Dorlette v. Wu et al

Filing 55

RULING AND ORDER granting 44 Motion for Summary Judgment: For the reasons explained in the attached Ruling and Order, Defendants' motion for summary judgment is GRANTED, and Plaintiff's deliberate indifference claims are DISMISSED. The Clerk of the Court is respectfully directed to enter judgment for Defendants and to close this case. Signed by Judge Victor A. Bolden on 3/20/2019. (Baran, Hugh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
FAROULH DORLETTE,
Plaintiff,
No. 3:16-cv-318 (VAB)

v.
JOHNNY WU and JAMES SMYTH,
Defendants.

RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
On February 25, 2016, Faroulh Dorlette (“Plaintiff”), currently incarcerated by the
Connecticut Department of Corrections (“DOC”), sued Johnny Wu and James Smyth
(“Defendants”) for violating his civil rights by failing to order him prescription eyeglasses.1
Complaint, dated Feb. 25, 2016 (“Compl.”), ECF No. 1.
On August 21, 2017, Mr. Dorlette filed an Amended Complaint. Amended Complaint,
dated Aug. 21, 2017 (“Am. Compl.”), ECF No. 26. On October 12, 2017, the Court permitted an
Eighth Amendment deliberate indifference to medical needs claim against Defendants to
proceed. Ruling on Defendants’ Motion to Dismiss and Initial Review Order Re: Plaintiff’s
Amended Complaint, dated Oct. 12, 2017 (“Ruling and Init. Rev. Order on Am. Compl.”), ECF
No. 30.
On May 21, 2018, Defendants moved for summary judgment on all claims in the
Amended Complaint. Motion for Summary Judgment, dated May 21, 2018 (“Mot. Summ. J.”),
ECF No. 44; Memorandum of Law in Support of Mot. Summ. J., dated May 21, 2018 (“Defs.’
Mem.”), ECF No. 44-1; Local Rule 56(a)(1) Statement (“Defs.’ SMF”), ECF No. 44-2.

1

Mr. Dorlette is proceeding pro se. On March 1, 2016, Magistrate Judge William I. Garfinkel granted Mr. Dorlette
leave to proceed in forma pauperis. Order, dated Mar. 1, 2016, ECF No. 6.

On August 31, 2018, Mr. Dorlette opposed the motion. Plaintiff’s Memorandum of Law
in Opposition to Mot. Summ. J., dated Aug. 31, 2018 (“Pl.’s Opp.”), ECF No. 52; Local Rule
56(a)(2) Statement, dated Aug. 31, 2018 (“Pl.’s SMF”), annexed to Pl.’s Opp. at 31.
For the reasons explained below, Defendants’ motion is GRANTED, and Plaintiff’s
claims are DISMISSED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Before March 15, 2016, Mr. Dorlette was incarcerated by DOC at the MacDougall-

Walker Correctional Institution (“MacDougall-Walker”). On March 16, 2016, he was transferred
to Corrigan-Radgowski Correctional Center (“Corrigan”). Defs.’ SMF ¶ 2. He has been
transferred to several other facilities in both Vermont and Connecticut while this case has been
pending, see ECF Nos. 8, 15, 23, 27 & 35, but remains in DOC custody at this time.2
Dr. Smyth is an optometrist employed by Correctional Managed Health Care (“CMHC”)
since 2003. Affidavit of James Smyth, dated May 21, 2018 (“Smyth Aff.”), annexed as Ex. G to
Defs.’ SMF, ECF No. 44-10. He allegedly worked at four correctional facilities: MacDougallWalker, Osborn Correctional Institution, Northern Correctional Institution, and Enfield
Correctional Institution. Id. ¶ 6.
Dr. Wu is a physician and was the Director of Medical Services for CMHC from June
2012 to March 2017. Affidavit of Johnny Wu, dated May 21, 2018 (“Wu Aff.”), annexed as Ex.
J to Defs.’ SMF, ECF No. 44-13, ¶¶ 2–3.
CMHC is a division of the University of Connecticut Health Center that manages a
contract to provide medical care to DOC inmates. Id. ¶ 4.

2

In a March 14, 2019 telephone conference in another case currently before this Court, Mr. Dorlette reported a
recent transfer to the Garner Correctional Institution in Newtown, Connecticut. See Dorlette v. Iozia, No. 3:16-cv1882 (VAB), ECF No. 47.

2

A. Factual Allegations
On July 28, 2015, Mr. Dorlette (then an inmate at MacDougall-Walker) submitted a
written request for an eye exam and prescription eyeglasses. Defs.’ SMF ¶ 4; Pl.’s SMF ¶ 4. In
that request, Mr. Dorlette wrote:
I would like a new eye exam. I am having eye pain and I believe the
pain is a result of not having glasses (my vision is at least as bad as
20/800 as I am near-sighted; however I am also experiencing blurry
vision and double vision, plus strain and head-aches when
attempting to read and/or write). I would like to get new glasses.
Thank you.
Inmate Request, dated Jul. 28, 2015, annexed as Ex. D to Defs.’ SMF (“Defs.’ Ex. D”), ECF No.
44-7.
On August 5, 2015, Mr. Dorlette was scheduled for an eye exam. Defs.’ SMF ¶ 5; Pl.’s
SMF ¶ 5; see also Defs.’ Ex. D (stating “Eye Exam Scheduled,” signed and dated 8/5/2015).
On August 11, 2015, Mr. Dorlette had his eyes examined by Dr. Smyth. Defs.’ SMF ¶ 1;
Pl.’s SMF ¶ 1; Smyth Aff. ¶ 10. Although he had been prescribed eyeglasses in the past, Mr.
Dorlette arrived at his appointment with Dr. Smyth without eyeglasses or contact lenses. Defs.’
SMF ¶ 6; Pl.’s SMF ¶ 6; Smyth Aff. ¶ 11.
In his Amended Complaint, Mr. Dorlette alleged: (1) that he informed Dr. Smyth that his
glasses were missing and that DOC staff were responsible, Am. Compl. ¶ 10; (2) that he
informed Dr. Smyth that he was in “extreme pain in his eyes and experiencing headaches and
difficulty reading, writing, being mobile, etc.,” id. ¶ 11; (3) that Dr. Smyth confirmed these were
expected symptoms from Mr. Dorlette not having his glasses, id. ¶ 12; (4) that Dr. Smyth has
been conducting regular eye exams of Mr. Dorlette since 2005, id. ¶¶ 13–14; (5) that Dr. Smyth
“had identified the plaintiff’s vision as near-sighted and to be 20/800, which is ‘nearly blind,’”
id. ¶ 9; (6) that Dr. Smyth was responsible for ordering him new glasses but failed to do so,

3

causing him “to suffer for several months,” id. ¶ 15; and (7) that Mr. Dorlette sent Dr. Smyth
several requests “expressing his continued experience of pain (eye and head-aches) and other
disabilities, such as inability to read, write, etc.,” but that Dr. Smyth failed to act on them,
knowingly allowing Mr. Dorlette to suffer in violation of his Eighth Amendment rights, id. ¶ 16.
In an affidavit opposing summary judgment, Mr. Dorlette now states that he explained to
Dr. Smyth that his eyeglasses had been missing for weeks in connection with an incident at
Corrigan-Radgowski Correctional Center (“Corrigan”) in Uncasville, Connecticut. Affidavit of
Faroulh Dorlette, dated Aug. 31, 2018 (“Pl.’s Aff.”), annexed to Pl.’s Opp. at 43, ¶ 5. Mr.
Dorlette allegedly told Dr. Smyth that he had been suffering from double and blurry vision,
migraines, difficulty reading, and sensitivity to light due to the absence of his eyeglasses. Pl.’s
Aff. ¶¶ 5, 10, 12. Mr. Dorlette claims that Dr. Smyth confirmed to him that these were all
symptoms associated with not wearing his glasses and that once he received the glasses, his
headaches and eye-aches should dissipate. Id. ¶ 12. Mr. Dorlette further claims Dr. Smyth
“shined a light in my eyes which cause[d] me pain and to flinch and which [Dr.] Smyth
characterized as sensitivity.” Id. Mr. Dorlette claims that he asked Dr. Smyth to order him the
same style of glasses that he had previously been issued, and that he also asked him for a copy of
his prescription. Pl.’s Aff. ¶ 15. Mr. Dorlette alleges that Dr. Smyth gave him that prescription,
but did not inform him he would not also be ordering him a state-issued pair of glasses. Id.
After the appointment, Mr. Dorlette claims that he made multiple inmate requests and
administrative grievances regarding the status of his eyeglasses. Pl.’s Aff. ¶¶ 10, 11, 14, 17; see
Pl.’s Exs. 3-8, annexed to Pl.’s Opp., ECF No. 52, at 52–61. One of these, he claims, was
addressed to Dr. Wu on October 27, 2015.3 Pl.’s Aff. ¶ 17.

3

The alleged complaint to Dr. Wu is illegible as scanned and filed with the Court. See Ex. 6 to Pl.’s Opp., ECF No.
52, at 58.

4

Defendants dispute these accounts. Dr. Smyth claims that he did not observe anything
abnormal about Mr. Dorlette’s eyes that would have alerted him to pain or anything requiring
immediate action. Smyth Aff. ¶¶ 15, 17. Although Mr. Dorlette may have experienced difficulty
seeing distant objects, Dr. Smyth did not consider him to be nearly blind, and Mr. Dorlette could
still read information in close proximity. Id. ¶ 16. He also claims that Mr. Dorlette “did not
complain of pain.” Id. ¶ 17.
Dr. Smyth contends that he recommended a follow-up appointment in two years and
explained that, under DOC policy, “the state will not supply eyeglasses if an inmate has asked
for the prescription to have eyeglasses mailed into the facility” and that Mr. Dorlette would need
to “choose either state issued eyeglasses or eyeglasses from outside of the facility[.]” Smyth Aff.
¶¶ 19, 24. He says Mr. Dorlette elected to obtain his glasses from outside DOC using the written
prescription Dr. Smyth gave him; as a result, he “did not have him select an eyeglass frame or fit
him for eyeglasses provided by” DOC. Smyth Aff. ¶ 34.
Dr. Smyth allegedly wrote down giving Mr. Dorlette the prescription. Smyth Aff. ¶ 25.
Those notes do not indicate any report of eye pain or other symptoms, but simply include the
results of the eye exam and state that “Rx given to inmate for personal glasses.” See Ex. A to
Defs.’ SMF, filed Feb. 26, 2019 (“Medical Records”), ECF No. 54, at 084. They also do not
indicate that Mr. Dorlette selected any frame, or that any order was placed. Id.
Dr. Smyth claims that, following the appointment, no one ever contacted him about Mr.
Dorlette’s prescription. Smyth Aff. ¶¶ 27–28. He claims not to have handled inmate request
forms personally; instead, the nursing staff processed the forms and placed inmates on the sick
call list. Id. ¶ 33.

5

Dr. Wu, the other Defendant in this case, allegedly never examined Mr. Dorlette. Defs.’
SMF ¶ 38; Pl.’s SMF ¶ 28. He allegedly has no knowledge of any issues regarding the ordering
or delivery of Mr. Dorlette’s eyeglasses, and allegedly never received any correspondence from
Mr. Dorlette regarding any medical issues. Wu Aff. ¶¶ 10–14.
Rikel Lightner, a Registered Nurse and the Health Services Administrator at
MacDougall-Walker—and ultimate custodian of medical records there—states that there is no
record of any Inmate Requests or Health Services Reviews concerning Mr. Dorlette’s eyeglasses
prescription or vision problems after July 28, 2015. Affidavit of Rikel Lightner, dated May 21,
2018 (“Lightner Aff.”), annexed as Ex. B to Defs.’ SMF, ¶¶ 24–26; see also Defs.’ Ex. D;
Inmate Requests, annexed as Ex. E to Defs.’ SMF (“Defs.’ Ex. E”), ECF No. 44-8.
On March 16, 2016, Mr. Dorlette was transferred to Corrigan. Defs.’ SMF ¶ 2.
On April 12, 2016, Mr. Dorlette submitted an Inmate Request stating that he had been
“writing follow-up requests regarding the ordering of state glasses” and requesting: (1) that
glasses be made and sent to him; and (2) that he be scheduled to speak with an eye surgeon to
determine whether he was a candidate for eye surgery. Inmate Request Form, dated Apr. 12,
2016, annexed as Ex. 8 to Pl.’s Opp., ECF No. 52, at 61. In that form, he stated that his eyes
were “noticeably straining and causing me migraines and other pains including obstruction and
or interference with reading and writing, etc., and nausea” and that he was “experiencing
humiliation and psychic trauma with people making fun of my lazy eyes, etc.” Id.
On April 20, 2016, Mr. Dorlette allegedly was “scheduled to see the eye doctor” at
Corrigan. Id.
On April 26, 2016, Mr. Dorlette had his eyes examined by a provider at Corrigan.
Medical Records at 082. That provider (whose name does not appear in this record) wrote out a

6

Physician’s Order for a pair of glasses of the lens type and style “High Index Plastic.” Id. The
glasses were shipped by Masscor/Optical Division on May 13, 2016. Id. at 083. Later that month,
Mr. Dorlette received state-issued eyeglasses. Pl.’s Aff. ¶ 19.
B. Procedural History
On February 25, 2016, Mr. Dorlette sued the Defendants under 42 U.S.C. § 1983, and
alleged violations of the Fourteenth and Eighth Amendments to the U.S. Constitution. Compl.
On March 1, 2016, Magistrate Judge William I. Garfinkel granted Mr. Dorlette leave to
proceed in forma pauperis. Order, dated Mar. 1, 2016, ECF No. 6.
On October 19, 2016, the Court issued an Initial Review Order under 28 U.S.C. § 1915A.
Initial Review Order, dated Oct. 19, 2016, ECF No. 9. The Court dismissed Mr. Dorlette’s
claims under the Fourteenth Amendment, and his claim for money damages, but allowed his
Eighth Amendment claim of deliberate indifference to medical needs to proceed against
Defendants in their individual and official capacities. Id. at 5.
On March 27, 2017, Defendants moved to dismiss the Complaint. Motion to Dismiss,
dated Mar. 27, 2017, ECF No. 22.
On June 15, 2017 and July 11, 2017, the Court extended Mr. Dorlette’s deadline to
respond to the motion in light of his recent transfer to a different DOC facility and change of
address. Orders, dated June 15, 2017 and July 11, 2017, ECF Nos. 24–25.
On August 21, 2017, Mr. Dorlette filed an Amended Complaint. Am. Compl.
On October 12, 2017, the Court denied Defendants’ motion to dismiss, without prejudice
to filing again in light of the Amended Complaint, and issued a new Initial Review Order with
respect to the Amended Complaint. Ruling and Init. Rev. Order on Am. Compl. The Court

7

permitted Mr. Dorlette’s Eighth Amendment deliberate indifference to medical needs claim
against Defendants to proceed. Id. at 8.
On May 4, 2018, Defendants moved for permission to file Exhibit A to their motion for
summary judgment, containing Plaintiff’s relevant medical records, under seal. Motion to Seal
Plaintiff’s Medical Records, dated May 4, 2018, ECF No. 40. The Court granted that motion on
May 7, 2018. Order, dated May 7, 2018, ECF No. 41.
On May 21, 2018, Defendants moved for summary judgment on all claims in the
Amended Complaint. Mot. Summ. J.; Defs.’ Mem.; Defs.’ SMF. Defendants did not, however,
separately file Exhibit A under seal at that time.
On August 31, 2018, Mr. Dorlette opposed the motion. See Pl.’s Opp.; Pl.’s SMF.
On February 25, 2019, the Court ordered Defendants to file Exhibit A to their motion—
medical records which the Court granted Defendants leave to file under seal, but which were not
actually filed on the docket—by March 1, 2019. Order, dated Feb. 25, 2019, ECF No. 53. The
Court also gave Mr. Dorlette until March 12, 2019 to supplement his opposition. Id.
On February 26, 2019, Defendants filed the medical records with the Court. Sealed
Document, dated Feb. 26, 2019, ECF No. 54.
Mr. Dorlette did not file any amendment or supplement his opposition before the March
12, 2019 deadline.
II.

STANDARD OF REVIEW
A court will grant a motion for summary judgment if the record shows no genuine issue

as to any material fact, and the movant is entitled to judgment as a matter of law. FED. R. CIV. P.
56(a). The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving party may

8

defeat the motion by producing sufficient specific facts to establish that there is a genuine issue
of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “[T]he 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.” Id. at 247–48.
“[T]he substantive law will identify which facts are material.” Id. at 248. “Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id.; see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996) (“[M]ateriality runs to whether the dispute matters, i.e., whether it concerns facts that can
affect the outcome under the applicable substantive law.”) (citing Anderson, 477 U.S. at 248).
“The inquiry performed is the threshold inquiry of determining whether there is the need
for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. When a motion for summary judgment is supported by
documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of
material fact,” the nonmoving party must do more than vaguely assert the existence of some
unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation
omitted). The party opposing the motion for summary judgment “must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact.” Id. “If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 250 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 (1967);
First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).

9

A court must view any inferences drawn from the facts in the light most favorable to the
party opposing the summary judgment motion. Dufort v. City of N.Y., 874 F.3d 338, 343 (2d Cir.
2017). A court will not draw an inference of a genuine dispute of material fact from conclusory
allegations or denials, Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011), and will grant
summary judgment only “if, under the governing law, there can be but one reasonable conclusion
as to the verdict,” Anderson, 477 U.S. at 250.
Where one party is proceeding pro se, a court must read his papers liberally and interpret
them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62
(2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation,
however, “[u]nsupported allegations do not create a material issue of fact” and cannot overcome
a properly supported motion for summary judgment. See Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000), cert. denied, 540 U.S. 811 (2003).
III.

DISCUSSION
Defendants argue that they are entitled to summary judgment because (1) Mr. Dorlette

failed to exhaust his administrative remedies before commencing this action;4 (2) Mr. Dorlette’s
condition was, objectively, not “sufficiently serious”; (3) Mr. Dorlette cannot satisfy his burden
of showing that Dr. Smyth acted with a subjectively reckless state of mind; and (4) Mr. Dorlette
cannot demonstrate that Dr. Wu was personally involved in his care, or that he was responsible
for a policy that led to the delay in his receiving eyeglasses.5

4

Defendants raised the affirmative defense of exhaustion in their Answer to the Amended Complaint. Answer, dated
Sept. 18, 2017, ECF No. 28, at 4.
5

Because the Court concludes that Mr. Dorlette cannot prevail on his Eighth Amendment claims based on the
evidence in the record, the Court does not consider the defendants’ alternative argument that they are entitled to
qualified immunity. See Defs.’ Mem. at 15–20.

10

While the Court disagrees that Mr. Dorlette failed to exhaust his administrative remedies,
Mr. Dorlette has failed to create a genuine issue of material fact as to either the objective or
subjective prong of the deliberate indifference standard, or as to Dr. Wu’s personal involvement
in his care.6
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) of 1996, 42 U.S.C. § 1997e(a), provides that
“[n]o action shall be brought with respect to prison conditions under section 1983 . . . or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of
administrative remedies is mandatory for any prisoner challenging the conditions of his
confinement. Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Once within the discretion of the
district court, exhaustion in cases covered by § 1997e(a) is now mandatory.”) (citing Booth v.
Churner, 532 U.S. 731, 739 (2001)).
Exhaustion under the PLRA requires “proper exhaustion,” meaning full compliance with
administrative procedures and deadlines. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also
Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006). “An ‘untimely or otherwise
procedurally defective administrative grievance’ . . . does not constitute proper exhaustion.”
Snyder v. Whittier, 428 F. App’x 89, 91 (2d Cir. 2011) (quoting Woodford, 548 U.S. at 83-84).
To properly exhaust a claim, a prisoner must comply with the prison grievance procedures,

6
Defendants also argue that they are entitled to judgment on Mr. Dorlette’s “negligence claims.” Defs’ Mem. at 15.
Although Mr. Dorlette alleged that Defendants acted with “gross negligence” in response to his medical complaints,
Am. Compl. ¶ 22, the Court, in reviewing the Amended Complaint, did not permit any “negligence claims” to
proceed. See Ruling and Init. Rev. Order on Am. Compl. at 8. Nevertheless, any state law negligence claim against
Defendants would be barred by Connecticut General Statutes § 4-165. See CONN. GEN. STAT. § 4-165; see also Poe
v. Leonard, 282 F.3d 123, 145 (2d Cir. 2001) (negligence insufficient to state claim under § 1983).

11

including utilizing each step of the administrative appeal process. Id. (citing Jones v. Bock, 549
U.S. 199, 218 (2007)).
DOC Administrative Directive 8.9 outlines the exhaustion procedure for inmates seeking
review or otherwise challenging conduct by health care professionals:
There are two types of Health Services Review: Diagnosis and
Treatment, and Review of an Administrative Issue. Under
Administrative Directive 8.9, an inmate seeking either type of
review must first attempt to seek informal resolution before filing a
formal request for a Health Services Review. If an inmate is not
happy with the informal resolution of his or her issue, he or she may
file an Inmate Administrative Remedy Form seeking either (a) a
review of a medical decision regarding the diagnosis or treatment,
or lack of a diagnosis or treatment, of a medical condition; or (b) a
review of a practice, procedure, policy or administrative provision,
or the alleged improper conduct of a health services provider. If an
inmate is not satisfied with the response to his or her request for
review of a procedure or practice, he or she may appeal the decision
within ten business days of receiving the decision.
Once an appeal is filed, the health services provider or the
designated facility health services director must decide the appeal
within fifteen business days of receiving the appeal. If the issue
being raised relates to a health services policy of the Department,
the inmate may appeal to the DOC Director of Health Services
within ten business days of receiving the decision from the health
services provider or designated facility health services director.
Minnifield v. Dolan, No. 3:14-CV-1580 (VAB), 2017 WL 1230840, *6 (D. Conn. Mar. 30, 2017)
(citations and internal quotation marks omitted); see DOC Admin. Dir. 8.9, annexed as Ex. C to
Defs.’ SMF, at 4–5.
Defendants allegedly have submitted all of the Inmate Request forms filed by Mr.
Dorlette between July, 2015 and March 16, 2016, the date of his transfer from MWCI to
Corrigan. See Lightner Aff. ¶¶ 24–25; Defs.’ Ex. E. They claim that Mr. Dorlette’s Inmate
Request on July 28, 2015, seeking an appointment with the optometrist, represents the only

12

administrative remedy documentation Mr. Dorlette filed concerning his eyeglasses, vision
problems, or Dr. Smyth. See Lightner Aff. ¶ 26; Defs.’ Ex. D.
Mr. Dorlette has submitted requests he allegedly wrote in the months following his
August 2015 appointment, including a copy of one Health Services Review dated November 25,
2015 concerning his eyeglasses. Pl.’s Opp. at 5; Pl.’s Aff. ¶¶ 10–11; Health Services Review,
dated Nov. 25, 2015, annexed as Ex. 3 to Pl.’s Opp., ECF No. 52, at 52. Unlike DOC
Administrative Directive 9.6, which is utilized for non-medical related inmate grievances,
Directive 8.9 does not provide an inmate with an opportunity to appeal as a matter of course
should the recipient of the Health Services Review fail to respond. See Carter v. Revine,
No. 3:14-CV-1553 (VLB), 2017 WL 2111594, *8 n.8 (D. Conn. May 15, 2017).
It is unclear why the Health Services Review does not appear in MacDougall-Walker’s
records. Nevertheless, Mr. Dorlette has provided sufficient evidence to create a genuine issue of
material fact as to whether Mr. Dorlette exhausted his administrative remedies. The Court
therefore denies summary judgment on this basis.
B. Deliberate Indifference Claim Against Dr. Smyth
Defendants argue that the evidence shows no genuine issue of material fact with respect
to Mr. Dorlette’s deliberate indifference claim and that they are entitled to judgment as a matter
of law.
The Court agrees.
“Because the Eighth Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the
level of a constitutional violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing
Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Snipes v. DeTella, 95 F.3d 586, 590–91 (7th Cir.

13

1996)). Deliberate indifference to a serious medical need becomes an Eighth Amendment
violation when an official both knows that an inmate faces a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it. Harrison v. Barkley, 219
F.3d 132, 137–38 (2d Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
There are both objective and subjective components to the deliberate indifference
standard. Hathaway v. Coughlin (Hathaway II), 99 F.3d 550, 554 (2d Cir. 1996) (citing
Hathaway v. Coughlin (Hathaway I), 37 F.3d 63, 66 (2d Cir. 1994)).
Objectively, “the alleged deprivation must be ‘sufficiently serious,’ in the sense that ‘a
condition of urgency, one that may produce death, degeneration, or extreme pain’ exists.” Id.
(citing Hathaway I, 37 F.3d at 66). The Second Circuit has also recognized that “the inability to
engage in normal activities” may form the basis for a cognizable claim regarding inadequate
medical care. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); see Koehl v. Dalsheim, 85
F.3d 86, 88 (2d Cir. 1996) (double vision and loss of depth perception due to prior head injury
may not inevitably entail pain, but can “readily cause a person to fall or walk into objects, and
Koehl alleged that he has experienced such occurrences, and has suffered injuries as a
consequence,” and thus are sufficient to allege objective element of deliberate indifference
claim).
“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, 316 F.3d at 185 (internal quotation
marks and citations omitted). It is the “particular risk of harm faced by a prisoner due to the

14

challenged deprivation of care, rather than the severity of the prisoner’s underlying medical
condition, considered in the abstract, that is relevant for Eighth Amendment purposes.” Id.
(citations omitted). “For example, the failure to provide treatment for an otherwise
insignificant wound may violate the Eighth Amendment if the wound develops signs of
infection, creating a substantial risk of injury in the absence of appropriate medical treatment.”
Id. (citing Chance, 143 F.3d at 702).
Subjectively, “the charged official must act with a sufficiently culpable state of mind,” id.
(citing Hathaway I, 37 F.3d at 66), meaning that the charged official must act or fail to act while
“actually aware of a substantial risk that serious inmate harm will result,” Salahuddin v. Goord,
467 F.3d 263, 280 (2d Cir. 2006).
While Mr. Dorlette has raised some issues, there is no genuine issue of material fact as to
whether he can substantiate the objective element required for a deliberate indifference claim. He
cannot.
The objective component of Mr. Dorlette’s Eighth Amendment claim is the
approximately eight-month delay in receiving his prescription eyeglasses. At the motion to
dismiss stage, the Court found Mr. Dorlette’s allegations plausibly stated the objective element
because he alleged “that the deprivation of his eyeglasses has caused him headaches and has
rendered him unable to read or write.” Ruling and Init. Rev. Order on Am. Compl. at 7.
At the summary judgment stage, however, Mr. Dorlette has not produced any evidence,
beyond his own statements, that the eight-month delay in receiving his eyeglasses caused him to
suffer the harms he alleges. See Charter Practices Int’l, LLC v. Robb, No. 3:12-CV-1768 (RNC),
2017 WL 4366717, *5 (D. Conn. Sep. 30, 2017) (nonmoving party cannot rely on self-serving
affidavit alone to create triable issue of fact). Unlike in Koehl, no permanent damage has been

15

alleged, let alone substantiated. See Koehl, 85 F.3d at 87 (“[h]is left eye, which had shifted as a
result of his head injury, has now shifted fully into the corner of the socket and is almost
sightless, and he has experienced headaches.”). Mr. Dorlette has not identified any medical
records or other documentation supporting the notion that the delay in receiving his eyeglasses
had a serious effect on his health. Moreover, although he alleges having filed complaints about
any such concerns, no such complaints have been identified by the Defendants. See Lightner Aff.
¶ 26 (“Aside from the July 28, 2015 [request], there are no inmate request forms from Faroulh
regarding his eyes, eyeglasses or an examination for the period of time after the August 11, 2015
examination and before he moved to a different facility on March 16, 2016.”).
After nearly one year of discovery, Mr. Dorlette has failed to support his claim that not
having his glasses impacted his daily activities with evidence sufficient to create a triable issue
of fact. See Davidson v. Desai, 817 F. Supp. 2d 166, 188 (N.D.N.Y. 2011) (“[A]lthough Plaintiff
maintains that his inability to obtain proper eyeglasses required Plaintiff to rely on his outdated
prescription lenses, resulting in eyestrain and headaches, Plaintiff fails to allege that such
symptoms impaired Plaintiff’s daily activities . . . The evidence in the record thus fails to
establish a material issue of fact as to whether Plaintiff, as a result of delays in obtaining proper
prescriptive lenses, suffered from a serious medical condition.”) (internal citation omitted). In
addition to other undisputed evidence in the record showing that Mr. Dorlette wrote several
Inmate Requests during this period, see Defs.’ Ex. E, Mr. Dorlette, when he allegedly still lacked
glasses, wrote and filed his initial Complaint against Defendants on February 25, 2016, as well as
the Complaint in another lawsuit currently pending before this Court, Dorlette v. Tyburski, No.
3:15-cv-1856 (VAB), which he wrote and filed on December 22, 2015. See Davidson, 817 F.
Supp. 2d at 188 n.6 (“The court notes that although Plaintiff complained on April 10, 2001, of

16

problems with his near vision and reading, Plaintiff continued to research and write in support of
his then-pending legal actions. Nor does Plaintiff assert that inadequately corrected vision caused
him any delays or interfered with his pursuit any legal actions.”).
A plaintiff may not “rest on his allegations . . . to get to a jury without ‘any significant
probative evidence tending to support the complaint.’” Anderson, 477 U.S. at 249 (quoting Cities
Serv., 391 U.S. at 290). “[T[he plaintiff must present affirmative evidence in order to defeat . . .
summary judgment.” Id. at 257; see also Felder v. Filion, 368 F. App’x 253, 256 (2d Cir. 2010)
(upholding summary judgment where plaintiff failed to produce evidence demonstrating that the
deprivation of his eyeglasses caused him sufficiently serious harm).
Even if he had sufficiently supported his claims with respect to the objective element, the
undisputed record does not support a claim under the subjective element: namely, that Dr. Smyth
failed to act in response to that need, as Mr. Dorlette had alleged in his Amended Complaint.
Am. Compl. ¶ 15 (“Defendant Smyth, upon his August 2015 diagnosis of the plaintiff, was
responsible for ordering . . . the corrective lenses for the plaintiff, which he failed to do, allowing
plaintiff to suffer for several months.”). In fact, it supports the exact opposite conclusion: that Dr.
Smyth wrote him a prescription that could be used to acquire new glasses.
It is therefore immaterial whether or not Mr. Dorlette asked Dr. Smyth to additionally
order state-issued glasses, and whether or not Dr. Smyth informed him that he could only order
him state issued glasses or give him a prescription, but not both. Mr. Dorlette argues that Dr.
Smyth “should have” ordered him state-issued eyeglasses because that would have been the
“most reasonable response” to the eye exam. Pl.’s Opp. at 8–9. But the point remains: Dr. Smyth
acted. He did not “fail to act.” At best, Dr. Smyth acted negligently in treating Mr. Dorlette. But
that is insufficient, as a matter of law, to establish deliberate indifference. See Salahuddin, 467

17

F.3d at 280 (“[R]ecklessness entails more than mere negligence; the risk of harm must be
substantial and the official’s actions more than merely negligent.”) (citations omitted); Chance,
143 F.3d at 703 (“[N]egligence, even if it constitutes medical malpractice, does not, without
more, engender a constitutional claim.”) (citing Estelle, 429 U.S. at 105–06); see also Hernandez
v. Keane, 341 F.3d 137, 145–46 (2d Cir. 2003) (“The evidence as to the treatment of plaintiff’s
hand suggests at most several acts of negligence over a prolonged period. That is not enough to
support an Eighth Amendment violation.”) (citations omitted).
Accordingly, because Mr. Dorlette has failed to produce affirmative evidence
demonstrating a material issue of fact as to either the objective or subjective elements of a
deliberate indifference claim, the Court grants summary judgment on this basis.
C. Claims Against Dr. Wu.
Because Mr. Dorlette has failed to demonstrate any material issue of fact as to Dr.
Smyth’s deliberate indifference, he cannot sustain a claim against Dr. Wu flowing from that
alleged indifference. In addition, Mr. Dorlette has failed to show that Dr. Wu had any personal
involvement in the delay of receiving eyeglasses. See Defs.’ Mem. at 13–14.
A plaintiff who sues a supervisory official for monetary damages must allege that the
official was “personally involved” in the constitutional deprivation in one of five ways: (1) the
official directly participated in the deprivation; (2) the official learned about the deprivation
through a report or appeal and failed to remedy the wrong; (3) the official created or perpetuated
a policy or custom under which unconstitutional practices occurred; (4) the official was grossly
negligent in managing subordinates who caused the unlawful condition or event; or (5) the
official failed to take action in response to information regarding the unconstitutional conduct.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).

18

Mr. Dorlette has produced no evidence showing Dr. Wu’s involvement or knowledge in
the ordering or delivery of his eyeglasses in this case. He broadly asserts that, “as the Director of
Medical Services, [Dr. Wu] was responsible for overseeing the overall medical treatments of
inmates in [DOC] custody, creating policies and procedure[s], etc.” Pl.’s Aff. ¶ 18; see also Pl.’s
Opp. at 18 (Dr. Wu “held the position of Medical Director and as such was responsible for the
oversight of medical policy and procedure regarding the manner in which the medical facilities
and staff in the [DOC] operated, to include . . . the manner in which eye care is . . . provided”).
But the fact that Dr. Wu held a supervisory title does not establish his personal involvement in
the alleged constitutional violation such that Mr. Dorlette could recover damages from him. See
Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (claim for monetary damages against
supervisory official requires showing more than linkage in prison chain of command); Abrams v.
Waters, No. 3:17-CV-1659 (CSH), 2018 WL 691717, *6 (D. Conn. Feb. 2, 2018) (dismissing
claims against defendants based solely on their supervisory roles in prison facility).
Accordingly, the Court grants summary judgment on this basis.
IV.

CONCLUSION
For the reasons explained above, Defendants’ motion for summary judgment is

GRANTED, and Plaintiff’s deliberate indifference claims are DISMISSED.
The Clerk of the Court is respectfully directed to enter judgment for Defendants and to
close this case.
SO ORDERED at Bridgeport, Connecticut, this 20th day of March, 2019.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

19