Hall v. Pillai et al

Filing 43

ORDER: The defendants' Motion for Summary Judgment (Doc. No. 37 ) is hereby GRANTED as to the claim against Dr. Pillai and DENIED as to the claim against defendants Lightner and Dolan. Signed by Judge Alvin W. Thompson on 4/10/18. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RONALD HALL,
Plaintiff,
v.
PILLAI, et al.,
Defendants.

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Civil No. 3:15-cv-1603(AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Ronald Hall, commenced this civil rights
action pro se.

The defendants, Dr. Omprakash Pillai, Health

Services Administrator Rikal Lightner and Nursing Supervisor
Erin Dolan, have moved for summary judgment.

For the reasons

that follow, the motion for summary judgment is being granted as
to the claim against defendant Pillai and denied as to the claim
against defendants Lighter and Dolan.
I.

LEGAL STANDARD
A motion for summary judgment may be granted only where

there are no issues of material fact in dispute and the moving
party is therefore entitled to judgment as a matter of law.
Rule 56(a), Fed. R. Civ. P.; Redd v. New York Div. of Parole,
678 F.3d 166, 173-74 (2d Cir. 2012).

“When the nonmoving party

will bear the burden of proof at trial, the moving party can
satisfy its burden at summary judgment by ‘pointing out to the
district court’ the absence of a genuine dispute with respect to

any essential element of its opponent’s case: ‘a complete
failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts
immaterial.’”

Cohane v. National Collegiate Athletic Ass’n, 612

F. App’x 41, 43 (2d Cir. 2015) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).

Once the moving party meets

this burden, the nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Goord, 554 F.3d 255, 266 (2d Cir. 2009).

Wright v.

He cannot “‘rely on

conclusory allegations or unsubstantiated speculation’ but ‘must
come forward with specific evidence demonstrating the existence
of a genuine dispute of material fact.’”

Robinson v. Concentra

Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation
omitted).

He must present such evidence as would allow a jury

to find in his favor in order to defeat the motion for summary
judgment.
2000).

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.

Although the court reads pro se papers liberally and

interprets them to raise the strongest arguments they suggest,
Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015),
“unsupported allegations do not create a material issue of fact”
and are insufficient to oppose a properly supported motion for
summary judgment.

Weinstock v. Columbia Univ., 224 F.3d 33, 41

(2d Cir. 2000).

2

II.

FACTS1
The plaintiff’s claims concerns the period between October

30, 2012, and June 2014.

See Am. Compl., ECF No. 10-2 at 3.

In

his deposition, the plaintiff conceded that any issues arising
after June 2014 were quickly resolved to his satisfaction.
Defendant Lightner, a Health Services Administrator,
supervises medical staff and nurses who provide support for the
doctors at MacDougall-Walker Correctional Institution
(“MacDougall”).

Her subordinates include those persons who

collect Inmate Request and Health Services Review Forms, triage
these forms, schedule appointments and provide medical
treatment.
MacDougall.

Defendant Dolan is a nursing supervisor at
Neither defendant Dolan nor defendant Lightner

typically provide direct patient care.

1

The facts are taken from the defendants’ Local Rule 56(a)
Statements and exhibits. Local Rule 56(a)2 requires the party opposing
summary judgment to submit a Local Rule 56(a)2 Statement which
contains separately numbered paragraphs corresponding to the Local
Rule 56(a)1 Statement and indicates whether the opposing party admits
or denies the facts set forth by the moving party. Each admission or
denial must include a citation to an affidavit or other admissible
evidence. In addition, the opposing party must submit a list of
disputed factual issues. D. Conn. L. Civ. R. 56(a)2 and 56(a)3.
Although the defendants informed the plaintiff of this requirement,
ECF No. 37-5, he has not submitted a Local Rule 56(a)2 Statement.
Accordingly, the defendants’ facts are deemed admitted. See D. Conn.
L. Civ. R 56(a)1 (“Each material fact set forth in the Local Rule
56(a)1 Statement and supported by the evidence will be deemed admitted
(solely for purposes of the motion) unless such fact is controverted
by the Local Rule 56(a)2 Statement required to be filed and served by
the opposing party in accordance with this Local Rule, or the Court
sustains an objection to the fact.”).

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Any inmate dissatisfied with a diagnosis or treatment, may
request a Health Services Review.

Once a Health Services Review

Form is properly filed, an appointment will be scheduled with a
doctor as soon as possible at no cost to the inmate to determine
what action, if any, should be taken.

If the doctor decides

that the existing diagnosis or treatment is appropriate, the
inmate will have exhausted the health services review process.
The doctor will make an entry in the inmate’s medical records
describing the visit as a Health Services Review Appointment and
noting the results of the visit.
During the relevant time period, defendant Pillai and other
medical providers at MacDougall, prescribed pain medication for
the plaintiff to address neck pain and diabetic neuropathy in
his feet.

The prescribed medications included prescription

strength Motrin, Tylenol, Naproxen, Topamax, Elavil and
Baclofen.

The plaintiff was permitted to keep the Motrin and

Tylenol on his person; he was given a certain number of pills to
take as needed.
At times, the plaintiff reported to nursing staff that his
supply of Motrin and/or his Naproxen had run out or was running
out.

The plaintiff was never entirely without pain medication

at any time during the period relevant to this action, from
December 2012 until he was transferred to a different
correctional facility in 2015.

He received Elavil on a daily
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basis during this entire period.

Defendant Dolan told the

plaintiff to submit his requests for refills 3-5 days before he
would run out to lessen the chance of a gap in medication.
During the time relevant to this action, defendant Hall did
not submit any Health Services Review Forms relating to the type
of pain medication he was receiving.

He did submit three Health

Services Review Forms, i.e. in January 2014, May 2014 and
January 2015, relating to the timing of refills.
Dolan answered the January 2015 request.

Defendant

Her response indicated

that the issue had been resolved before she received the form
and that the plaintiff was satisfied with the result.
The January 2014 and May 2014 Health Services Review Forms
were returned without disposition because the plaintiff had not
properly utilized the informal review process before submitting
the forms.
ignored.

None of the plaintiff’s Inmate Request Forms were
If one had been ignored, that would be a legitimate

ground for a Health Services Review.
Dr. Pillai regularly treated the plaintiff for a variety of
conditions including a complaint of neck pain relating to an
incident prior to his incarceration.

During the relevant time

period, Dr. Pillai first examined the plaintiff on December 7,
2012.

Dr. Pillai noted complaints of migraines and neck pain

resulting from degenerative joint disease.

The plaintiff also

reported a history of diabetic neuropathy that was helped by
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Elavil.

Dr. Pillai had previously ordered x-rays which

confirmed the degenerative joint disease at C5-6 and C6-7.

Dr.

Pillai recommended that the plaintiff perform range of motion
exercises for his neck.

He prescribed Motion as needed for

thirty days and Elavil for six months.
On January 14, 2013, Dr. Pillai reordered the Motrin for
two months.

He also increased the dosage of Elavil in response

to the plaintiff’s complaint that the Elavil helped but did not
help enough.

On March 22, 2013, Dr. Pillai reordered the Motrin

for three months to be taken on an as needed basis.

On July 1,

2013, Dr. Pillai reordered the Motrin for thirty days and again
increased the dosage of Elavil.
Dr. Pillai next met with the plaintiff on August 12, 2013.
They discussed the side effects of Motrin and agreed to try
Tylenol for three months.

On October 23, 2013, Dr. Pillai saw

the plaintiff for a follow-up visit.

The plaintiff complained

of neck pain radiating over his right shoulder and reported that
he had tried many types of pain medication in the past without
significant relief.

Dr. Pillai noted that the plaintiff had

tried NSAIDs, Tylenol, Elavil, Neurontin and Flexeril without
relief.

The plaintiff told Dr. Pillai that a surgeon in the

community had prescribed Topamax, Naproxen and Soma and that
these medications had afforded some relief.

Dr. Pillai and the

plaintiff discussed a plan to try these medications for two
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weeks.

Topamax and Soma are non-formulary drugs.

Dr. Pillai

could not prescribe them without approval.
On October 24, 2013, Dr. Pillai prescribed Naproxen as
needed for three months and ordered Topamax for one week.

On

November 1, 2013, after receiving approval, Dr. Pillai
prescribed Topamax for eight months, until June 10, 2014.

He

also prescribed Soma.
On January 10, 2014, the plaintiff’s Elavil dosage was
again increased.

On February 5, 2014, Dr. Pillai prescribed

Naproxen for three months.

On May 6, 2014, Dr. Pillai extended

the prescription until June 30, 2014.
On June 10, 2014, Dr. Pillai met with the plaintiff for a
follow-up regarding neck pain.

The plaintiff had not received

the two week trial of Soma due to an oversight by pharmacy or
medical staff.

Naproxen, Elavil and Topamax helped with the

plaintiff’s symptoms but did not entirely relieve them.

Dr.

Pillai recommended, and the plaintiff agreed, to replace Soma
with Baclofen, which was less addictive and taken daily.

On

June 11, 2014, Dr. Pillai prescribed Baclofen for three days.
On June 14, 2014, he increased the dosage for another three
days.

On June 17, 2014, Dr. Pillai increased the Baclofen

prescription to the desired dosage and prescribed it for three
months.

Dr. Pillai also extended the prescriptions for Topamax,

Naproxen and Elavil.

In September 2014, Dr. Pillai extended the
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Baclofen prescription for another six months.
Dr. Pillai last saw the plaintiff on December 15, 2014.
The plaintiff continued to complain of neck pain.

Treatment

with Naproxen, Topamax, Elavil and Baclofen was continued until
the plaintiff transferred to another correctional facility in
April 2015.
III. DISCUSSION
In the Initial Review Order relating to the Amended
Complaint, the court concluded that the plaintiff had alleged
sufficient facts to state a claim for deliberate indifference to
serious medical needs based on his allegations that his
prescribed pain medication was replaced with an antiinflammatory and his complaints of pain were ignored.

See ECF

No. 11 at 5.
The defendants move for summary judgment on three grounds.
First, they argue that the plaintiff has not exhausted his
administrative remedies.

Second, the defendants contend that

the plaintiff has not demonstrated the personal involvement of
supervisory defendants Lightner and Dolan.

Third, they argue

that they were not deliberately indifferent to a serious medical
need.
A.

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act requires prisoners to
exhaust administrative remedies before filing a federal lawsuit
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relating to prison conditions.

42 U.S.C. § 1997e(a) (“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.”).

This exhaustion requirement applies to all claims

regarding “prison life, whether they involve general
circumstances or particular episodes.”

Porter v. Nussle, 534

U.S. 516, 524, 532 (2002).
Exhaustion of all available administrative remedies must
occur regardless of whether the administrative procedures
provide the relief that the inmate seeks.
532 U.S. 731, 741 (2001).

See Booth v. Churner,

Furthermore, prisoners must comply

with all procedural rules regarding the grievance process prior
to commencing an action in federal court.

See Woodford v. Ngo,

548 U.S. 81, 90-91, 93 (2006) (proper exhaustion “means using
all steps that the agency holds out ... (so that the agency
addresses the issues on the merits) ... [and] demands compliance
with agency deadlines and other critical procedural rules”).
Completion of the exhaustion process after a federal action has
been filed does not satisfy the exhaustion requirement.

See

Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), overruled on
other grounds by Porter, 534 U.S. 516 (2002).

Special

circumstances will not relieve an inmate of his or her
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obligation to adhere to the exhaustion requirement.

An inmate’s

failure to exhaust administrative remedies is only excusable if
the remedies are in fact unavailable.

See Ross v. Blake, ___

U.S. ___, 136 S. Ct. 1850, 1858 (2016).
The administrative remedies for the State of Connecticut
Department of Correction are set forth in Administrative
Directive 9.6, entitled Inmate Administrative Remedies and may
be found at: http://www.ct.gov/doc (effective August 15, 2013).
Section 4(L) provides that a request for review of any matter
relating to health care services is filed pursuant to Directive
8.9, entitled Administrative Remedy for Health Services, found
at: http://www.ct.gov/doc (effective July 24, 2012).
The inmate must first attempt to seek informal resolution
of the complaint face to face with the appropriate staff member
or in writing with a supervisor.

A response should be issued

within fifteen days from the receipt of a written request.
Section 8.9(10).

If the inmate is not satisfied with his

diagnosis or treatment and informal resolution was not
successful, he may seek an administrative remedy by filing form
CN 9602 and checking the “Diagnosis/Treatment” box and
explaining concisely the nature of his dissatisfaction.
8.9(11).

Section

Upon receipt of the form, the Health Services Review

Coordinator will schedule a Health Services Review Appointment
with a physician as soon as possible to determine what action,
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if any, should be taken.

The appointment is entered in the

inmate’s medical records as a Health Services Review
Administrative Remedy appointment.

If the reviewing physician

determines that the existing diagnosis or treatment is
appropriate, the inmate has exhausted the health services
review.

Section 8.9(11)(A).

A log and file of every Health Services Review request and
appeal shall be maintained by the Health Services Review
Coordinator.

Section 8.9(13)(A) & (B).

The defendants have submitted the affidavit of defendant
Lightner, who states that she is the ultimate custodian of
medical records at MacDougall.

Defendant Lightner states that

she has reviewed all medical records, grievance logs and inmate
requests of the plaintiff from October 2012 until his transfer
from MacDougall in 2015.

The records show that the plaintiff

did not submit any Health Services Review forms regarding the
type of medication he was prescribed.

The records contain three

Health Services Review forms regarding the timing of
prescription refills.

Forms submitted in January 2014 and May

2014 were returned to the plaintiff without disposition because
he did not first attempt informal resolution.

Defendant Dolan

responded to the January 2015 form, and her response indicated
that the issue had been resolved before the form reached her.
The plaintiff has not responded to the motion for summary
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judgment and, thus, has submitted no evidence that he submitted
any other Health Services Review forms relating to these issues.
The plaintiff has two deliberate indifference claims.

The

first claim, directed only to Dr. Pillai, relates to the type of
medication prescribed to the plaintiff.

As he filed no Health

Services Review on that issue, the plaintiff has not exhausted
his administrative remedies with regard to the first claim.
The second claim is that the plaintiff was not timely
provided refills of prescriptions.

The plaintiff does not

provide any specific dates in his amended complaint.

He alleges

only that the problems with expired prescriptions occurred
between October 2012 and June 2014, and that he notified
defendants Lightner and Dolan about the problems but they did
nothing.

Doc. #10-2 at 3-4.

Defendant Lightner states that the plaintiff filed only
three Health Services Review forms on this issue.

The forms

from January 2014 and May 2014 were returned without disposition
for failure to comply with the required procedures.

Thus, the

plaintiff has not exhausted his administrative remedies with
regard to the incidents included on those forms.
The plaintiff properly submitted a Health Services Review
form in January 2015.

The form was referred to defendant Dolan,

but her response indicated that the issue was resolved before
she received the form.

As the issue was resolved, the court
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concludes that the plaintiff exhausted his administrative
remedies with regard to the incident underlying the January 2015
form.
B.

Personal Involvement

Defendants Lightner as Health Services Administrator and
Dolan as Nursing Supervisor are supervisory officials.

They do

not routinely provide direct patient care.
To state a claim for supervisory liability, the plaintiff
must demonstrate that the defendants (1) actually and directly
participated in the alleged constitutional violation; (2) failed
to remedy a wrong after being informed of it though a report or
appeal; (3) created or approved a policy or custom that
sanctioned objectionable conduct that rose to the level of a
constitutional violation, or permitted such a policy or custom
to continue; (4) were grossly negligent in their supervision of
the officers who committed the constitutional violation; or (5)
were deliberately indifferent to the plaintiff's rights by
failing to act in response to information that unconstitutional
acts were occurring.

See Shaw v. Prindle, 557 F. App’x 71, 73

(2d Cir. 2014) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)); see also Shakir v. Derby Police Dep’t, 284 F. Supp.
3d 165, 184 (D. Conn. Jan. 5, 2018) (following Colon because,
although the Supreme Court may have heightened pleading
requirements for supervisory liability, Second Circuit has not
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rejected standard in Colon); Stephens v. Venettozzi, No. 13-CV5779(RA)(DF), 2016 WL 929268, at *12 (S.D.N.Y. Feb. 24, 2016)
(noting that in context of Bivens claim, Second Circuit has held
that “regardless of the description applied to a particular
theory or type of conduct, supervisory liability is permissible
where, and only where, the defendant’s conduct itself ‘reflects
the elements of the underlying constitutional tort.’” (quoting
Turkmen v. Hasty, 789 F.3d 218, 250 (2d Cir. 2015)).
The plaintiff alleges2 that, between October 2012 and June
2014, he informed defendants Lightner and Dolan, both verbally
and in writing, when his prescriptions expired but they did
nothing.

ECF No. 10-2 at 3.

The court concludes that the

plaintiff is asserting a claim, under the second Colon category,
that defendants Lightner and Dolan failed to remedy the problem
after being informed of it though reports.
The only remaining claim is the delay in refill or renewal
underlying the January 2015 Health Services Review form.

As

neither party has submitted the form, the court cannot identify
the date on which the plaintiff claims his prescription was not
promptly refilled or renewed.

In addition, Directive 8.9 does

As the complaint is sworn under penalty of perjury, the court
considers it as an affidavit in opposition to the motion for summary
judgment. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“A
verified complaint is to be treated as an affidavit for summary
judgment purposes, and therefore will be considered in determining
whether material issues of fact exist, provided that it meets the
other requirements of an affidavit….”).
2

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not include in the procedures for filing Health Services Review
forms any requirement that the form be filed within a certain
number of days after the incident.

See Directive 8.9 (10) (no

time limits for informal resolution) & (11) (time limits only
for responses to Health Services Review forms).
Defendant Dolan has not submitted an affidavit in support
of the motion for summary judgment.

Defendant Lightner

acknowledges in her affidavit that both she and defendant Dolan
were made aware at various times that the plaintiff’s
prescriptions had run out.

See ECF No. 37-4 at 4, ¶24.

The

defendants have not submitted a copy of the plaintiff’s medical
records to confirm the dates on which he complained about his
medication renewals or any information regarding when they
became aware of the issues.
Absent such evidence, the court cannot determine whether
defendants Lightner and Dolan were aware of the incident
underlying the January 2015 Health Services Review form prior to
resolution of the issue.

Thus, the defendants’ motion for

summary judgment on the ground that defendants Dolan and
Lightner were not personally involved is being denied.
C.

Deliberate Indifference to a Serious Medical Need

The defendants argue that they were not deliberately
indifferent to a serious medical need.

As the plaintiff has not

exhausted his administrative remedies with regard to any of the
15

claims against Dr. Pillai, the court need consider only whether
defendants Lightner and Dolan were deliberately indifferent to
the plaintiff’s medical needs.
The Eighth Amendment forbids deliberate indifference to
serious medical needs of prisoners.”

Spavone v. N.Y. State

Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(internal quotation marks and citation omitted). To establish a
claim for deliberate indifference to a serious medical need, the
plaintiff must allege facts demonstrating two elements.
The first element is objective; “the alleged deprivation of
adequate medical care must be sufficiently serious.”
Id. (internal quotation marks omitted).

Under this objective

element, a court must determine first, “whether the prisoner was
actually deprived of adequate medical care,” and second,
“whether the inadequacy in medical care is sufficiently
serious.”
2006).

Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir.

The defendants concede that the plaintiff suffers from

degenerative changes in his cervical vertebrae and has a history
of diabetic neuropathy.
address these issues.

He takes strong pain medication to
Although the defendants state that the

plaintiff suffered “from mild degenerative changes,” ECF No. 371 at 10, they do not argue that the plaintiff’s medical needs
were not serious.

Thus, the court assumes, for purposes of this

motion, that the plaintiff has a serious medical need.
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The second element is subjective; the defendants “must be
subjectively reckless in their denial of medical care.”
Spavone, 719 F.3d at 138.

The inquiry is whether each defendant

“has knowledge that an inmate faces a substantial risk of
serious harm and ... disregards that risk by failing to take
reasonable measures to abate the harm.”

Lewis v. Swicki, 629 F.

App'x 77, 79 (2d Cir. 2015) (quoting Farmer v. Brennan, 511 U.S.
825, 837-38 (1994)) (internal quotation marks omitted).

The

defendants must have acted or failed to act “while actually
aware of a substantial risk that serious inmate harm will
result.”

Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014)

(internal quotation marks omitted).
The plaintiff alleges that, after informing defendants
Lightner and Dolan of his issues, nothing was done and he often
was left in severe pain without medication for weeks.
No. 10-2 at 3-4.

See ECF

Defendant Lightner, on the other hand, states

in her affidavit that the plaintiff’s requests to her or
defendant Dolan about the timing of medication refills “were
always addressed promptly.”

ECF No. 37-4 at 5, ¶36.

These

contradictory statements, neither of which is supported by
documentary evidence, create a genuine issue of material fact
with respect to the subjective component of the deliberate
indifference standard, which must be resolved at trial.

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Thus,

the defendants’ motion for summary judgment is being denied as
to defendants Lightner and Dolan.
III. CONCLUSION
The defendants’ motion for summary judgment [ECF No. 37] is
hereby GRANTED as to the claim against Dr. Pillai and DENIED as
to the claim against defendants Lightner and Dolan.
It is so ordered.
Signed this 10th day of April 2018 at Hartford,
Connecticut.
____________/s/AWT__________
Alvin W. Thompson
United States District Judge

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