Gaston v. Doe et al

Filing 60

ORDER: The Defendants' Motion for Summary Judgment (ECF No. 58 ) is hereby DENIED for the reasons set forth in the attached document. Signed by Judge Alvin W. Thompson on 1/7/2021. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MARCUS GASTON,
Plaintiff,
v.
JOHN DOE, et al.,
Defendants.

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Civil No. 3:19-cv-3(AWT)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF No. 58]
The plaintiff, Marcus Gaston, commenced this civil rights
action pro se asserting a claim that he was sexually assaulted
by Nurse Olukayode Atoyebi and that the remaining defendants,
Lieutenant Ian McMahon, Officer Robert Calo, Officer Russell
Deveau, Officer Moises Rodado, and Officer Tim Stellmach, did
not intercede.

The defendants have filed a motion for summary

judgment on the ground that the plaintiff failed to exhaust his
administrative remedies before commencing this action.

For the

following reasons, the defendants’ motion is being denied.
I.

LEGAL STANDARD
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.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 323

Once the moving party meets this burden, the nonmoving

party must set forth specific facts showing that there is a
genuine issue for trial.
Cir. 2009).

Wright v. Goord, 554 F.3d 255, 266 (2d

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) (quotation marks and 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,
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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).
II.

FACTS 1
On October 27, 2016, the plaintiff was confined in four-

point restraints at Cheshire Correctional Institution.
Local Rule 56(a)1 Statement, ECF No. 58-2 ¶ 8.

Defs.’

He alleges that,

on that date, defendant Atoyebi sexually groped him while the

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The facts are taken from the Defendants’ Local Rule 56(a)1
Statement and supporting exhibits submitted by both parties. 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
indicating 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.
The defendants informed the plaintiff of this requirement. See
Notice to Self-Represented Litigant Concerning Motion for Summary
Judgment, Doc. No. 58-3. Rather than complying with this requirement,
the plaintiff submitted only an affidavit in opposition to the motion
for summary judgment. As the plaintiff has not filed a proper Local
Rule 56(a)2 Statement, the defendants’ facts are deemed admitted for
purposes of this motion. 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.”).

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remaining defendants laughed and did nothing.

Id. ¶ 7.

The Prison Litigation Reform Act requires inmates to
exhaust their administrative remedies before commencing an
action in federal court.

Id. ¶ 9.

Connecticut inmates exhaust

their administrative remedies by filing grievances in accordance
with the procedures set forth in Administrative Directive 9.6.
Id. ¶¶ 10-16.
At Cheshire Correctional Institution, inmates file their
administrative remedies by depositing them in a clearly marked
box that is accessible to all inmates.

Id. ¶ 17. The grievances

are collected each day and logged into the Grievance Log upon
receipt.

Id. ¶ 18.

Grievance records show that the plaintiff

filed five Level 1 grievances and no grievance appeals while he
was confined at Cheshire Correctional Institution.

Id. ¶¶ 20,

27.
Grievance records show that the plaintiff filed one Level 1
grievance relating to the October 27, 2016 incident.

Id. ¶ 23.

The grievance was denied on January 10, 2017 and grievance
records show no Level 2 appeal.

Id.

III. DISCUSSION
The defendants move for summary judgment on one ground,
failure to exhaust administrative remedies.

The Prisoner

Litigation Reform Act requires prisoners to exhaust
administrative remedies before filing a federal lawsuit relating
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to prison conditions.

42 U.S.C. § 1997e(a) (“No action shall be

brought with respect to prison conditions under section 19983 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 administrative remedies permits prison officials
to address complaints before being subject to suit and reduces
litigation if the complaint can be resolved satisfactorily
within the administrative process.

See Jones v. Bock, 549 U.S.

199, 219 (2007).
Exhaustion of all available administrative remedies must
occur regardless of whether the administrative procedures
provide the relief that the inmate seeks.
532 U.S. 731, 741 (2001).

See Booth v. Churner,

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
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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, ___

U.S. ___, 136 S. Ct. 1850, 1858 (2016).
Exhaustion of administrative remedies is an affirmative
defense.

Thus, the defendants bear the burden of proof. See

Jones, 549 U.S. at 216.

Once the defendants establish that

administrative remedies were not exhausted before the inmate
commenced the action, the plaintiff must establish that the
administrative remedy procedures were not available to him under
Ross.

See Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y.

2013) (“once a defendant has adduced reliable evidence that
administrative remedies were available to the plaintiff and that
the plaintiff nevertheless failed to exhaust those
administrative remedies, the plaintiff must then ‘counter’ the
defendant’s assertion by showing exhaustion [or] unavailability
. . . .”).
The general inmate grievance procedure is set forth in
Administrative Directive 9.6 and can be found at
portal.ct.gov/DOC and Defs.’ Mem. Ex. B. (ECF No. 58-5).

An

inmate must first attempt to resolve the matter informally.
may attempt to verbally resolve the issue with an appropriate

He

staff member or supervisor.

Dir. 9.6(6)(A).

If attempts to

resolve the matter orally are not effective, the inmate must
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make a written attempt using a specified form and send the form
to the appropriate staff member or supervisor.

Id.

If an

inmate does not receive a response to the written request within
fifteen business days or the inmate is not satisfied with the
response to his request, he may file a Level 1 grievance.

Dir.

9.6(6)(C).
The Level 1 grievance must be filed within thirty calendar
days from the date of the occurrence or discovery of the cause
of the grievance and should include a copy of the response to
the written request to resolve the matter informally or explain
why the response is not attached.

Id.

The Unit Administrator

shall respond in writing to the Level 1 grievance within thirty
business days of his or her receipt of the grievance.
9.6(6)(I).

Dir.

The Unit Administrator may extend the response time

by up to fifteen business days upon notice to the inmate on the
prescribed form.

Dir. 9.6(6)(J).

The inmate may appeal the disposition of the Level 1
grievance by the Unit Administrator or the Unit Administrator’s
failure to dispose of the grievance in a timely manner to Level
2.

Dir. 9.6(6)(G),(I)&(K).

The Level 2 appeal of a disposition

of a Level 1 grievance must be filed within five calendar days
from the inmate’s receipt of the decision on the Level 1
grievance.

Dir. 9.6(6)(K).

The Level 2 appeal of the Unit

Administrator’s failure to dispose of the Level 1 grievance in a
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timely manner must be filed within sixty-five days from the date
the Level 1 grievance was filed by the inmate; it is decided by
the District Administrator.

Dir. 9.6(6)(M).

Level 3 appeals are restricted to challenges to department
policy, the integrity of the grievance procedure, or Level 2
appeals to which there has been an untimely response by the
District Administrator.

Dir. 9.6(6)(L).

The plaintiff filed his Level 1 grievance on November 10,
2016.

The grievance was denied on January 10, 2017.

The

reviewer noted that a PREA investigation was conducted and the
plaintiff’s allegation that Lieutenant McMahon acted
unprofessionally could not be substantiated.

Defs.’ Mem. Ex.

58-7 at 3.
The defendants have submitted the declaration of the
grievance coordinator stating that the plaintiff did not appeal
the denial and a copy of the grievance log showing no Level 2
appeal.

In response, the plaintiff has submitted copies of

Level 1, 2, and 3 grievances he states he filed to exhaust this
claim.

Pl.’s Aff. Ex. A, ECF No. 59-1.

The Level 2 appeal, dated December 26, 2016, states that the
plaintiff did not receive a response within thirty days.
Level 1 grievance was filed on November 10, 2016.
at 4.

The

ECF No. 59-1

The response was due within thirty business days, or by

December 22, 2016.

The defendants do not state that an
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extension of time was requested.

Thus, the response, dated

forty-three business days after the grievance was filed, was not
provided in a timely manner.

The plaintiff’s Level 2 grievance

was an appropriate response.

The Level 3 appeal is dated

February 8, 2017 and states that the plaintiff did not receive a
response to the Level 2 appeal.

ECF No. 59-1 at 5.

He also

references the Level 1 response which he received after he filed
the Level 2 appeal.
The parties disagree about whether the plaintiff actually
filed the Level 2 and 3 grievances.
fact precluding summary judgment.

Thus, there is an issue of
As the court cannot make

credibility determinations on a motion for summary judgment, it
cannot determine whether the plaintiff exhausted his
administrative remedies before commencing this action.
Further, the directive does not address the situation where
a Level 1 response is served after the deadline and after the
inmate has filed a Level 2 appeal.

Thus, if the plaintiff’s

version of events is believed, it is not clear that he was
required to appeal the Level 1 response.
IV.

CONCLUSION
The defendants’ motion for summary judgment [ECF No. 58] is

hereby DENIED.
It is so ordered.

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Signed this 7th day of January 2021 at Hartford,
Connecticut.
___________/s/AWT____________
Alvin W. Thompson
United States District Judge

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