Jordan v. LaFrance
ORDER. For the reasons set forth in the attached, the Defendant's 19 motion for summary judgment is GRANTED. The Clerk is directed to enter judgment in favor of the defendant and close this case.Signed by Judge Michael P. Shea on 10/9/2019. (Hausmann, Amy)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CASE NO. 3:18-cv-1541 (MPS)
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Lester Jordan, commenced this civil rights action asserting a claim for
deliberate indifference to a serious medical need while he was incarcerated. He has since
discharged from custody. The named defendant, Nurse Barbara LaFrance, moves for summary
judgment on the ground that the plaintiff failed to exhaust his administrative remedies before
commencing this action. For the following reasons, the defendant’s motion is granted.
Standard of Review
A motion for summary judgment may be granted only where there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of law. Rule
56(a), Fed. R. Civ. P.; see also Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107,
113-14 (2d Cir. 2017). “A genuine issue of material fact exists if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Nick’s Garage, 875 F.3d at
113-14 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Which facts are
material is determined by the substantive law. Anderson, 477 U.S. at 248. “The same standard
applies whether summary judgment is granted on the merits or on an affirmative defense ….”
Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).
The moving party bears the initial burden of informing the court of the basis for its
motion and identifying the admissible evidence it believes demonstrates the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving
party meets this burden, the nonmoving party must set forth specific facts showing that there is a
genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “‘rely on
conclusory allegations or unsubstantiated speculation’ but ‘must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.’” Robinson v.
Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation omitted). To defeat a motion
for summary judgment, the nonmoving party must present such evidence as would allow a jury
to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
Although the court is required to read a self-represented “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), “unsupported allegations do not create a material issue of fact” and do not
overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ.,
224 F.3d 33, 41 (2d Cir. 2000).
The facts are taken from the defendant’s Local Rule 56(a)1 Statement and attached exhibits.
Local Rule 56(a)2 requires the party opposing summary judgment to submit a Local Rule 56(a)2
Statement which contains separately numbered paragraphs corresponding to the Local Rule 56(a)1
Statement and indicates whether the opposing party admits or denies the facts set forth by the moving
party. Each admission or denial must include a citation to an affidavit or other admissible evidence. In
addition, the opposing party must submit a list of disputed factual issues. D. Conn. L. Civ. R. 56(a)2 and
56(a)3. Although the defendant informed the plaintiff of this requirement, ECF No. 29-8, the plaintiff has
neither submitted any opposition papers nor sought an extension of time within which to do so.
Accordingly, the defendant’s facts are deemed admitted. See D. Conn. L. Civ. R. 56(a)1 (“All material
facts set forth in said statement and supported by the evidence will be deemed admitted unless
controverted by the statement required to be filed and served by the opposing party in accordance with
Rule 56(a)2.”). As the Complaint is verified, the Court may consider the allegations in reviewing the
motion for summary judgment.
The plaintiff was admitted to the custody of the Department of Correction at
MacDougall-Walker Correctional Institution on April 27, 2018, as a pretrial detainee. ECF No.
19-7 ¶ 1. On July 18, 2018, he began serving a six-month sentence for violation of probation.
Id. ¶ 2. The plaintiff completed his sentence and was discharged from custody on October 23,
2018. Id. ¶ 3. He has not been re-incarcerated. Id. ¶ 4.
Inmates at MacDougall-Walker Correctional Institution are housed in the MacDougall
building or the Walker building. Id., ¶ 5. Medical staff are assigned to both buildings and
medical services are provided in both buildings. Id., ¶ 6. Inmates exhaust their administrative
remedies on matters relating to health care by utilizing the Health Services Review (“HSR”), as
set forth in Department of Correction Administrative Directive 8.9. Id., ¶ 7. The review is
commenced when an inmate files a request on form CN 9602. Id., ¶ 8.
When an inmate at MacDougall-Walker Correctional Institution files an HSR on form
CN 9602, a designated HSR Coordinator at that facility reviews the request and logs it into the
HSR electronic records. The HSR Coordinator then either responds to the request or forwards
the request to the appropriate person for a response. Id., ¶ 9. The HSR document is filed in the
HSR archive located in the medical unit. Id., ¶ 10. The routine and regular practice of the HSR
Coordinators is to enter HSR requests into the electronic log and file the hard copy in the HSR
archive. Id., ¶ 11. The electronic HSR log lists all HSR requests filed in the MacDougall and
Walker buildings. Id., ¶ 12.
Nurses Walker and Ostheimer are HSR Coordinators. Id. ¶¶ 13-14. They both have
access to the electronic HSR log and the historical archive of HSR requests filed by inmates at
MacDougall-Walker Correctional Institution. Id., ¶ 15. Nurse Ostheimer conducted a manual
search at the Walker building for any HSR request filed by the plaintiff between April 2018 and
October 2018. Id., ¶ 16. Nurse Walker searched the electronic log for any HSR request filed by
the plaintiff between April 2018 and October 2018. Id., ¶ 17. Neither located evidence that the
plaintiff filed an HSR request while he was confined at the MacDougall-Walker Correctional
Institution. Id., ¶ 18.
The defendant moves for summary judgment the ground that the plaintiff failed to
exhaust his administrative remedies before commencing this action.
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).
The plaintiff was incarcerated in the Walker building at MacDougall-Walker Correctional
Institution when he filed this lawsuit. See ECF No. 1 ¶ 6. Because the plaintiff was incarcerated
at the time of filing, the exhaustion requirement applies to him. See Greig v. Goord, 169 F.3d
165, 167 (2d Cir. 1999) (distinguishing former inmates who were not incarcerated when they
filed a lawsuit and holding that the exhaustion requirement does not apply to them); Baez v.
Parks, No. 02 Civ. 5821, 2004 WL 1052779, at *5 (S.D.N.Y. May 11, 2004) (“[T]he PLRA’s
strict exhaustion requirement does indeed apply in actions brought by pretrial detainees.”).
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). Furthermore, prisoners must comply with all procedural rules regarding
the grievance process prior to commencing an action in federal court. See Woodford v. Ngo, 548
U.S. 81, 90-91, 93 (2006) (proper exhaustion “means using all steps that the agency holds out ...
(so that the agency addresses the issues on the merits) ... [and] demands compliance with agency
deadlines and other critical procedural rules”). Special circumstances will not relieve an inmate
of his or her obligation to adhere to the exhaustion requirement. An inmate’s failure to exhaust
administrative remedies is only excusable if the remedies are in fact unavailable. See Ross v.
Blake, 136 S. Ct. 1850, 1858 (2016).
Health Services Reviews are governed by Administrative Directive 8.9, which is attached
to the defendant’s motion as Exhibit B or may be found at portal.ct.gov/DOC. There are two
types of Health Services Reviews. The first seeks review of an administrative issue, i.e., a
particular practice, procedure, administrative provision or policy, or it may allege improper
conduct by a health services provider. The second seeks review of a diagnosis or treatment,
including a decision to provide no treatment. See id. at 8.9(9).
Prior to filing an HSR, the inmate must seek an informal resolution of his claim by
discussing the claim, face to face, with the appropriate staff member or by submitting a written
request to a supervisor. Staff shall respond to the inmate within fifteen days of the receipt of a
written request. See id. at 8.9(10).
An inmate filing the first type of HSR must designate the “All Other Health Care Issues”
box on the form and provide a concise statement of what he believes to be wrong and how he has
been affected. Id. at 8.9(12). The HSR Coordinator evaluates, investigates, and decides each
review within thirty days. Each review must be rejected, denied, compromised, upheld or
withdrawn. See id. at 8.9(12)(A). If the inmate is dissatisfied with the response, he may appeal
the decision within ten business days. See id. at 8.9(12)(B). HSR appeals are decided by the
designated facility health services director or his designee within fifteen business days after
receiving the appeal. If the issue is compliance with existing standards, this concludes the appeal
process. See id. at 8.9(12)(C).
An inmate filing the second type of HSR must designate the “Diagnosis/Treatment” box
on the form and concisely explain the reason for his dissatisfaction. See id. at 8.9(11). Upon
receipt of the form, the HSR Coordinator schedules an HSR Appointment with an appropriate
medical professional as soon as possible. If the medical professional determines that the
treatment was appropriate, the exhaustion process is concluded. See id. at 8.9(11)(A).
Under either type, however, the inmate must attempt informal resolution and file an HSR
form. The defendants have presented evidence that an exhaustive search has revealed no
electronic HSR record or physical HSR form. The plaintiff has presented no evidence in
opposition to the motion for summary judgment showing that he exhausted his administrative
remedies on this claim. In the verified complaint, which may be considered as an affidavit, the
plaintiff states that he exhausted his administrative remedies. See Colon v. Coughlin, 58 F.3d
865, 872 (2d Cir. 1995) (“verified complaint is to be treated as an affidavit for summary
judgment purposes”). A conclusory statement in an affidavit, however, is insufficient to create
an issue of fact in opposition to a properly supported motion for summary judgment. See
Robinson, 781 F.3d at 34 (party opposing summary judgment cannot rely on conclusory
allegations; he must present specific evidence showing the existence of a genuine factual
dispute); Zigmund v. Foster, 106 F. Supp. 2d 352, 256 (D. Conn. 2000) (verification by affidavit
of conclusory allegations is insufficient to oppose motion for summary judgment). The plaintiff
would have to present some evidence, either physical evidence or specific factual statements in
his affidavit, showing that he exhausted his administrative remedies. As he has not done so, the
defendant’s motion for summary judgment is granted.
The defendant’s motion for summary judgment [ECF No. 19] is GRANTED. The Clerk
is directed to enter judgment in favor of the defendant and close this case.
SO ORDERED this 9th day of October 2019 at Hartford, Connecticut.
Michael P. Shea
United States District Judge
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