Torrez v. Mulligan et al

Filing 81

ORDER denying 65 Motion for Summary Judgment; denying without prejudice 68 Motion for Summary Judgment. Signed by Judge Stefan R. Underhill on 8/24/18. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE ANTHONY TORREZ,
Plaintiff,
v.
WILLIAM MULLIGAN, et al.,
Defendants.

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No. 3:17-cv-677 (SRU)

RULING ON MOTIONS FOR SUMMARY JUDGMENT
On April 24, 2017, Jose Anthony Torrez, an inmate currently confined at Garner
Correctional Institution in Suffield, Connecticut, filed a civil rights complaint pro se
under 42 U.S.C. § 1983 against various employees of the Connecticut Department of
Correction (“DOC”) for violating his constitutional rights while he was confined at
Northern Correctional Institution in Somers, Connecticut. Compl., Doc. No. 1. On June
16, 2017, I issued my Initial Review Order permitting Torrez’s Eighth Amendment
claims to proceed against five defendants: Correction Officer Laprey, Lieutenant James
Delpesio, Captain Pafumi, Nurse Barbara Savoie, and Nurse Paul Balatka. Initial Review
Order, Doc. No. 14 at 4-12. The defendants answered the complaint on August 15, 2017.
Answer, Doc. No. 31.
On January 17, 2018, the defendants filed a Motion for Summary Judgment (Doc.
No. 65) on the ground that Torrez failed to exhaust his administrative remedies under the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), before seeking relief in
federal court. They argue that Torrez failed to fully comply with the DOC’s
Administrative Directives on the inmate grievance procedure. Defs.’ Mem. of Law in
Supp. of Mot. Summ. J. (“Defs.’ Mem.”), Doc. No. 65-1 at 3-7. Torrez thereafter filed

his own cross-motion for summary judgment, arguing that he has, in fact, exhausted his
administrative remedies, and the pleadings and supporting evidence show no genuine
issue of material fact with respect to his Eighth Amendment claims. Pl.’s Mot. Summ. J.,
Doc. No. 68. The defendants filed a written opposition to Torrez’s motion, disputing his
assertion that he exhausted his administrative remedies. Defs.’ Resp. to Pl.’s Mot.
Summ. J. (“Defs.’ Resp.”), Doc. No. 69. The defendants did not address Torrez’s
arguments with respect to the merits of his constitutional claims.
For the following reasons, the defendant’s Motion to Summary Judgment (Doc.
No. 65) is DENIED and Torrez’s Motion for Summary Judgment (Doc. No. 68) is
DENIED without prejudice to refiling at a later date.
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 is “genuine” if, based on that
fact, “a reasonable jury could return a verdict for the nonmoving party.” 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 alleged factual dispute will not
defeat summary judgment motion). The moving party may satisfy that burden “by
showing . . . 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
quotations omitted; citations omitted).

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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.; see also Atkinson v. Rinaldi, 2016 WL 7234087, at *1 (D. Conn. Dec. 14, 2016)
(nonmoving party must present evidence that would allow reasonable jury to find in his
favor in order to defeat motion for summary judgment); Pelletier v. Armstrong, 2007 WL
685181, at *7 (D. Conn. Mar. 2, 2007) (“nonmoving party must present significant
probative evidence to create genuine issue of material fact”) (quoting Soto v. Meachum,
1991 WL 218481, at *6 (D. Conn. Aug. 28, 1991)).
When deciding a motion for summary judgment, I may review the entire record,
including the pleadings, depositions, answers to interrogatories, admissions, affidavits,
and any other evidence on file to determine whether there is any genuine issue of material
fact. See Fed. R. Civ. P. 56(c); Pelletier, 2007 WL 685181, at *7. In reviewing the
record, I must “construe the evidence in the light most favorable to the non-moving party
and 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 any
evidence in the record from which a reasonable factual inference could be drawn in favor
of the non-moving party regarding the issue on which summary judgment is sought, then

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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).
Because Torrez filed his motion while proceeding pro se,1 I must read his
pleadings and factual allegations 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 that 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
As stated in my Initial Review Order, Torrez alleged the following facts in

support of his Eighth Amendment claims:
Torrez was transferred to Northern Correctional Institution as a pretrial
detainee. He was sentenced on May 27, 2016. Thus, at the time of the
incident underlying the complaint, Torrez was a sentenced inmate. See
www.ctinmateinfo.state.ct.us (last visited May 4, 2017). Torrez is
classified as seriously mentally ill, suffering from post-traumatic stress
disorder as a result of childhood trauma. He has been diagnosed with
several other mental disorders and takes medication.
On the afternoon of July 3, 2016, Torrez was waiting for correction[]
officers to escort him to make a social phone call. When Laprey was touring
the unit, Torrez reminded him about the scheduled social call. Laprey asked
whether Torres was going to call his boyfriend. Every time Laprey toured
the unit, he made sexually inappropriate remarks to Torrez. Although
Torrez asked him to stop, Laprey continued making inappropriate
comments.
Laprey and another officer came to apply restraints and escort Torrez to
make his call. When Torrez again asked Laprey to refrain from making
derogatory comments, Laprey stated that he would do what he wanted and
promised that Torrez would get f—ked up for trying to tell him what to do.

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Torrez has since been appointed counsel.

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At the conclusion of the call, Laprey came to the dayroom to escort Torrez
back to his cell. When Laprey made another comment, Torrez asked him
to stop commenting. Laprey told Torrez that he would be “slammed.” As
Laprey walked toward Torrez in an aggressive manner, Torrez fled. He
stopped when Laprey stated that he was joking and Laprey escorted him
back to his cell.
They stopped outside the cell door. Laprey reminded Torrez of his promise
to slam him and proceeded to repeatedly shove Torrez against the wall and
slam him to the floor. These actions damaged Torrez’s knee. Although
Torrez was not resisting, Laprey then called a “code 11” which requests
emergency assistance for prisoner noncompliance.
When additional staff responded, Torrez was lifted to his feet to be escorted
to the medical unit. Delpesio sprayed Torrez with an excessive amount of
chemical agent. After he was decontaminated in the medical unit, Torrez
was escorted to a cell and strip searched. The strip search caused Torrez to
re-experience sexual abuse he had endured as a child. After the search,
Torrez was dressed and [placed in] in-cell-restraints . . . The tether chain
on the in-cell restraints was too short, preventing Torrez from standing
erect. Nurse Balatka approved the restraints.
Torrez remained in the restraints for eighteen hours, from 9:00 p.m. on July
3, 2016, until 3:36 p.m. on July 4, 2016. No medical staff member corrected
these conditions during that time. Nurse Savoie checked the restraints at
7:55 a.m. on July 4, 2016. She did not order the restraints adjusted or
removed. Instead, she reported that the restraints were within the normal
range.
Initial Review Order, Doc. No. 14 at 2-4.
After reviewing his allegations, I concluded that Torrez stated plausible Eighth
Amendment claims for excessive force against Laprey for shoving him against the wall
and “slamming” him onto the floor and against Delpesio for deploying an excessive
amount of chemical agent on him. Id. at 4-5. I also concluded that Torrez stated a
plausible claim that Delpesio, Savoie, Balatka, and Pafumi failed to protect him from
harm under the Eighth Amendment because Delpesio, Savoie, and Balatka were present
during the altercation and Pafumi became aware that Torrez was improperly placed in incell restraints for eighteen hours. Id. at 5. Finally, I concluded that Torrez stated a claim

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that Balatka and Savoie subjected him to unlawful conditions of confinement under the
Eighth Amendment because they were aware of, and were responsible for, his placement
in in-cell restraints. Id. at 8.
III.

Analysis
A. Defendants’ Motion for Summary Judgment (Doc. No. 65)
The defendants claim that they are entitled to summary judgment because Torrez

failed to properly exhaust his administrative remedies under the PLRA. Specifically,
they argue that Torrez did not fully comply with the inmate grievance procedure because
his initial Inmate Request Form, which concerned the incident giving rise to his Eighth
Amendment claims, did not include a requested remedy, and he failed to submit an
amended Inmate Request Form as instructed. Defs.’ Mem. at 6-7. Torrez disputes that
assertion and argues that he properly exhausted his administrative remedies by filing his
Inmate Request Form and Level 1, 2, and 3 grievance appeals. Pl.’s Mot. for Summ. J. at
50-51. In their reply, the defendants counter that Torrez’s Inmate Request Form was
never properly filed and that DOC officials never received his appeals. Defs.’ Resp. at 12. Alternatively, they argue that the Level 2 and 3 appeals were filed late, and therefore,
did not comply with administrative procedures. Id. at 2.
Because there appear to be genuine issues of material fact with respect to whether
Torrez properly exhausted his administrative remedies, the defendants’ Motion for
Summary Judgment is DENIED.
The exhaustion provision under the PLRA provides in relevant part 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

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until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
In enacting section 1997e, Congress sought to afford prison officials time and
opportunity to address complaints internally and reduce the quantity, and improve the
quality, of prisoner suits. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). Exhaustion of
administrative remedies is mandatory for any prisoner challenging the conditions of his
confinement, including claims of excessive force against prison officials. Id. at 523.
In Woodford v. Ngo, 548 U.S. 81, 93 (2006), the United States Supreme Court
held that exhaustion under the PLRA requires “proper exhaustion,” meaning full
compliance with administrative procedures and deadlines. See also Ruggiero v. County
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,
including utilizing each step of the administrative appeal process. Id. (citing Jones v.
Bock, 549 U.S. 199, 218 (2007)); Jones v. Johnson, 2017 WL 1843692, at *4 (D. Conn.
May 8, 2017).
“An inmate may be excused from the exhaustion requirement only if
administrative remedies were not in fact available.” Shehan v. Erfe, 2017 WL 53691, at
*6 (D. Conn. Jan. 4, 2017) (citing Ross v. Blake, __ U.S. __, 135 S. Ct. 1850, 1858
(2016)). The Supreme Court has identified three circumstances in which an
administrative remedy cannot be used by an inmate to obtain relief: (1) “the
administrative remedy may operate as a ‘dead end,’ such as where the office to which
inmates are directed to submit all grievances disclaims the ability to consider them . . .

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[(2)] the procedures may be so confusing that no ordinary prisoner could be expected to
‘discern or navigate’ the requirements . . . [a]nd [(3)] prison officials may ‘thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.’” Id. (quoting Ross, 135 S. Ct. at 1859-60).
The administrative remedy process established by the DOC is set forth in DOC
Administrative Directive 9.6. Shehan, 2017 WL 53691, at *6. If the inmate cannot
resolve the issue verbally with the prison official, he must first file an Inmate Request
Form (Form No. CN 9601). Id.; Jones, 2017 WL 1843692, at *4; DOC Administrative
Directives, Defs.’ Ex. A (Doc. No. 65-2) at 6. “The inmate must clearly state the
problem and the action requested to remedy the issue.” DOC Administrative Directives,
Defs.’ Ex. A at 6. If the inmate is not satisfied with the official’s response, or if the
official fails to respond with fifteen days, he must file a grievance or “Level 1 Review”
(Form No. CN 9602) and attach his Inmate Request Form showing that he had attempted
to resolve the issue with the official informally. Shehan, 2017 WL 53691, at *6; Jones,
2017 WL 1843692, at *4. The Level 1 Review must be submitted within thirty days “of
the occurrence or discovery of the cause of the grievance,” and satisfy the same criteria as
Inmate Request Forms. See DOC Administrative Directives, Defs.’ Ex. A at 7. If the
inmate is not satisfied with the response to his Level 1 Review, he may file a “Level 2
Review” within five days after receipt of the response. Id. at 8. Alternatively, if the Unit
Administrator does not respond to the Level 1 Review within thirty days after receipt, the
inmate may submit a Level 2 Review upon expiration of the thirty-day deadline. Id. The
Level 2 Review constitutes the final level of appeal for all inmate grievances except for
those that (a) challenge department policy, (b) challenge the integrity of the grievance

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procedure, or (c) exceed the thirty-day limit for a Level 2 Review response. Id.; Jones,
2017 WL 1843692, at *4.
The record shows that Torrez initially filed an Inmate Request Form concerning
Laprey’s actions on July 14, 2016. Inmate Request Form, Defs.’ Ex. B (Doc. No. 65-3)
at 13. A corrections official responded to the request, instructing Torrez to contact the
Department of Public Safety if he wished to file charges against Laprey. Id. On July 15,
2016, Torrez filed an inmate grievance (Level 1 Review). Grievance, Defs.’ Ex. B at 12.
That grievance was rejected and returned to Torrez because, according to prison officials,
it did not include a requested remedy, per administrative policy. Grievance Returned
Without Disposition, Defs.’ Ex. B at 10; Pl.’s Ex. 3 at 30. The written response notified
Torrez that he could resubmit his grievance after he corrects the deficiency. Id.
According to the defendants, Torrez never resubmitted his grievance, and they
submitted affidavits from two DOC officials asserting that they never received any
follow-up grievances or appeals from Torrez. Defs.’ Mem. at 7; Aff. of Christopher
Johnson, Defs.’ Ex. B at ¶ 6; Second Aff. of Christopher Johnson, Defs.’ Resp. Ex. 1
(ECF No. 69-1) at ¶ 5; Aff. of Selena Rious, Defs.’ Resp. Ex. 2 (ECF No. 69-2) at ¶ 7.
Torrez, however, attached to his summary judgment motion what he claims is his
corrected and resubmitted grievance, which states a requested remedy, and is dated
September 19, 2016. Resubmitted Grievance, Pl.’s Mot. for Summ. J. Ex. 3 at 32. He
also attached copies of Level 2 and 3 appeals, which are dated November 1, 2016 and
December 15, 2016, respectively. Level 2/3 Inmate Grievance Appeals, Pl.’s Mot. for
Summ. J. Ex. 3 at 33-34. The defendants claim, however, that DOC officials never

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received any appeals from Torrez. Defs.’ Resp. at 1-2; Second Aff. of Christopher
Johnson, Defs.’ Resp. Ex. 1 at ¶ 5; Aff. of Selena Rious, Defs.’ Resp. Ex. 2 at ¶ 7.
Based on the foregoing, I conclude that there are genuine issues of material fact
with respect to whether Torrez properly exhausted all of his administrative remedies.
Torrez has provided evidence that he resubmitted his inmate grievance, which corrected
the deficiency of his initial grievance, and that he followed his grievance with Level 2
and 3 appeals. Although the defendants have provided testimony from DOC officials that
DOC staff never received Torrez’s corrected grievance or his appeals, a decision in their
favor would necessarily be based on a credibility determination, which I cannot make
when ruling on a summary judgment motion. See Hayes v. N.Y. City Dep’t of Corr., 84
F.3d 614, 619 (2d Cir. 1996) (“In applying th[e] summary judgment standard, the court
should not weigh evidence or assess the credibility of witnesses”). Similarly, their
argument that the corrected grievance and subsequent appeals did not comply with the
deadlines set forth by Administrative Directive 9.6 does not entitle them to summary
judgment. The fact that the paperwork was, in their view, filed late does not necessarily
require a finding that DOC officials would have rejected Torrez’s claims as untimely.
Without any response from DOC officials on the corrective grievance and/or appeals
forms themselves, I conclude that there are genuine issues of material fact with respect to
whether Torrez timely filed his corrective grievance and subsequent appeals.
Construing the evidence in the light most favorable to Torrez, the non-moving
party, I conclude that a reasonable juror could find that he properly exhausted his
administrative remedies based on the evidence he presented. Therefore, the defendants’
Motion for Summary Judgment (Doc. No. 65) is DENIED.

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B. Torrez’ Motion for Summary Judgment (Doc. No. 68)
Torrez argues in his Motion for Summary Judgment that there are no genuine
issues of material fact with respect to his Eighth Amendment claims. Pl.’s Mot. for
Summ. J., Doc. No. 68 at 46-50. Although the defendants have filed a response to
Torrez’s motion, they limited their response to the issue of exhaustion and did not
address the merits of Torrez’s Eighth Amendment claims.
As previously mentioned, there appear to be genuine issues of material fact with
respect to whether Torrez exhausted all of his administrative remedies. Because Torrez
cannot prevail on his Eighth Amendment claim if he failed to meet the exhaustion
requirement, it is best to address the validity of his Eighth Amendment claims at a later
date, after a determination has been made regarding the exhaustion requirement.
Accordingly, Torrez’s Motion for Summary Judgment (Doc. No. 68) is DENIED
without prejudice to refiling at a later date.
ORDERS
The defendant’s Motion for Summary Judgment (Doc. No. 65) is DENIED.
Torrez’s Motion for Summary Judgment (Doc. No. 68) is DENIED without prejudice.
It is so ordered.
Dated at Bridgeport, Connecticut this 24th day of August 2018.

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

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