see also Doc. #44-2, Pl. Depo. at 22:5-25, 69:16-25].4
IV.

Discussion
Defendant moves for summary judgment on the following

grounds: (1) plaintiff failed to properly exhaust his
administrative remedies as required by the Prison Litigation
Reform Act of 1996, 42 U.S.C. §1997e(a); (2) there is no genuine
issue of material fact regarding defendant’s alleged deliberate
indifference; and (3) defendant is entitled to qualified
immunity from suit and from any judgment for money damages. See

Consistent with the plaintiff’s briefing, references to the
page numbers of plaintiff’s deposition refer to the numbers set
forth on the deposition transcript, and not the ECF header page
numbers.
4

11

generally Doc. #43-1. Defendant’s second argument, which
directly addresses the substance of plaintiff’s deliberate
indifference claim, contends more specifically that: (a)
defendant knew of no excessive risk to plaintiff’s serious
medical needs; (b) plaintiff’s medical need was not objectively
serious; and (c) plaintiff cannot establish causation of a
legally cognizable injury under the Eighth Amendment. See id. at
17-28. Plaintiff responds: (1) willful ignorance of the facts is
not a defense to a claim of deliberate indifference; (2) casual
observation would have revealed “plaintiff had at a minimum
suffered serious head and facial injuries[;]” (3) medical need
does not need to be “that severe” for application of the Eighth
Amendment’s protections; (4) defendant’s conduct was not
objectively reasonable and therefore qualified immunity does not
apply; and (5) plaintiff exhausted the administrative remedies
available to him. See Doc. #44 at 4-6.
A. Deliberate Indifference Standard
“The Eighth Amendment prohibits the infliction of cruel and
unusual punishments[,] ... [which] includes punishments that
involve the unnecessary and wanton infliction of pain.” Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal
quotation marks and citations omitted) (alterations added). “The
Cruel and Unusual Punishments Clause of the Eighth Amendment
imposes a duty upon prison officials to ensure that inmates
12

receive adequate medical care. Yet not every lapse in medical
care is a constitutional wrong. Rather, ‘a prison official
violates the Eighth Amendment only when two requirements are
met.’” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)
(internal citation omitted) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). “The first requirement is objective: the
alleged deprivation of adequate medical care must be
‘sufficiently serious.’ The second requirement is subjective:
the charged officials must be subjectively reckless in their
denial of medical care.” Spavone v. N.Y. State Dep’t of Corr.
Servs., 719 F.3d 127, 138 (2d Cir. 2013) (internal citations and
quotation marks omitted).
The first requirement is that alleged deprivation of
adequate medical care must be “sufficiently serious.” See id.
This requirement is objective. See id. “A condition is
objectively serious if it poses an unreasonable risk of serious
damage to a prisoner’s future health.” Guilbert v. Sennet, 235
F. App’x 823, 826 (2d Cir. 2007) (internal quotation marks
omitted) (citing Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.
2002)). “Factors relevant to the seriousness of a medical
condition include whether a reasonable doctor or patient would
find it important and worthy of comment, whether the condition
significantly affects an individual’s daily activities, and
whether it causes chronic and substantial pain.” Salahuddin, 467
13

F.3d at 280 (internal quotation marks omitted) (quoting Chance,
143 F.3d at 702). “When the basis for a prisoner’s Eighth
Amendment claim is a temporary delay or interruption in the
provision of otherwise adequate medical treatment, it is
appropriate to focus on the challenged delay or interruption in
treatment rather than the prisoner’s underlying medical
condition alone in analyzing whether the alleged deprivation is,
in objective terms, sufficiently serious, to support an Eighth
Amendment claim.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003) (internal quotation marks and emphasis omitted) (citing
Chance, 143 F.3d at 702).
The second requirement is that the “charged officials must
be subjectively reckless in their denial of medical care.”
Spavone, 719 F.3d at 138 (citation omitted.). This requirement
is subjective, meaning that “the charged official must act with
a sufficiently culpable state of mind.” Id. (citing Wilson v.
Seiter, 501 U.S. 294, 300 (1991)). With respect to the subjective
requirement, the Supreme Court has explained that “a prison
official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
14

Farmer, 511 U.S. at 837. “[D]eliberate indifference describes a
state of mind more blameworthy than negligence.” Id. at 836.
Rather, deliberate indifference is a mental state comparable to
“recklessness as used in the criminal law[.]” Id. at 839.
B. Analysis – Subjective Requirement
Although defendant does not concede that plaintiff can
sustain his burden of proving at trial the objective requirement
under the Second Circuit’s Eighth Amendment analysis, defendant
focuses his arguments on the subjective prong of the two-part
inquiry. See Doc. #42-1 at 17-27. Accordingly, the Court begins
its analysis there.
Defendant first argues that plaintiff cannot demonstrate
that on December 12, 2014, defendant had actual knowledge of an
excessive risk to plaintiff’s serious medical needs, or that
there was a risk so obvious that defendant must have known of
it. See id. at 18. For the reasons set forth below, the Court
finds that defendant has satisfied his summary judgment burden
by pointing to an absence of evidence which would support the
subjective prong of this Circuit’s Eighth Amendment test. See
Garden Catering-Hamilton Ave., LLC v. Wally’s Chicken Coop, LLC,
30 F. Supp. 3d 117, 127 (D. Conn. 2014) (“Where, as here, a
defendant seeks to show that a plaintiff cannot sustain its
burden at trial, the defendant’s burden on summary judgment
‘will be satisfied if he can point to an absence of evidence to
15

support an essential element of the nonmoving party’s claim.’”
(quoting Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 18 (2d Cir. 1995))).
Plaintiff points to no evidence to support a finding that
defendant had actual knowledge of plaintiff’s spinal condition.
Plaintiff specifically testified that he never told defendant
about his medical condition, and that such a subject was “not
something he would discuss with the [defendant].” Doc. #44-2,
Pl. Depo. at 80:6-10. This is consistent with defendant’s
affidavit stating that prior to and during the encounter he had
no knowledge of plaintiff’s medical history, conditions,
treatments or ailments. See Doc. #43-4 at ¶11. Although
plaintiff denies in his response to defendant’s Rule 56
statement that defendant had no knowledge of plaintiff’s medical
condition or treatment, the portion of plaintiff’s deposition
relied upon to refute this fact is inapposite. See Doc. #44-2,
Pl. Depo. at 102:18-22. Indeed, it refers to plaintiff having a
bruised and swollen face on the date in question and does not
address the medical issue actually raised in the Second Amended
Complaint. See generally Doc. #37.5 This is not enough to create
a genuine issue of material fact in light of plaintiff’s
admission in his deposition that defendant had no knowledge of

This new theory of deliberate indifference is further
addressed, infra.
5

16

the specific medical condition underlying the Second Amended
Complaint. Further, it is uncontroverted that defendant did not
know what type of medical appointment plaintiff was scheduled
for on the day in question. See Def. 56(a)1 Stmt, ¶32; Pl.
56(a)2 Stmt, ¶32 (admitted).
Plaintiff responds that defendant’s “willful ignorance of
the facts is no excuse to a claim of deliberate indifference.
Indeed, it is the very definition of deliberate indifference to
know that a prisoner has a medical appointment which the
department considers serious enough to transport him in solo
transport from Newtown to Farmington, yet not to check the
available record to ascertain the nature of the problem.” Doc.
#44 at 4. Notably, plaintiff does not support this argument with
any citation to case law or the record, and the Court finds no
support for it.
First, there is nothing in the record to support a finding
that defendant knew that plaintiff was to be transported “solo.”
Defendant also asserts that on the date in question, December
12, 2014, the nursing staff advised defendant that plaintiff’s
medical appointment could be rescheduled if needed. See Def.
56(a)1 Stmt, ¶30. Although plaintiff asserts that he has no
knowledge of this conversation, he offers nothing to refute this
statement, which goes to defendant’s state of mind on the date
in question. See Smith v. City of N.Y., 388 F. Supp. 2d 179, 182
17

(S.D.N.Y. 2005) (“It is well established, though, that
statements offered for their effect on the listener are nonhearsay.” (citing United States v. Garcia, 900 F.2d 571, 576 (2d
Cir. 1990))). Additionally, a supervisory official, such as
defendant, is “generally entitled to delegate medical
responsibility to medical staffs and [is] entitled to rely on
the opinion of medical staff concerning the proper course of
treatment.” Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 183
(N.D.N.Y. 1996) (collecting cases).
Alternatively, plaintiff contends that “it was obvious even
upon casual observation that the plaintiff had at minimum
suffered serious head and facial injuries, for those were
obvious upon the plaintiff’s face[,]” and therefore “defendant’s
claim of ignorance cannot excuse him here.” Doc. #44 at 4-5
(citing Exhibit A, p. 102). This allegation, “however, is
nowhere to be found in the [Second] Amended Complaint, and an
opposition brief is not the place to raise new allegations.”
Malmsteen v. Universal Music Grp., Inc., 940 F. Supp. 2d 123,
135 (S.D.N.Y. 2013) (internal quotation marks and citation
omitted); see also Lyman v. CSX Transp., Inc., 364 F. App’x 699,
701 (2d Cir. 2010) (affirming district court’s decision to not
consider claims that were raised for the first time in
opposition to a summary judgment motion). The alleged injuries
to plaintiff’s face do not form the basis of plaintiff’s Second
18

Amended Complaint, which raises only plaintiff’s “severe spinal
problems” as the predicate of plaintiff’s deliberate
indifference claim. See Doc. #37, at ¶¶6-8, 16. “Because
[plaintiff] failed to include this claim in his [Second] Amended
Complaint, instead raising it for the first time in opposition
to summary judgment, it is waived.” Malmsteen, 940 F. Supp. 2d
at 135 (collecting cases); see also Bonnie & Co. Fashions v.
Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997) (“[I]t is
inappropriate to raise new claims for the first time in
submissions in opposition to summary judgment.”).6 Accordingly,
“[p]laintiffs cannot survive a summary judgment motion by
contradicting their own pleadings in an effort to raise a
genuine issue of fact. A complaint cannot be amended merely by
raising new facts and theories in plaintiffs’ opposition papers,
and hence such new allegations and claims should not be
considered in resolving the motion.” Southwick Clothing LLC v.
GFT (USA) Corp., No. 99CV10452(GBD), 2004 WL 2914093, at *6
(S.D.N.Y. Dec. 15, 2004) (citations omitted).
However, under Federal Rule of Civil Procedure 15(b),
the Court may consider claims outside those raised in
the pleadings “so long as doing so does not cause
prejudice” to defendants. Cruz v. Coach Stores, Inc.,
202 F.3d 560, 569 (2d Cir. 2000). Accordingly, in
contrast to claims that are “entirely new,” claims that
The Court notes that the missed appointment was with the UConn
Neurosurgery department. It is not clear how a neurosurgery
consultation would have been an appropriate response to facial
cuts and bruises.
6

19

are “related to or are mere variations of previously
pleaded claims ... may be raised on a motion for summary
judgment where the defendant was clearly on notice from
the complaint and was not unfairly prejudiced.” Henry
v. Metro. Transp. Auth., No. 07CV3561 (DAB), 2014 WL
4783014, at *10 (S.D.N.Y. Sept. 25, 2014) (internal
quotation marks and citations omitted); accord Ragusa v.
Malverne Union Free Sch. Dist., 381 F. App’x 85, 89–90
(2d Cir. 2010) (summary order) (district court should
have considered new claim where complaint “was
sufficient
to
place
defendants
on
notice
that
[plaintiff] intended to pursue such an argument”).
Simpson v. Town of Warwick Police Dep’t, 159 F. Supp. 3d 419,
441 (S.D.N.Y. 2016), appeal dismissed (June 15, 2016).
Here, the allegations of the Second Amended Complaint are
insufficient to place defendant on notice that plaintiff
intended to pursue a deliberate indifference claim on the basis
of the “obvious” injuries to plaintiff’s head and face. Any such
injuries are not related to or mere variations of the originally
pleaded injury. Indeed, there is no mention of any facial/head
injuries in the Second Amended Complaint; rather, such injuries
appear to have been referenced only in passing during
plaintiff’s deposition. Defendant would be prejudiced if the
Court were to now consider such a claim. Plaintiff has already
been afforded an opportunity to amend his amended complaint
after defendant had filed a motion for summary judgment. See
Doc. ##28, 33, 36. More significantly, the Second Amended
Complaint, which was filed three months after plaintiff’s May
19, 2016, deposition, at which the facial injuries were

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discussed, failed to include any allegations relating to any
facial/head injuries. This is now the second motion for summary
judgment filed by defendant, and if the Court were to consider
this new theory of deliberate indifference, then presumably,
defendant would seek to file a third motion for summary judgment
and/or a motion for leave to conduct further discovery on this
issue. This simply is not a reasonable demand for the plaintiff,
or the Court, to make of defendant at this juncture in the case.
To establish the subjective prong of the deliberate
indifference standard, plaintiff must prove that defendant had
actual knowledge of an excessive risk to inmate health or
safety, or that such risk was so obvious that the official must
have known it. See Brock v. Wright, 315 F.3d 158, 164 (2 Cir.
2003); Farmer, 511 U.S. at 842. Here, defendant has sustained
his summary judgment burden by pointing to an absence of
evidence which would support the subjective requirement of
plaintiff’s Eighth Amendment claim. See Wally’s Chicken Coop, 30
F. Supp. 3d at 127; see also id. (“[A] complete failure of proof
concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” (citing
Celotex, 477 U.S. at 323)); Tyus v. Newton, No.
3:13CV01486(SRU), 2016 WL 6090719, at *3 (D. Conn. Oct. 18,
2016) (“If the nonmoving party has failed to make a sufficient
showing on an essential element of his case with respect to
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which he bears the burden of proof, then summary judgment is
appropriate.” (citing Celotex, 477 U.S. at 322)). Therefore, the
Court GRANTS defendant’s Second Motion for Summary Judgment. In
light of this conclusion, the Court need not address the other
arguments raised by defendant.
V.

Conclusion
Therefore, for the reasons stated, defendant’s Second

Motion for Summary Judgment [Doc. #43] is GRANTED. The Clerk of
the Court is directed to enter judgment in favor of the
defendant.
This is not a Recommended Ruling. The parties consented to
proceed before a United State Magistrate Judge on May 10, 2016
[Doc. #23], with any appeal to be made directly to the Court of
Appeals. See Fed. R. Civ. P. 73(b)-(c).
SO ORDERED at New Haven, Connecticut, this 17th day of
February 2017.

______/s/____________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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