Swinton v. Wright et al

Filing 35

ORDER granting 29 Motion for Summary Judgment. Signed by Judge Stefan R. Underhill on 9/5/2017. (Schneider, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GREGORY SWINTON,
Plaintiff,
v.
CARSON WRIGHT, M.D.,
Defendant.

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No. 3:16-cv-659 (SRU)

RULING ON MOTION FOR SUMMARY JUDGMENT
On April 28, 2016, Gregory Swinton, an inmate currently incarcerated at McDougallWalker Correctional Institution in Suffield, Connecticut, filed this case pro se under 42 U.S.C. §
1983. Swinton alleged that Dr. Carson Wright deprived him of a proper, allergy-free diet for
fifty-seven days, in violation of his Eighth Amendment protection against cruel and unusual
punishment. Such deprivation allegedly rendered Swinton unable to eat 146 of the meals served
by the staff at Northern Correctional Institution (“Northern”) in Somers, Connecticut, where he
was housed at the time, and “caused his health to diminish.” Pl.’s Opp’n to Mot. Summ. J. at 3
(doc. # 32). On June 28, 2016, I issued an Initial Review Order permitting Swinton’s Eighth
Amendment claim to proceed against Wright, reasoning that Swinton had stated a plausible
claim of deliberate indifference to serious medical needs. Initial Review Order (doc. # 13). On
August 26, 2016, Wright filed an answer to Swinton’s complaint. See Def.’s Answer (doc. # 16).
On January 23, 2017, Wright filed the instant motion for summary judgment with
supporting exhibits, including Swinton’s medical file, Wright’s sworn affidavit, and the Inmate
Request Forms and Grievances that Swinton filed while at Northern. Def.’s Mot. Summ. J. (doc.
# 29); Def.’s Ex. 1 (doc. # 30). Swinton filed a written memorandum in opposition to Wright’s
motion on February 28, 2017, along with his own affidavit, an affidavit from his cellmate,
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Latuan Gainey, excerpts from his medical records, and nutritional information on the foods he
was allegedly served during the fifty-seven day period when he was not on his special diet.1
Pl.’s Opp’n (doc. # 32). For the following reasons, I grant Wright’s motion.
I.

Standard of Review
In a motion for summary judgment, the burden is on the moving party to establish that

there are no genuine issues of material fact in dispute and that he is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the
suit under the governing law,” and it is “genuine” if “a reasonable jury could return a verdict for
the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
see also Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (mere existence
of some alleged factual dispute will not defeat summary judgment motion).
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). Thus, 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.; see also First Nat. Bank of Ariz. v. Cities
Service Co., 391 U.S. 253, 289 (1968) (nonmoving party must submit sufficient evidence
supporting claimed factual dispute to require jury or judge to resolve parties’ differing versions
of truth at trial).

Swinton did not submit a statement in opposition to Wright’s motion for summary judgment pursuant to Local
Rule 56(a)(2). Although the nonmoving party is required to submit a Local Rule 56(a)(2) statement, I can discern
from his written memorandum and supporting exhibits that there exists no genuine issue of material fact with respect
to his claim. Therefore, Swinton’s failure to submit a statement in opposition is not dispositive of the motion.
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In reviewing the record, I must “construe the evidence in the light most favorable to the
non-moving party and to draw all reasonable inferences in its favor.” Gary Friedrich Enters.,
L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). If there is
evidence in the record from which a reasonable factual inference could be drawn in favor of the
opposing party for the issue on which summary judgment is sought, however, summary
judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391
F.3d 77, 83 (2d Cir. 2004).
Where one party is proceeding pro se, I must read the pro se party’s 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).
II.

Factual Allegations

Swinton is allergic to eggs and soy food products. In 2015 and early 2016, while
incarcerated at Bridgeport Correctional Center (“BCC”), Swinton was on an egg- and soy-free
diet. On February 17, 2016, however, Swinton requested that he be taken off the special diet
because he suspected that the correction officers at BCC were “playin[g] with [his] food.”
Inmate Request Form, Unspecified Pl.’s Ex. (doc. # 32-1 at 12). Wright, a principal physician at
UCONN Correctional Managed Health Care (“UCMHC”), honored his request and ordered that
he be taken off his special diet. Initial Review Order at 2 (doc. # 13). That same day, Swinton
was transferred from BCC to Northern. Def.’s Aff. at ¶ 12 (doc. # 29-3).

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On February 26, 2016, while housed at Northern, Swinton requested via written Inmate
Request Form that he be placed back on his allergy-free diet and that he be examined for a
possible back injury. Def.’s Aff. at ¶ 13 (doc. # 29-3). Due to the frequency of inmate requests
for special diets, it is standard procedure for correctional medical staff that all such requests be
approved by Dr. Wu at UCMHC. Id. at ¶ 7. Prior to issuing an approval, it is also standard
procedure for correctional medical staff to verify the inmate’s food allergy through the use of a
radioallergosorbent test or “RAST test.” Id. at ¶ 8. A nurse who reviewed Swinton’s request
placed Swinton on the list to be seen by a prison doctor. Id. at ¶ 14. Nearly one month later, on
March 22, 2016, Wright evaluated Swinton. Id. at ¶ 15. He reviewed Swinton’s medical records
and ordered that an x-ray be conducted on Swinton’s back and that Northern medical staff
forward his diet request to Dr. Wu. Id. at ¶ 16.
Dr. Wu ordered the RAST test on April 6, 2016, which later revealed that Swinton was,
indeed, allergic to egg whites, wheat, corn, soy, and peanuts. Def.’s Aff. at ¶ 18 (doc. # 29-3).
Wright was notified of the RAST test results via e-mail on April 12 and, two days later, ordered
that Swinton be placed on a therapeutic diet that includes no eggs, nuts, or soy. Id. at ¶ 20.
From his transfer to Northern on February 17, 2016, to Wright’s order on April 14, 2016,
a total of fifty-seven days, Swinton did not consume any of the meals provided by Northern staff
containing soy or eggs. Pl.’s Aff. (doc. # 32); Gainey Aff. (doc. # 32). Following his initial visit
with Wright, Swinton asked the correctional staff at Northern to log all the meals being served
that contained soy or eggs. They logged 146 meals, none of which Swinton was able to
consume. Am. Comp. at ¶ 1 (doc. # 10).
III.

Analysis

In support of his motion for summary judgment, Wright argues that the uncontroverted

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evidence establishes that it was Swinton, not Wright, who requested that his allergy-free diet be
discontinued in February 2016, that Wright adequately responded to Swinton’s request to be
placed back on the diet, and that Swinton suffered no adverse medical effects during the period
he was off the diet. Wright submits as evidence his own affidavit, Swinton’s Inmate Request
Forms showing that Swinton requested that he be removed from the diet, and Swinton’s sealed
medical records. Def.’s Ex. 2-4. Swinton does not dispute that he requested to be taken off the
diet in February 2016 but argues that Wright should have placed him back on the diet
immediately upon his request and that the removal from the diet “caused his health to diminish
and . . . notable weight loss . . . .” Pl.’s Opp’n at 3 (doc. # 32). As evidence, Swinton submits
excerpts from his medical records, which Wright reviewed during his evaluation of Swinton on
March 22, 2016, that clearly show an allergy to eggs and soy.2 Id. at 18–20. He also submits
nutrition information for various foods that he claims were served by Northern staff during the
time he was off his diet and affidavits from himself and his cellmate attesting to Swinton’s
refusal to eat the foods being served during that time. Id. at 9–12.
To succeed on his claim for deliberate indifference to a serious medical need, Swinton
must show both that his medical need was serious and that Wright acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle
v. Gamble, 492 U.S. 97, 105 (1976)). There are both objective and subjective components to the
deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be “sufficiently serious.” Wilson v. Seiter, 501 U.S.
294, 298 (1991). The condition must be “one that may produce death, degeneration, or extreme
pain.” See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks

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Swinton did not move to seal the excerpts from his medical records that he attached to his memorandum, but the
clerk is directed to seal those medical records.

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omitted). Subjectively, Wright must have been actually aware of a substantial risk that Swinton
would suffer serious harm as a result of his actions or inactions. See Salahuddin v. Goord, 467
F.3d 263, 280–81 (2d Cir. 2006). Negligence that would support a claim for medical malpractice
does not rise to the level of deliberate indifference and is not cognizable under section 1983; see
id. at 280; nor does a difference of opinion regarding what constitutes an appropriate response
and treatment. See Ventura v. Sinha, 379 F. App’x 1, 2–3 (2d Cir. 2010); Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998).
Food allergies may constitute a serious medical need if they prevented Swinton from
receiving a safe or nutritionally adequate diet. See Sweeting v. Miller, 2015 WL 4773276, at *3
(W.D. Va. Aug. 12, 2015) (collecting cases). Thus, to survive a motion for summary judgment,
Swinton must also show that the diet he was provided was not safe or nutritionally adequate to
sustain his health. See Witschi v. North Carolina Dep’t of Public Safety, 2014 WL 3735135, at
*2 (W.D.N.C. July 29, 2014) (collecting cases). “To show inadequate nourishment, courts
typically require evidence of a connection between the[] challenged diet regimen and substantial
weight loss.” Sweeting, 2015 WL 4773276, at *3.
With respect to the objective component of his Eighth Amendment claim, Swinton has
offered evidence that he was unable to eat 146 meals during the fifty-seven days when he was off
his allergy-free diet. He also claims in his memorandum that the removal of the diet “caused his
health to diminish” and that he lost forty pounds, although he has not submitted any evidence to
support that claim. My review of Swinton’s medical records shows that he experienced some
weight loss during the time Swinton was off his allergy-free diet. See Def.’s Ex. 1 (doc. # 30). It
is not clear, however, whether the medical records show stated weight, estimated weight, or

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measured weight.3 Still, a reasonable jury could infer that Swinton lost weight as a direct result
of inadequate nourishment caused by the removal of the allergy-free diet.
Although Swinton might be able to establish that the removal of the special diet caused
him inadequate nourishment, he has not shown that Wright acted with deliberate indifference to
his medical needs. “Although a delay in providing necessary medical care may in some cases
constitute deliberate indifference, [the Second Circuit] has reserved such a classification for
cases in which, for example, officials deliberately delayed care as a form of punishment . . .
ignored a life-threatening and fast-degenerating condition for three days . . . or delayed major
surgery for over two years . . . .” Demata v. New York State Corr. Dept. of Health Services, 1999
WL 753142, *2 (2d Cir. Sept. 17, 1999) (citations omitted; internal quotation marks omitted);
see also Cerilli v. Rell, 2010 WL 3827960, *6 (D. Conn. Sep. 23, 2010) (to prevail on deliberate
indifference claim, prisoner must prove that defendants intended either to deny or unreasonably
delay access to needed medical care, or wantonly inflicted unnecessary pain). No such
circumstances are present in this case.
Wright has presented uncontroverted evidence that he responded to Swinton’s request to
be placed back on his allergy-free diet adequately and in accordance with UCMHC protocol.
After Swinton informed him of his need for an eggs- and soy-free diet, Wright referred
Swinton’s request to Dr. Wu for RAST testing, which is standard procedure for verifying inmate
food allergies for special diet requests. Swinton does not dispute that, when Wright received
notification that the results of the RAST test positively showed an allergy to eggs and soy food
products, Wright promptly ordered that Swinton be placed on an adequate allergy-free diet.

The medical records show Swinton’s weight as: 240 lbs. on 10/2/15 (p. 92); 208 lbs. on 1/26/16 (p. 33); 226 lbs. on
2/16/16 (p. 61); 230 lbs. on 2/17/16 (p. 32); 226 lbs. on 4/16/16 (p. 18); 221 lbs. on 4/21/16 (p. 56); and 218 lbs. on
5/13/16 (p. 28). His height is also listed in various records as 6’0”, 6’2”, and 6’3” (pp. 61, 81, 114).
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Swinton has not presented any evidence that Wright deliberately delayed or ignored his request
for an allergy-free diet. See Demata, 1999 WL 753142, at *2; Reyes v. Gardener, 93 F. App’x
283, 285 (2d Cir. 2004) (prisoner failed to show that defendants refused to treat prisoner’s
condition, failed to provide prescribed medication, or placed unreasonable conditions on receipt
of treatment). Swinton’s only contention is that Wright should have ordered the diet
immediately upon request based on his medical records as opposed to referring him to Dr. Wu
for RAST testing.
Swinton disagrees with Wright’s decision to refer him for RAST testing, which he does
not dispute is standard protocol. Even if it reasonably could be inferred from Swinton’s evidence
that Wright could have, and should have, ordered the special diet immediately upon reviewing
Swinton’s medical records without ordering a RAST test, such an inference, at most, establishes
malpractice, not deliberate indifference. See Harrison v. Barkley, 219 F. 3d 132, 139 (2d Cir.
2000) (medical malpractice, which may include delay in treatment based on bad diagnosis or
erroneous calculation of risks and costs or mistaken decision not to treat based on view that
condition is benign or trivial, does not amount to Eighth Amendment violation). Based on the
foregoing, no reasonable fact-finder could conclude that Wright acted with deliberate
indifference to Swinton’s medical needs.
IV.

Conclusion

Wright’s motion for summary judgment (doc. # 29) is GRANTED. The Clerk is directed
to enter judgment in favor of Wright and close this case.
SO ORDERED this 5th day of September 2017 at Bridgeport, Connecticut.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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