Patterson v. Anna et al

Filing 68

ORDER. For the reasons stated in the attached, the 50 motion for summary judgment is GRANTED. The 19 motion for summary judgment is DENIED. The 58 motion for cross-summary judgment is DENIED as moot. The 21 and 27 motions for ruling are DEN IED as moot. The 67 motion to appoint counsel is DENIED as moot. The Clerk is directed to enter judgment for the defendants, mail a copy of the ruling to the plaintiff, and close this case.Signed by Judge Michael P. Shea on 1/9/2018. (Mac Dougall, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LAWRENCE PATTERSON,
Plaintiff,
v.
NURSE ANNA, et al.
Defendants.

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CASE NO. 3:16-cv-1917 (MPS)

January 9, 2018

________________________________________________________________________
RULING ON MOTIONS FOR SUMMARY JUDGMENT
On November 21, 2016, plaintiff Lawrence Patterson, a former inmate of the
Connecticut Department of Correction (“DOC”), brought a civil complaint (ECF No. 1)
pro se under 42 U.S.C. § 1983 against Anna Okonkwo and Nancy Walton,1 two nurses
employed at the Bridgeport Correctional Center (“BCC”) in Bridgeport, Connecticut, in
their individual and official capacities for damages and declaratory relief. The complaint
is based on events that allegedly occurred in August and October of 2011 while the
plaintiff was incarcerated at BCC.2 On December 9, 2016, this Court issued its Initial
Review Order (ECF No. 10) permitting the complaint to proceed against the defendants.
In so ruling, however, the Court noted that the plaintiff’s claims may be time-barred by
the three-year statute of limitations under Conn. Gen. Stat. § 52-577 unless the plaintiff’s
case satisfies the continuing violation doctrine or the equitable tolling doctrine. See
Initial Review Order at 3. The defendants answered the complaint on September 20,

At the time he filed his complaint, the plaintiff identified the defendants only as “Nurse Anna” and “Nurse
Nancy.” Discovery later revealed their last names.
1

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The plaintiff has since been released from DOC custody.

2017. Answer (ECF No. 31). Among the affirmative defenses asserted, the defendants
argued that the plaintiff’s claims were barred by the statute of limitations. Id. at 6.
On May 5, 2017, the plaintiff filed a motion for summary judgment (ECF No. 19).
He asserts that his claims against the defendants are not time-barred and that there are no
genuine issues of material fact with respect to their liability. The defendants filed an
opposition to the plaintiff’s motion on October 13, 2017, arguing that the plaintiff’s
claims are unsupported and that the evidence shows “clear disputes of material fact.”
Defs.’ Mem. of Law in Opp’n to Pl.’s Mot. Summ. J. (ECF No. 42). On October 23,
2017, the defendants filed their own cross-motion for summary judgment (ECF No. 50).
They argue that the plaintiff’s claims are barred by the statute of limitations and that the
plaintiff is not entitled to tolling under either the continuing violation or equitable tolling
doctrines. Mem. in Supp. of Defs.’ Mot. Summ. J. (ECF No. 59). The plaintiff counters
that the limitations period under § 52-577 should be tolled under the circumstances of his
case. Pl.’s Mem. in Opp’n to Defs.’ Mot. Summ. J. (ECF No. 63). For the following
reasons, the Court will deny the plaintiff’s motion for summary judgment and grant the
defendants’ cross-motion for summary judgment.
I.

Relevant Legal Principles
In a motion for summary judgment, the burden is on the moving party to establish

that there are no genuine disputes of material fact and that he or she 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 a dispute is “genuine” if “a
reasonable jury could return a verdict for the nonmoving party” based on the evidence in
the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Dister v.

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Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (mere existence of alleged
factual dispute will not defeat summary judgment motion). The moving party may
satisfy this burden “by showing—that is pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curium) (internal quotation marks and
citations omitted).
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. In reviewing the record, the court must “construe the evidence in the light most
favorable to the non-moving party and . . . draw all reasonable inferences in [his] favor.”
Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir.
2013) (citation omitted).
Where one party is proceeding pro se, the court 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

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for summary judgment. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000), cert. denied, 540 U.S. 811 (2003).
II.

Facts
The following facts are taken from the parties’ Local Rule statements and from

the record. They are undisputed unless otherwise indicated.
The plaintiff was incarcerated at BCC from August 4, 2011 until August 9, 2011.
Pl.’s Local Rule 56(a)1 Statement (“L.R. 56(a)1 Stmt.”) (ECF No. 19-1) ¶ 1; Defs.’ Local
Rule 56(a)2 Statement (“L.R. 56(a)2 Stmt.”) (ECF No. 42-1) ¶ 1; Defs.’ L.R. 56(a)1
Stmt. (ECF No. 57) at ¶ 1. On a number of occasions during those dates, the plaintiff
allegedly complained to defendant Okonkwo about severe abdominal pain. Compl. 4;
Pl.’s L.R. 56(a)1 Stmt. at ¶ 2; Aff. of Nurse Anna Okonkwo (“Okonkwo Aff.”) (ECF No.
42-3) at ¶ 5. Okonkwo has no recollection of treating the plaintiff at BCC. Okonkwo
Aff. at ¶ 14. According to the plaintiff, Okonkwo “refused to let [him] see the doctor” at
that time and told him to file a written Inmate Request form for a doctor’s appointment,
which he says he did. Compl. 4; Defs.’ L.R. 56(a)1 Stmt. at ¶ 6. Okonkwo avers,
however, that her review of the plaintiff’s medical history shows no record of his filing
an Inmate Request Form from August 4 to August 9. Okonkwo Aff. at ¶¶ 8, 22. On
August 5, the plaintiff told Okonkwo that the pain was worsening, and Okonkwo
responded by saying that it “was probably the flu.” Id. at ¶ 9. Although she does not
recall treating the plaintiff, Okonkwo affirms that, when a patient complains of pain and
her observations and interactions with the patient show no signs of grave distress, her
customary practice is to instruct the patient to submit an Inmate Request Form to see the
doctor. Id. at ¶ 23; Defs.’ L.R. 56(a)1 Stmt. at ¶ 7.

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On August 9, a correction officer at BCC reported to the medical unit that the
plaintiff was suffering from abdominal pain. Defs.’ L.R. 56(a)1 Stmt. at ¶ 9. Nurse
Birks transported the plaintiff to the medical unit where Dr. Elderkin ordered that the
plaintiff be sent to the emergency room at St. Vincent’s Hospital. Id. at ¶¶ 10–13; Pl.’s
L.R. 56(a)1 Stmt. at ¶ 3. There, it was revealed that the plaintiff, who has a history of
diverticulitis, had an acute pneumoperitoneum, a perforated viscus, and perforated
diverticulitis. Defs.’ L.R. 56(a)1 Stmt. at ¶ 14. The plaintiff underwent surgery for his
condition. See id. at ¶ 15; Pl.’s L.R. 56(a)1 Stmt. at ¶ 3. He returned to BCC on October
5, 2011. Defs.’ Ex. 5 (ECF No. 50-7) at 5.
Medical records show that, upon his return to BCC, defendant Walton assisted the
plaintiff with changing the dressing on his surgical wound. Defs.’ L.R. 56(a)1 Stmt. at ¶
16. Like Okonkwo, however, Walton has no recollection of treating the plaintiff. Id. at ¶
18; Aff. of Nurse Nancy Walton (“Walton Aff.”) (ECF No. 42-2) at ¶ 10. The plaintiff
alleges that Walton refused to change his colostomy bag on October 16, 2011, after it had
broken open. Pl.’s L.R. 56(a)1 Stmt. at ¶ 9; Defs.’ L.R. 56(a)1 Stmt. at ¶ 17. It was
Walton’s usual and customary practice to provide patients with materials and supplies to
change their colostomy bags. Walton Aff. at ¶ 22. According to Walton’s review of the
Department of Correction Unit Log, the plaintiff notified correction officers around 8:00
p.m. on October 16 that the adhesive tape had come off his colostomy bag and needed to
be reapplied. See id. at ¶ 30; Defs.’ Ex. 4 (ECF No. 50-6) at 2. The correction officer
spoke with Walton who informed him that Nurse Elizabeth would help the plaintiff.
Walton Aff. at ¶ 30; Defs.’ Ex. 4 at 2. Nurse Elizabeth then instructed the plaintiff to go
to the medical unit. Walton Aff. at ¶ 30; Defs.’ Ex. 4 at 2–3. Medical records show that

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the plaintiff was seen by the medical unit the next morning and that his dressing was
changed. Walton Aff. at ¶ 44; Defs.’ Ex. 2 at 9.
On August 9, 2012, the plaintiff filed a written request with the State of
Connecticut Office of the Claims Commissioner to sue the State of Connecticut for
negligence based on inadequate medical treatment. Pl.’s L.R. 56(a)1 Stmt. at ¶ 4; Pl.’s
Ex. D (ECF No. 19-7). In that request, the plaintiff alleged that he had complained to a
nurse on August 4, 2011, that he was in pain. Pl.’s Ex. D. He did not, however, mention
either Okonkwo or Walton by their first or last names in that complaint. See Defs.’ L.R.
56(a)1 Stmt. at ¶¶ 24–25. On July 30, 2013, the State of Connecticut moved to dismiss
the claim for lack of subject matter jurisdiction, asserting that the injury occurred outside
the one-year time limitation established under Conn. Gen Stat. § 4-148(a). Defs.’ L.R.
56(a)1 Stmt. at ¶ 26. On September 18, 2015, the Claims Commissioner issued a
memorandum of decision authorizing the suit against the State of Connecticut. Defs.’ Ex.
10 (ECF No. 50-11). The Commissioner found credible the plaintiff’s allegation that the
State “breached its duty of care to the [plaintiff] by failing to promptly provide medical
treatment despite intense pain and suffering.” Id. at 3. However, the Commissioner was
not convinced that the plaintiff could prove “substantial damages” from the alleged
breach. Id. There is no evidence in the record showing that the plaintiff filed a civil
action in state court following the Claims Commissioner’s authorization.
The plaintiff did not file this action until November 21, 2016. In his complaint,
he alleged that the defendants violated his Eighth Amendment protection against cruel
and unusual punishment by acting with deliberate indifference to his serious medical
needs. Specifically, he alleged that Okonkwo acted with deliberate indifference by

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refusing to let him see the doctor from August 4 to August 9, 2011, and that Walton acted
with deliberate indifference by refusing to change his colostomy bag on October 16,
2011. The defendants did not receive notice of the action until February 17, 2017. Defs.’
L.R. 56(a)1 Stmt. at ¶¶ 31, 35; Okonkwo Aff. ¶ 27; Walton Aff. at ¶ 46.
III.

Analysis
The plaintiff claims he is entitled to summary judgment in his favor because there

are no genuine issues of material fact with respect to his Eighth Amendment claim
against the defendants. See Pl.’s Mem. of Law in Supp. of Mot. Summ. J. (ECF No. 194) at 5. However, as shown above, there are several material facts still in dispute.
Neither defendant recalls treating the plaintiff in the fall of 2011. Okonkwo Aff. at ¶ 14;
Walton Aff. at ¶ 10. Further, although the record shows that Okonkwo instructed the
plaintiff to file an Inmate Request Form to see the doctor, there is no evidence that she
took steps to prevent him from receiving medical care from August 4 to August 9, 2011.
With respect to Walton, the record shows that she did provide him medical care on
October 6, and, when the plaintiff requested assistance with his colostomy bag on
October 16, she instructed Nurse Elizabeth to assist him. Defs.’ L.R. 56(a)1 Stmt. at ¶
16; Walton Aff. at ¶ 30. Nevertheless, the plaintiff maintains that his allegations show
that both defendants were deliberately indifferent to his medical care. Because the record
still shows genuine issues of material fact, particularly regarding the defendants’
responses to the plaintiff’s medical requests, the plaintiff is not entitled to judgment as a
matter of law. His motion for summary judgment (ECF No. 19) is, therefore, DENIED.
The defendants’ motion for summary judgment (ECF No. 50) is grounded on the
claim that the plaintiff’s case is barred by the three-year statute of limitations for § 1983

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actions. They argue that there is no genuine issue of material fact with respect to when
the events that gave rise to the complaint occurred and when the complaint was filed.
The plaintiff does not dispute those dates but argues that the court should toll the
limitations period under the continuing violation doctrine and/or the equitable tolling
doctrine. The court agrees with the defendants that the plaintiff’s case is time-barred and
that tolling of the limitations period is not warranted.
Section 1983 claims arising in Connecticut are governed by the three-year
limitations period set forth in § 52-577. Harnage v. Torres, 665 F. App’x 82, 83 (2d Cir.
2016); Lounsbury v. Jeffries, 25 F.3d 131, 132–34 (2d Cir. 1994). “Although a federal
court looks to state law to determine the applicable statute of limitations for claims
arising under section 1983, it must look to federal law to determine when a federal claim
accrues.” Castillo v. Hogan, 14 Civ. 1166 (VAB), 2016 WL 706167, *3 (D. Conn. Feb.
22, 2016) (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)). The Second Circuit has
held that accrual occurs when the plaintiff “knows or has reason to know of the injury
which is the basis of his action.” Harnage, 665 F. App’x at 83 (quoting Hogan v.
Fischer, 738 F.3d 509, 518 (2d Cir. 2013)).
In this case, the plaintiff does not dispute the date upon which his Eighth
Amendment claim against the defendants accrued or the date he commenced this action
in federal court. At the latest, his claim accrued on October 16, 2011, when defendant
Walton allegedly refused to assist him in changing his colostomy bag. He did not
commence this action until November 21, 2016, more than five years after the accrual
date. This far exceeds the three-year limitations period permitted by § 52-577.
Therefore, the plaintiff’s Eighth Amendment claim is time-barred.

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The plaintiff argues that the three-year limitations period should be tolled,
however, for two reasons. First, he argues that “the defendant[s] committed an initial
wrong upon [him], owed a continuing duty to [him] that was related to the initial wrong
upon [him], and breached that duty.” Pl.’s Mem. in Opp’n to Defs.’ Mot. Summ. J. at 4
(citing Witt v. St. Vincent’s Med. Ctr., 252 Conn. 363 (2000)). Second, he argues that he
is entitled to equitable tolling because he (1) was unable to obtain the names of the
defendants until “right before his filing;” and (2) “had to first file his claim with the
[C]laims [C]ommissioner and ask for permission to [s]ue the state befor[e] he could file
hi[s] complaint in federal court.” Id. at 1–2.
With respect to his first argument, it appears the plaintiff is attempting to assert
that his claim satisfies the continuing violation doctrine, which the Second Circuit has
made applicable to deliberate medical indifference claims under the Eighth Amendment.
Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009). “To assert a continuing
violation for statute of limitations purposes, the plaintiff must allege both the existence of
an ongoing policy of deliberate indifference to his or her serious medical needs and some
non-time-barred acts taken in the furtherance of that policy.” Id. (internal quotation marks
and alterations omitted). The plaintiff, however, has not alleged any facts showing that
the defendants’ actions amounted to a “policy” or that either defendant committed any
acts within the limitations period that might be described as being “in furtherance of”
such a policy. His Eighth Amendment claim against defendant Okonkwo is based on her
alleged refusal to let him see a doctor from August 4 to August 9, 2011, and his claim
against Walton is based on her refusal to help him with his colostomy bag on October 16,
2011. The plaintiff acknowledges that he received treatment for his abdominal pain on

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August 9, 2011, and that other medical personnel did assist him with his colostomy bag
on October 16, 2011. See Defs.’ Ex. 18 (ECF No. 50-19) at 5–7. There are no facts
suggesting that the defendants’ discrete acts were part of a “policy” of deliberate
indifference or that either committed any acts after October 16, 2011. Therefore, the
continuing violation doctrine does not apply to the plaintiff’s claim and does not toll the
limitations period.3
The plaintiff’s second argument is one of equitable tolling. “Equitable tolling
permits courts to extend a statute of limitations on a case-by-case basis to prevent
inequity.” Colon v. Potter, 51 F. App’x 43, 46 (2d Cir. 2002) (internal quotations
omitted). Application of the equitable tolling doctrine is “only appropriate in rare and
exceptional circumstances . . . in which a party is prevented in some extraordinary way
from exercising his rights . . . .” Id. (internal quotation marks and citations omitted). The
party seeking equitable tolling bears the burden of proving that he acted with reasonable
diligence during the time he seeks to have tolled. See id. Here, the plaintiff argues that
he was unable to obtain the names of the defendants until shortly before filing his
complaint on November 21, 2016. However, the plaintiff could have filed suit against
both defendants as “Jane Does” until he was able to identify both of their names in

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The language and case law actually invoked by the plaintiff suggest he may also be asserting a somewhat
different Connecticut state-court tolling doctrine known as “continuous course of conduct,” (see ECF No.
63 at 4), but that doctrine does not apply here either. Under that doctrine, a statute of limitations may be
tolled if there is evidence of a breach of duty that remained in existence after the commission of an initial
wrong. There is no such evidence in the record. The plaintiff had no further dealings with either defendant
after December 2011, as he was never housed at the facility at which they worked after that time. There is
no evidence to support the notion that either defendant worked at any other facilities at which he was
housed or otherwise was involved in any way in his treatment after he left the Bridgeport Correctional
Center in December 2011. (ECF No. 50-19 at 5, 7.) Consequently, no reasonable juror could find on this
record that either defendant owed the plaintiff a duty that “remained in existence after commission of the
original wrong related thereto” either because of a “special relationship between the parties giving rise to
… a continuing duty or some later wrongful conduct of a defendant related to the prior act.” Witt v. St.
Vincent’s Med. Ctr., 252 Conn. 363, 369–70 (2000).

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discovery. See Glonti v. Stevenson, 08 Civ. 8960 (CM), 2009 WL 311293, *10
(S.D.N.Y. Feb. 6, 2009) (rejecting plaintiffs’ argument that limitations period should be
tolled based on ignorance of their names at time complaint was filed). As the defendants
point out, the plaintiff has filed multiple cases in this court, at least one of which involved
“John Doe” and “Jane Doe” defendants, see, e.g., Cousineau v. Armstrong, 95 Civ. 1084
(AVC) (D. Conn. Jun. 9, 1995),4 and, thus, would be familiar with the procedure for
suing defendants without knowing their full names. Further, the plaintiff was represented
by counsel shortly after his claim arose and when he was pressing his claim against the
State with the Claims Commissioner, (ECF No. 50-19 at 4; ECF No. 63-1 at 1, 11), and
the record shows that DOC provided the plaintiff with copies of his medical records on
October 4, 2011. (ECF No. 49 at 47–49.) Thus, the Court is not convinced that the
plaintiff was unable, through due diligence, to obtain the names of these defendants
during the time he seeks to have tolled.
The plaintiff’s argument that he had to wait to commence this action until after
the Claims Commissioner approved his request to sue the State is also without merit.
There is no requirement that the plaintiff seek approval from the State Claims
Commissioner before filing suit against state employees in federal court for constitutional
violations, see Conn. Gen. Stat. §§ 4-142 et seq., and courts have rejected similar tolling
arguments. See Harnage, 665 F. App’x at 83–84 (rejecting plaintiff’s argument that
filing state court complaint based on same facts alleged in federal complaint tolls statute
of limitations for federal claims); Perez v. O’Brien, 14 Civ. 1054 (ADB), 2017 WL
690997, *3 (D. Mass. Feb. 21, 2017) (fact that plaintiff was litigating § 1983 claim in

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The plaintiff’s former name was “Lawrence R. Cousineau.” See Defs.’ Ex. 11 (ECF No. 50-12) at 2.

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state court does not constitute grounds for tolling); Tavares v. New York City Health and
Hospitals Corp., 13 Civ. 3148 (PKC)(MHD), 2015 WL 158863, *9 (S.D.N.Y. Jan. 13,
2015) (rejecting plaintiff’s argument that medical malpractice action in state court tolls
statute of limitations for federal case); Cancel v. Mazzuca, 01 Civ. 3129 (NRB), 2003
WL 1702011, *3 (S.D.N.Y. Mar. 28, 2003) (rejecting plaintiff’s argument that court is
required to toll limitations period for time in which he pursued state court remedy); Berry
v. Keller, 157 F. App’x 227, 230 (11th Cir. 2005) (plaintiff not entitled to tolling for time
spent pursuing relief in state court). Moreover, the claim the plaintiff sought to pursue in
state court, but never did, was a common law negligence action against the State of
Connecticut, rather than a constitutional claim against Nurses Okonkwo and Walton. See
Defs.’ Ex. 7 (ECF No. 50-8). None of the filings before the Claims Commissioner in the
record identified either of the defendants in this action, and both defendants have
submitted affidavits averring that they were unaware of the plaintiff’s claims against
them until they were served with the complaint in this action in February 2017. Thus, to
permit tolling of the limitations period in this case would conflict with the wellestablished purposes of the statute of limitations, which are to “(1) prevent the
unexpected enforcement of stale and fraudulent claims . . . and (2) . . . aid in the search
for truth that may be impaired by the loss of evidence, whether by death or disappearance
of witnesses, fading memories, disappearance of documents or otherwise.” Tarnowski v.
Socci, 271 Conn. 284, 296 (2004) (quoting DeLeo v. Nusbaum, 263 Conn. 588, 596
(2003)). Neither defendant in this case had any reason to suspect that she would be
subject to suit by the plaintiff in federal court, and, perhaps because of the significant
lapse in time, neither recalls treating the plaintiff in the fall of 2011, when the

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constitutional violations allegedly arose. Okonkwo Aff. at ¶ 14; Walton Aff. at ¶ 10.
Therefore, the court is not convinced that the plaintiff is entitled to equitable tolling of the
statute of limitations.
The plaintiff’s reliance on Aryeh v. Canon Business Solutions, Inc., 55 Cal. 4th
1185, 292 P.3d 871 (2013) is misplaced. There, the California Supreme Court held that a
court “may suspend or extend the statute of limitations period when a plaintiff has
reasonably and in good faith chosen to pursue one among several remedies and the statute
of limitations’ notice function has been served.” Id. at 875. This holding is inapposite
because the plaintiff’s request for authorization to sue the State of Connecticut in state
court did not put either defendant on notice that she would be sued in federal court. The
plaintiff did not identify either of the defendants in the request, and there is no evidence
in the record that he pursued a remedy against the State or any of its representatives after
being granted the authorization from the Commissioner. Thus, the plaintiff is not entitled
to equitable tolling.
The Court concludes that the case is barred by the three-year statute of limitations.
ORDER
(1) The plaintiff’s motion for summary judgment (ECF No. 19) is denied. The
defendants’ motion for summary judgment (ECF No. 50) is granted.
(2) The plaintiff’s motions for ruling on his motion for summary judgment (ECF
Nos. 21, 27) are denied as moot. His motion for appointment of counsel (ECF No. 67) is
also denied as moot.
(3) The Clerk is directed to enter judgment for the defendants, mail a copy of this
ruling to the plaintiff, and close this case.

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It is so ordered.
Dated at Hartford, Connecticut this 9th day of January 2018.

/s/
Michael P. Shea, U.S.D.J.

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