Ramos v. Uconn Health et al

Filing 93

ORDER terminating 58 Motion for Summary Judgment; granting 80 Motion for Summary Judgment for the reasons set forth in the attached memorandum of decision. Signed by Judge Kari A. Dooley on 8/25/19. (Dooley, Kari)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSE RAMOS,
Plaintiff,
v.
KEVIN MCCRYSTAL, ET AL.,
Defendant.

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Case No. 3:17cv326(KAD)

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT (ECF #58, ECF # 80)
Preliminary Statement
The plaintiff, Jose Ramos (“Ramos”), brings this civil rights action against Kevin
McCrystal (“P.A. McCrystal”), a Physician Assistant1 with the Connecticut Department of
Correction, alleging deliberate indifference to his serious medical needs in violation of the
Eighth Amendment of the United States Constitution.2 Specifically, by Amended Complaint
dated August 29, 2017, Ramos asserts that on June 27, 2017 he advised P.A. McCrystal that he
was suffering from extreme shoulder pain but that P.A. McCrystal provided no treatment and in
fact discontinued his prescription pain medications. Both Ramos and P.A. McCrystal have
moved for summary judgment. For the reasons set forth below, P.A. McCrystal’s motion for
summary judgment is GRANTED and Ramos’ motion for summary judgment is therefore not
reached.

1Ramos

listed Physician Assistant McCrystal as Dr. McCrystal in the amended complaint. It is clear from
P.A. McCrystal’s Declaration filed in support of his motion for summary judgment that he is a physician assistant
and not a physician. Accordingly, in this ruling, the court refers to defendant P.A. McCrystal by his proper title.
2 After conducting its initial review of the plaintiff’s amended complaint, the court dismissed all other
claims asserted against P.A. McCrystal as well as numerous other previously named defendants. See Ruling and
Order, ECF No. 28.

Standard of Review
When seeking summary judgment, the moving party bears the burden of demonstrating
“that there is no genuine dispute as to any material fact and [that it] 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 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).
If 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 come forward with specific evidence demonstrating the existence of a genuine
dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir.
2015) (citation omitted). And the non-moving party must do more than vaguely assert the
existence of some unspecified disputed material facts or “rely on conclusory allegations or
unsubstantiated speculation.” Id. The court 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). The court may not, however, “make credibility determinations or weigh the evidence. .
. . [because] [c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Proctor v.
LeClaire, 846 F.3d 597, 607–08 (2d Cir. 2017) (internal quotation marks and citations omitted).
If there is any evidence in the record from which a reasonable factual inference could be drawn
in favor of the opposing party on the issue on which summary judgment is sought, however,

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summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion Freight Line
Inc., 391 F.3d 77, 83 (2d Cir. 2004).
On cross-motions for summary judgment the same standard applies. See Morales v.
Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). “Where ‘parties file [ ] cross-motions for
summary judgment [,] ... each party's motion must be examined on its own merits, and in each
case all reasonable inferences must be drawn against the party whose motion is under
consideration.” Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 822 F.3d 620, 631
n. 12 (2d Cir. 2016) (citing Morales, 249 F.3d at 121).
Finally, the court recognizes its obligation to read a pro se party’s papers liberally and
and to 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, allegations unsupported by admissible evidence “do not create a
material issue of fact” and cannot overcome a properly supported motion for summary judgment.
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Facts3
P.A. McCrystal was assigned to the MacDougall-Walker Correctional Institution
(“MacDougall-Walker”) as a physician assistant from 2004 to 2018. P.A. McCrystal Decl. ¶ 4.
He worked in the Walker building for approximately six years and worked in the MacDougall
building for approximately eight years. Id. ¶¶ 4-5. As a physician assistant, he managed the
Chronic Disease Clinic (“CDC”), handled inmate sick calls, prescribed medications for inmates

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The facts are taken from the P.A. McCrystal’s Local Rule 56(a)1 Statement (“Def.’s L.R. 56(a)1”);
Exhibits A-E, filed in support of the Local Rule 56(a)1 Statement; Ramos’s Local Rule 56(a)1 Statement (“Pl.’s
L.R. 56(a)1”) and Affidavit and Exhibits 1-26 in support of the Statement, and Ramos’s Local Rule 56(a)2
Statement (“Pl.’s L.R. 56(a)2”) and Exhibits A & B in support of the Statement.

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and provided assistance to physicians when necessary. Id. ¶ 7.
Ramos is a sentenced prisoner in the custody of the Department of Correction (“DOC”).
Ramos asserts and his medical records confirm that in October 2012, shortly after his admission
to DOC custody, he began complaining to medical providers at Corrigan-Radgowski
Correctional Institution about pain and limited mobility in his shoulders. Thereafter, between
October 2012 and August 2016, medical providers at various DOC facilities prescribed Motrin to
treat his shoulder pain. Pl.’s L.R. 56(a)1, Exs. 2-4, 6-17. On June 17, 2016, Ramos was
transferred to the MacDougall building of MacDougall-Walker. Pl.’s L.R. 56(a)2, Ex. B at 53.
On May 4, 2017, Ramos submitted an Inmate Request Form4 to Supervisor Rikel
Lightner indicating that he had written multiple times to medical supervisors asking to be seen
by a physician and seeking a prescription for medication to treat his shoulder pain. Def.’s L.R.
56(a)1 ¶ 1; Pl.’s L.R. 56(a)2, Ex. B at 32. On May 11, 2017, P.A. McCrystal reviewed Ramos’
medical chart, noted that the last x-ray of Ramos’s shoulders revealed minimal degenerative joint
disease, and prescribed 600 milligrams of Motrin to be taken twice a day for three months to
alleviate Ramos’s complaints of shoulder pain. Def.’s L.R. 56(a)1 ¶ 2; Ex. B at 8.
On June 27, 2017, P.A. McCrystal met with Ramos in the CDC to assess Ramos’ chronic
asthma condition. Def.’s L.R. 56(a)1, ¶ 4. Ramos had not requested to be seen for his asthma
condition. Pl.’s L.R. 56(a)2 ¶ 5. During the June 27 appointment, Ramos complained of
shoulder pain. Def.’s L.R. 56(a)1 ¶ 5; Ex. B at 8. P.A. McCrystal advised Ramos of the
protocols for submitting a request to be seen for a more thorough evaluation of his complaint of
shoulder pain. Def.’s L.R. 56(a)1 ¶ 7. Although he alleges to the contrary in the Amended

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This Form, a CN6901, is the omnibus form by which inmates communicate requests to the DOC.

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Complaint,5 Ramos now concedes that he continued to receive Motrin for his shoulder pain until
August 8, 2017 pursuant to the order issued by P.A. McCrystal on May 11, 2017. Id. ¶ 10.
Ramos received an inmate handbook when he arrived at MacDougall-Walker in 2016.
Id. ¶ 18. Ramos is familiar with the Department of Correction’s administrative remedies
process. Id. ¶ 17. Ramos did not file a request for health services review regarding his shoulder
pain or the alleged inadequacy of his treatment on June 27, 2017. Id. ¶ 22.
Discussion
Ramos claims that P.A. McCrystal was deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment prohibition against cruel and unusual punishment
when, on June 27, 2017, he failed to treat Ramos in response to Ramos’ complaint of shoulder
pain. P.A. McCrystal raises three arguments in support of his motion for summary judgment.
He asserts that Ramos did not exhaust available administrative remedies as to the claim that he
was deliberately indifferent to Ramos’s medical needs on June 27, 2017; that even if proven, the
allegations fail to establish deliberate indifference to Ramos’s medical needs, and that he is
entitled to qualified immunity. Ramos, in support of his motion for summary judgment,
contends that there is no dispute that he suffered from a serious medical need and that P.A.
McCrystal acted with deliberate indifference to that need.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), requires a prisoner to
exhaust “administrative remedies as are available” before bringing an “action ... with respect to
prison conditions.” This provision requires an inmate to exhaust administrative remedies before
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Ramos alleged that P.A. McCrystal affirmatively stopped the administration of Motrin following the June
27, 2017 assessment.

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filing any type of action in federal court. See Porter v. Nussle, 534 U.S. 516, 532 (2002). The
PLRA requires “proper exhaustion” which includes complying with all “procedural rules”
required by the particular prison grievance system. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
Thus, “procedurally defective attempts to secure administrative remedies do not satisfy the
PLRA’s exhaustion requirements.” Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir.
2006) (quoting Woodford, 548 U.S. at 83-84).
Failure to exhaust administrative remedies pursuant to the 42 U.S.C. § 1997e(a) is an
affirmative defense. See Jones v. Bock, 549 U.S. 199, 215 (2007). Thus, it is a defendant’s
burden to prove that an inmate did not exhaust his or her remedies prior to filing the action in
court. See Johnson v. Mata, 460 Fed. App’x 11, 15 (2d Cir. 2012) (“The defendants have the
burden of showing that there is no genuine issue of material fact as to exhaustion that would
preclude summary judgment.”).
On this issue, additional undisputed facts are necessary. Inmate concerns or grievances
relating to medical issues are governed by Administrative Directive 8.9 (AD 8.9). AD 8.9
provides Health Services Review procedures to address two types of issues or claims regarding
the medical, dental or mental health care of an inmate: (1) Diagnosis and Treatment issues and
(2) Administrative issues involving a procedure, practice, policy or improper conduct of a health
services provider. See id. at 8.9(9)(A) & (B). An inmate seeking review of a diagnosis or
treatment issue or an administrative issue must first attempt to seek informal resolution either by
speaking to the appropriate staff member or by sending a written request to a supervisor. See id.
at 8.9(10). The supervisor must respond to a written attempt at informal resolution within fifteen
calendar days of receipt of the request. See id. If an inmate is not happy with the informal
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resolution of his or her issue, he or she may file an Inmate Administrative Remedy form, CN
9602, seeking a Health Services Review of his diagnosis or treatment or the administrative issue.
See id. at 8.9(11) & (12).
If the inmate seeks review of his diagnosis or the treatment or lack of treatment of a
medical condition, the Health Services Review Coordinator is required to schedule a Health
Services Review Appointment with an appropriate medical provider as soon as possible. See id.
at 8.9(11)(A). If, after the appointment, the provider concludes that the existing diagnosis or
treatment is appropriate, the inmate is deemed to have exhausted his or her health services
review remedy. See id. If the provider reaches a different conclusion with regard to the
appropriate diagnosis or course of treatment for the inmate’s condition, he or she may either
provide the appropriate diagnosis or treatment or refer the case to the Utilization Review
Committee for authorization indicating the need for different treatment. See id. at 8.9(11)(B).
If the inmate seeks review of an administrative issue,6 the Health Services Coordinator is
required to evaluate, investigate and decide the matter within thirty days. See id. at 8.9(12)(A).
If the inmate is not satisfied with the response to his or her request for review, he or she may
appeal the decision within ten business days of receiving the decision. See id. at 8.9(12)(B). The
health services provider or the designated facility health services director must decide the appeal
“within fifteen business days of receiving the appeal.” See id. at 8.9(12)(C). 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. See id. at 8.9(12)(D).
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Ramos’ claim appears to fall squarely within the provisions regarding treatment or lack of treatment. The
court includes discussion regarding administrative issues in the event his concern might be characterized as such.

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There is no dispute that these administrative remedies were in effect in the State of
Connecticut Department of Correction in June through August of 2017. Ramos acknowledges
that he received an inmate handbook which outlined these procedures at the time he arrived at
MacDougall-Walker in 2016. He also acknowledged that he was aware of the Department of
Correction’s Inmate Administrative Remedies procedures. Def.’s L.R. 56(a)1 ¶¶ 17-18; Ex. C,
Ramos Dep. at 20:10-12; 22:13-19. Indeed, at his deposition he was able to describe the process
in some detail. Id. at 22-23. Accordingly, Ramos knew that he was required to attempt an
informal resolution of his concern, and failing that, to file a request for a health services review
of his treatment (or lack of treatment) for his shoulder.
The evidence is not in dispute that Ramos did neither. He does not purport to have made
any effort to informally resolve the issue of P.A. McCrystal’s alleged failure to provide him with
treatment on June 27, 2017. Nor do his medical records reflect any such attempt. Def.’s L.R.
56(a)1, Ex. B at 8, 9. Ramos did not see P.A. McCrystal again until December 27, 2017,7 when
Ramos was summoned to the CDC for an appointment to assess his chronic asthma condition.
And although Ramos testified that he filed a “grievance” against P.A. McCrystal following the
June 27, 2017 encounter, he was unable to produce a copy of the grievance and the DOC has no

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On December 27, 2017, Ramos demanded treatment for his shoulder and the incident escalated briefly.
Thereafter, Ramos sent a cease and desist letter to P.A. McCrystal. At his deposition, Ramos testified as follows:
Q. Apart from your interaction with Mr. McCrystal, did you file a health service review regarding your
shoulder pain?
A. No. I did not. I sent [the cease and desist letter] to the hospital after dealing with Mr. McCrystal.
Q. Did you ever file a grievance about Mr. McCrystal’s behavior during that day?
A. This right here, that was it [referring the cease and desist letter] Not with the Department of Corrections
but with his hospital, with him and his hospital.
Q. So nothing internally?
A. No. I don’t consent to doing business with the Department of Corrections.
This exchange further supports the conclusion that Ramos did not file any form of grievance following the
June 27, 2017 encounter prior to filing the Amended Complaint.

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record of any such grievance. In fact, at his deposition, because he does not “consent to doing
business” with the DOC, Ramos testified that he uses what he calls an “international grievance”
and his own notice and demand letters to challenge denials of medical treatment or other conduct
by Department of Correction employees. Finally, as noted, Ramos testified at his deposition that
he did not file a request for Health Services Review regarding P.A. McCrystal’s failure to treat or
diagnose the cause of his shoulder pain.
Ramos does not address the exhaustion issue beyond asserting that “DOC officials must
respond to inmate request form(s) in a timely manner and if not then the inmates remedies are
exhusted (sic.) (Whitington v. Ortiz, 472 F. 3d 804 (10th Cir. 2007).” However, the claim against
P.A. McCrystal does not derive from or follow any failure to respond to an inmate request form.
It derives from P.A. McCrystal’s purported failure to diagnose and/or treat Ramos’ shoulder pain
when he was seen by P.A. McCrystal on June 27, 2017, a claim for which administrative
remedies were clearly available.8
Neither an “international grievance” nor a notice and demand letter9 constitute a request
for a Health Services Review as delineated in the administrative remedy procedures set forth in
Administrative Directive 8.9. Given the specific remedy provided by the Department of

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This argument is emblematic of a more significant problem with Ramos’ case. Throughout his
submissions, he refers to events that have nothing to do with this Defendant, as if P.A. McCrystal is responsible for
all manner and means of Ramos’ medical treatment by DOC personnel. He relies upon the events of December 27,
2017 as supporting his claim, events which post-date the Amended Complaint by four months; he acknowledges that
he “did receive medication for a short amount of time and did not receive medication for a prolonged amount of
time on multible (sic) occasions;” that the “defendant ordered a three (3) month prescription for motrin for the
plaintiff but what of all the time after the 3 months”; he relies upon multiple requests for treatment filed in 2018
through and including April of 2019. These events, and P.A.McCrystal’s unknown involvement in them, are simply
not before the Court in this lawsuit. The Amended Complaint, filed on August 29, 2017, contains a single, isolated,
Eighth Amendment claim. All other defendants and claims were dismissed from the case.
9 The Court also notes that even if the filing of a self-styled “international grievance” or a notice and
demand letter might constitute proper exhaustion, the notice and demand letters referenced by Ramos pertain to the
December 2017 incident. And as noted, the Amended Complaint was filed in August 2017. Therefore, the

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Correction for claims related to medical diagnoses and treatment, the use of a self-styled
international grievance or the submission of a notice and demand letter, does not constitute
proper exhaustion under Administrative Directive 8.9. See Jones, 549 U.S. at 218 (“it is the
prison's [procedural] requirements, and not the PLRA, that define the boundaries of proper
exhaustion”).
Finally, Ramos has asserted no evidence or claim that the administrative remedies for
medical treatment claims, as set forth in Administrative Directive 8.9, were unavailable to him.
Ramos did not comply with the requirement of Administrative Directive 8.9 that he
attempt to informally resolve his claim that on June 27, 2017 P.A. McCrystal failed to provide
him treatment for or thoroughly evaluate the potential cause of his shoulder pain. Nor is there
any dispute that he did not file a health review form. Accordingly, the defendant has met his
burden of demonstrating that there is no genuine issue of material fact that prior to filing this
action Ramos did not exhaust his available administrative remedies and that summary judgment
for the defendant is appropriate. Ramos’ motion for summary judgment, which is addressed to
the merits of the claim, is therefore not reached.
Conclusion
Defendant P.A. McCrystal’s Motion for Summary Judgment, [ECF No. 80], is
GRANTED and Ramos’s Motion for Summary Judgment, [ECF No. 58], is Terminated. The
Clerk is directed to enter judgment for the defendant and close this case.

exhaustion of administrative remedies was required to occur prior to August 2017.

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SO ORDERED at Bridgeport, Connecticut, this 25th day of August, 2019.
____/s/________________________
Kari A. Dooley
United States District Judge

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