Bland v. Francheshi et al
Filing
96
ORDER GRANTING 76 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum of Decision, the Defendants' 76 Motion for Summary Judgment is hereby GRANTED in favor of the Defendants. The Clerk of Court is directed to enter judgment and close the case. Signed by Judge Kari A. Dooley on 1/29/2019. (Grossfeld, Eric)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CRAIG L. BLAND,
Plaintiff,
v.
EMMANUEL FRANCESCHI, RICHARD
BUSH, CHRISTOPHER N. FONTAINE,
THEODORE HOLMES, ANGELA
JACKSON, S. JOHAR NAQVI, CARLOS
PADRO, MALGORZATA ZUKOWSKA,
Defendants.
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CIVIL NO. 3:16-cv-1406 (KAD)
January 29, 2019
MEMORANDUM OF DECISION RE:
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 88)
Kari A. Dooley, United States District Judge
Preliminary Statement of the Case
The Plaintiff, Craig L. Bland, formerly in the custody of the Connecticut Department of
Corrections (“DOC”), commenced this civil rights action pursuant to Title 42, U.S.C. § 1983. He
brings his claims against Correctional Managed Health Care employees Dr. Naqvi, Health Services
Administrator Bush, Head Correctional Nurse Zukowska, Correctional Nurse Jackson and former
Correctional Nurse Fontaine. He also brings claims against Department of Correction employees
former Lieutenant Holmes, Lieutenant Padro and Correctional Officer Franceschi. The Plaintiff
alleges that all defendants were deliberately indifferent to his serious medical needs in violation of
his Eighth Amendment rights. The Defendants filed a motion for summary judgment, to which the
Plaintiff objected. The Court heard oral argument on January 16, 2019. For the following reasons,
the motion is GRANTED as to all Defendants.
Standard of Review
The standard under which the Court reviews motions for summary judgment is wellestablished. “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The Court’s inquiry focuses on “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 v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). Once the movant meets his burden, the nonmoving party must set
forth “‘specific facts’ demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “[T]he party opposing summary
judgment may not merely rest on the allegations or denials of his pleading” to establish the
existence of a disputed fact. Wright, 554 F.3d at 266; accord Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888 (1990). However, until the moving party comes forward with evidence that would
establish his entitlement to judgment as a matter of law, the non-moving party is under no
obligation to produce any evidence. Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).
“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50.
Indeed, summary judgment is evaluated in the same fashion as a motion for a directed verdict. Id.
at 250. The Supreme Court has “noted that the ‘genuine issue’ summary judgment standard is
‘very close’ to the ‘reasonable jury’ directed verdict standard: The primary difference between the
two motions is procedural; summary judgment motions are usually made before trial and decided
on documentary evidence, while directed verdict motions are made at trial and decided on the
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evidence that has been admitted.” Id. at 251. “In essence, though, the inquiry under each is the
same: whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 252–53.
However, “at the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. “[C]ourts may not make credibility determinations or weigh the evidence
when confronted with a motion for summary judgment. All evidence presented by the nonmoving
party must be taken as true, and all inferences must be construed in a light most favorable to the
nonmoving party.” Catanzaro v. Weiden, 140 F.3d 91, 93–94 (2d Cir. 1998), on reh’g, 188 F.3d
56 (2d Cir. 1999) (citing United States v. Diebold, 369 U.S. 654, 655 (1962)). In sum, “where the
facts specifically averred by [the nonmovant] contradict facts specifically averred by the movant,
the motion must be denied.” Lujan, 497 U.S. at 888.
Facts
The following facts are largely undisputed.
On November 1, 2015, the Plaintiff was incarcerated at the New Haven Correctional
Center. At approximately 4:00 a.m. the Plaintiff was escorted from the restricted housing unit to
the medical unit. At the medical unit, Defendant Nurse Jackson, believing the Plaintiff to be an
inmate named Murphy, advised the Plaintiff that she was going to administer the last dose of his
medication. The Plaintiff did not advise Nurse Jackson that he was not due to have any medication.
The Plaintiff cooperated while Nurse Jackson opened two suboxone packets and poured the
medicine into the Plaintiff’s mouth, under his tongue. At that point, the Plaintiff told Nurse
Jackson that he was not scheduled to receive any medication, let alone suboxone. Upon learning
that she had mistakenly given the Plaintiff the suboxone, Nurse Jackson immediately notified her
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supervisor, Defendant Head Nurse Zukowska. Nurse Jackson was apologetic to the Plaintiff. The
Plaintiff admits that Nurse Jackson “did not mistreat the plaintiff, answered his questions, notified
her supervisor of what happened and followed up with the plaintiff later that morning.” The
Plaintiff admits that the administration of the suboxone to the wrong inmate was unintentional.
Upon learning of what had occurred, Nurse Zukowska spoke with the Plaintiff and
explained that he had been given suboxone by accident and the protocol that she was required to
follow. Consistent with that protocol, she contacted the Health Services Administrator, the custody
supervisor, as well as the on-call doctor, Defendant Dr. Naqvi. She also reviewed the Plaintiff’s
file to check for any known allergies. Nurse Zukowska told Dr. Naqvi what had happened and
shared the content of the Plaintiff’s medical file with him. Dr. Naqvi determined that the Plaintiff
did not need outside medical treatment. Later that same morning, Nurse Zukowska visited the
Plaintiff in his housing unit. While speaking with him, she requested to take his vital signs. He
refused, telling her he wanted to see a “real doctor.” She advised him that if his vital signs were
abnormal, she would take him to the doctor. He refused to have his vital signs taken.
Although the facts set forth above are largely undisputed, there are numerous allegations
contained in the Plaintiff’s complaint for which there is competing evidence. Principally, the
Plaintiff alleges that after he returned to his cell following the accidental suboxone administration,
he became visibly and seriously ill and that he injured his head when he fainted from the side
effects. He claims to have repeatedly sought help from the other named defendants, to include
officers and supervisors who work on his cell block, to no avail. Admittedly, the Plaintiff was next
seen in the medical unit on November 3, 2015. Notwithstanding, he claims the Defendants were
deliberately indifferent to his serious medical condition in violation of his Eighth Amendment
rights. The Defendants deny each of these allegations and have supported the motion for summary
4
judgment with multiple affidavits, prison log books, and other records which refute, they claim
conclusively, the Plaintiff’s affidavit and other materials submitted by the Plaintiff in opposition
to the Defendants’ motion.
Additional facts will be set forth as necessary.
Discussion
The Defendants move for summary judgment on three grounds: (1) the Plaintiff failed to
exhaust his administrative remedies with respect to all defendants except Nurse Jackson and Nurse
Zukowska, before commencing this action, (2) all Defendants are protected by qualified immunity,
and 3) the Plaintiff cannot establish his deliberate indifference claim.
Exhaustion of Administrative Remedies
Additional undisputed or admitted facts are set forth. The DOC’s Inmate Administrative
Remedies are set forth in Administrative Directive 9.6. (“AD 9.6”). AD 9.6 became effective
August 15, 2013 and was in effect during the time relevant to the Plaintiff’s claims. The type of
remedy available to an inmate depends on the nature of the condition or decision at issue. The
Inmate Grievance Procedure is the designated administrative remedy for all matters regarding
conditions of confinement, such as placement on in-cell restraints or the refusal to provide hygiene
items. This procedure addresses grievances against custodial correctional officers. However, if an
inmate is seeking a remedy related to medical or mental health claims, he must submit a request
for a Health Services Review. A Health Services Review may be used to address concerns
regarding diagnosis and treatment, or administrative issues. An inmate seeking review of a
diagnosis or treatment issue is directed to seek an informal resolution prior to filing a formal
request for a Health Services Review. If the issue is not satisfactorily resolved informally, the
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inmate is then directed to file an Inmate Administrative Remedy Form seeking a Health Services
Review.
If an informal resolution is unsuccessful, the Health Services Review Coordinator is
required to schedule a Health Services Review Appointment with a medical provider as soon as
possible. If the medical provider concludes that the existing diagnosis or treatment was
appropriate, the inmate is considered to have exhausted his health services review remedy.
Here, the Plaintiff filed an Inmate Administrative Remedy Form (“CN 9602 form”), dated
November 27, 2015. Therein the Plaintiff checked the box “requesting a Health Services Review”
of “Diagnosis/Treatment,” and specifically names “Nurse Angie” (Defendant Nurse Jackson),
“Nurse Margo” (Defendant Nurse Zukowska), and “C/O Franceschi” (Defendant Emmanuel
Franceschi). However, Defendant Franceschi is a custodial correctional officer, not medical
personnel, and so cannot be grieved through a CN 9602 form which seeks a Health Services
Review.
The Prison Litigation Reform Act requires prisoners to exhaust administrative remedies
before filing a federal lawsuit 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. See Booth v. Churner, 532 U.S. 731, 741 (2001). To properly
exhaust a claim, a prisoner must comply with the prison grievance procedures, including utilizing
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each step of the administrative appeal process. Snyder v. Whittier, 428 Fed.Appx. 89, 91 (2d Cir.
2011) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). “An ‘untimely or otherwise procedurally
defective administrative grievance’ ... does not constitute proper exhaustion.” Id. (quoting
Woodford v. Ngo, 548 US. 81, 83-84 (2006)). Alleged special circumstances will not relieve an
inmate of his or her obligation to adhere to the exhaustion requirement. Ross v. Blake, 136 S. Ct.
1850, 1858 (2016). An inmate’s failure to exhaust administrative remedies is only excusable if
remedies are in fact unavailable. Id.
Here, the only effort the Plaintiff made to seek administrative remedies was the submission
of the CN 9602 form. In assessing whether the submission of the CN 9602 form is sufficient to
meet the exhaustion requirement, three categories of Defendants emerge: 1) those properly named
in the form; 2) those improperly named in the form; and 3) those omitted or otherwise not named
in the form. Defendants Jackson and Zukowska, medical personnel appropriately listed on a Health
Services Review form, fall into the first category. The Plaintiff contends therefore that he satisfied
the exhaustion requirement with respect to these Defendants. Defendants Jackson and Zukowska
do not challenge this assertion. The Plaintiff’s claims against Defendants Jackson and Zukowska
are therefore not precluded on this basis.
However, Defendant Franceschi, a corrections officer, is improperly listed on the CN 9602
form requesting a “Health Services Review.” The form allows inmates to identify whether they
are filing a “grievance” or seeking a “Health Services Review.” The form is clear that they cannot
do both with a single form. Because the Plaintiff did not comply with these “critical procedural
rules,” Woodford, 548 U.S. at 93, his attempted grievance against Franceschi is fatally deficient.
The Plaintiff did not therefore exhaust his administrative remedies as to Defendant Franceschi by
filing the CN 9602 form.
7
Finally, the remaining Defendants, Bush, Fontaine, Holmes, Padro and Naqvi,1 a
combination of custodial and medical personnel, are not listed on the CN 9602 form at all. The
Plaintiff did not file any grievance against these defendants or otherwise seek any administrative
remedies with respect to these Defendants. Appropriate grievance and review procedures were
available to the Plaintiff, but he simply did not utilize them. As a result, he has failed to meet the
exhaustion requirement. The Plaintiff does not advance any argument to the contrary with respect
Defendants Bush, Fontaine, Holmes or Padro. Accordingly, the motion for summary judgment is
granted as to Defendants Franceschi, Bush, Fontaine, Holmes, Padro and Naqvi. See 42 U.S.C. §
1997e(a).
Qualified Immunity
In view of the Court’s holding above, the Court addresses the issue of qualified immunity
only as it relates to the remaining defendants, Nurses Jackson and Zukowska.
Qualified immunity “protects government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “affords government
officials ‘breathing room’ to make reasonable—even if sometimes mistaken—decisions.” Distiso
v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (quoting Messerschmidt v. Millender, 565 U.S. 535, 553
(2012)). “The qualified immunity standard is ‘forgiving’ and ‘protects all but the plainly
incompetent or those who knowingly violate the law.’” Grice v. McVeigh, 873 F.3d 162, 166 (2d
Cir. 2017) (quoting Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010)).
1
The Plaintiff avers that, although not expressly named in the CN 9602 form, Dr. Naqvi should nevertheless be
imputed into the complaint against Zukowska, by virtue of her “reliance” on him. However, the Plaintiff offers no
authority for this argument and to the extent it is a “special circumstance” which should excuse exhaustion, such an
argument is precluded under Ross.
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“The doctrine of qualified immunity shields officials from civil liability so long as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotations and
citations omitted). The Court has the discretion to determine the order in which it will address the
inquiries required when assessing the applicability of qualified immunity. See Johnson v. Perry,
859 F.3d 156, 170 (2d Cir. 2017) (quoting Pearson 555 U.S. at 236).
A right is clearly established if, “at the time of the challenged conduct ... every ‘reasonable
official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563
U.S. 731 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). There is no
requirement that a case have been decided which is directly on point, “but existing precedent must
have placed the statutory or constitutional question beyond debate.” Id.2
In addition, qualified immunity protects state actors when it was objectively reasonable for
the state actor to believe that his conduct did not violate a clearly established right. Manganiello
v. City of New York, 612 F. 3d 149, 165 (2d Cir. 2010). “If a reasonable officer might not have
known for certain that the conduct was unlawful – then the officer is immune from liability.”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). Therefore, the question this Court first asks is
whether it was objectively reasonable for Defendants Jackson and Zukowska to believe their
conduct was not unlawful at the time. Simpson v. City of New York, 793 F.3d 259, 268 (2d Cir.
2015).
“[A] broad general proposition” does not constitute a clearly established right. Reichle v. Howards, 566 U.S. 658,
665 (2012). The constitutional right allegedly violated must be established “in a ‘particularized’ sense so that the
‘contours’ of the right are clear to a reasonable official.” Id. (quoting Anderson, 483 U.S. at 640). Recently, the
Supreme Court addressed the issue of qualified immunity and stated that “it is again necessary to reiterate the
longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’” White v.
Pauly, 137 S. Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). “As this Court explained decades ago, the
clearly established law must be ‘particularized’ to the facts of the case.” Id. (citing Anderson, 483 U.S. at 640).
2
9
The accidental administration of incorrect medication does not give rise to an Eighth
Amendment violation. See Rodriguez v. Correct Care Solutions, L.L.C., No. 11 CIV. 2285 PKC
FM, 2012 WL 811515, at *1, *3 (S.D.N.Y. Mar. 8, 2012) (administration of another inmate’s
medicine may have been negligent but if done accidentally, it cannot be the basis for a deliberate
indifference claim). The Second Circuit has repeatedly held that medical negligence and/or a brief
delay in treatment falls short of a Constitutional violation. See Church v. Hegstrom, 416 F.2d 449,
450 (2d Cir. 1969) (“Mere negligence in giving or failing to supply medical treatment alone will
not suffice[.]”); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[N]egligence, even if it
constitutes medical malpractice, does not, without more, engender a Constitutional claim.”);
Johnson v. Wright, 477 F.Supp.2d 572, 576 (W.E.N.Y. 2007) (“That plaintiff may have preferred
a more aggressive course of treatment, or more prompt surgery, does not show that defendants
acted wantonly with the purpose of causing him pain.”); Demata v. N.Y. State Corr. Dept. of Health
Servs., No. 99-0066, 198 F.3d 233 (Table), 1999 WL 753142, at *2 (2d Cir. September 17, 1999)
(a delay in providing necessary medical care may rise to the level of a constitutional violation, but
the Second Circuit has reserved such a classification for cases involving deliberate delay of
treatment as a form of punishment, disregard for a life-threatening and fast degenerating condition,
and extended delay of a major surgery) (collecting cases).
Indeed, to establish an Eighth Amendment violation, the conduct complained of must
“shock the conscience or constitute a barbarous act.” McCloud v. Delaney, 677 F. Supp. 230, 232
(S.D.N.Y. 1988) (citing United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970). In
this context, the Plaintiff “must prove that the Defendants had a culpable state of mind and intended
to wantonly inflict pain.” Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y. 1992), aff’d, 970 F.2d 896
(2d Cir. 1992), cert denied, 506 U.S. 1040 (1992).
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As set forth above, Nurse Jackson mistook the Plaintiff for a different inmate, informed the
Plaintiff that he would be receiving his final dosage of medication, and administered two packets
of suboxone. The Plaintiff admits to “voluntarily open[ing] his mouth and lift[ing] up his tongue
without prompting,” affirming Nurse Jackson’s belief that he was the correct inmate. Admittedly,
Nurse Jackson accidentally administered the suboxone to the Plaintiff. Upon being told by the
Plaintiff that he was not due for any medication, Nurse Jackson discovered her mistake.
Thereafter, she immediately notified her supervisor, Defendant Nurse Zukowski. Plaintiff admits
that Nurse Jackson was “apologetic” toward the Plaintiff. He further admits that Nurse Jackson
“did not mistreat the plaintiff, answered his questions, notified her supervisor of what happened
and followed up with the plaintiff later that morning.” Under these circumstances, an objectively
reasonable nurse in Nurse Jackson’s position would have believed she was acting lawfully and not
in violation of the Plaintiff’s rights.3
When Nurse Jackson advised her supervisor, Nurse Zukowska, that she had accidentally
administered the suboxone to the Plaintiff, Nurse Zukowska met with the Plaintiff, reviewed his
medical file, and called the on-call physician, Dr. Naqvi. Nurse Zukowska provided Dr. Naqvi
with the information in the file. Based upon that information, Dr. Naqvi determined that no
additional medical orders were necessary. Nurse Zukowska followed Dr. Naqvi’s instructions.
Several hours later, Nurse Zukowska visited the Plaintiff in his housing unit. He spoke with her
but he rebuffed her efforts to take his vital signs, asking to see a “real doctor.” When Nurse
Zukowska explained to the Plaintiff that if his vital signs were abnormal, she would take him to
the doctor, he remained steadfast in his refusal. Under these circumstances, an objectively
3
These same undisputed facts also preclude any determination that Nurse Jackson was deliberately indifferent to the
Plaintiff’s serious medical needs in violation of his Eighth Amendment rights.
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reasonable nurse in Nurse Zukowska’s position would have believed she was acting lawfully and
not in violation of the Plaintiff’s rights.4
The Plaintiff did not offer any analysis or argument that the doctrine of qualified immunity
is not applicable to these facts. Viewing these Defendants’ conduct through the lens of the Eighth
Amendment jurisprudence set forth above, it is clear that they are entitled to qualified immunity
as a matter of law. The motion for summary judgment is granted as to Defendants Jackson and
Zukowska.
For the foregoing reasons, the Defendants’ motion for summary judgment is GRANTED
as to all Defendants.
SO ORDERED at Bridgeport, Connecticut, this 29th day of January 2019.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE
4
These same undisputed facts also preclude any determination that Nurse Zukowska was deliberately indifferent to
the Plaintiff’s serious medical needs in violation of his Eighth Amendment rights.
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