Olivencia v. Pun et al

Filing 55

ORDER granting in part and denying in part ECF No. 32 , Motion for Summary Judgment. See attached for details. Signed by Judge Omar A. Williams on 9/19/22. (Wagner, Rebecca)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FRANCISCO OLIVENCIA,
Plaintiff,
v.
MRS. PUN et al,
Defendants.

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3:21-cv-739 (OAW)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the court upon Defendants’ Motion for Summary
Judgment and memorandum in support thereof (together, “Motion”). See ECF Nos. 32
and 32-1. The court has reviewed the Motion, Defendants’ Statement of Facts
(“Defendants’ SOF”), see ECF No. 32-2,1 Plaintiff’s opposition briefs, see ECF Nos. 40
and 45, Plaintiff’s declaration and the declaration of Marcus Williams (a witness), see ECF
Nos. 38 and 39, Plaintiff’s responses to the Defendants’ SOF, see ECF No. 41,
Defendants’ Reply in support of the Motion, see ECF No. 44, all other supporting exhibits,
and the record in this matter and is thoroughly advised in the premises.
After careful review, the Motion for Summary Judgment is DENIED in part and is
GRANTED in part.

Local Rule 56(a)1 provides: “Each material fact set forth in the Local Rule 56(a)1 Statement and
supported by the evidence will be deemed admitted (solely for purposes of the motion) unless such fact is
controverted by the Local Rule 56(a)2 Statement required to be filed and served by the opposing party in
accordance with this Local Rule, or the Court sustains an objection to the fact.” Defendants informed
Plaintiff of this requirement in their Notice to Pro Se Litigant. See ECF No. 32-7. Thus, where Plaintiff
has not filed a response to Defendants’ Local Rule 56(a)1 Statement in compliance with Local Rule
56(a)2, the facts asserted in Defendants’ SOF may be deemed admitted where supported by the
evidence. See Small v. Clements, No. 3:18-CV-1731 (KAD), 2019 WL 5727388, at *1, n.1 (D. Conn.
Nov. 5, 2019); Wu v. Nat'l Geospatial Intel. Agency, No. 3:14CV1603 (DJS), 2017 WL 923906, at *2 (D.
Conn. Mar. 8, 2017) (noting in the context of a pro se plaintiff’s failure to submit a Local Rule 56(a)2
statement, that “pro se parties are not excused from abiding by the Federal Rules of Civil Procedure.”)
(quoting Collins v. Experian Credit Reporting Service, No. 3:04CV1905 (MRK), 2006 U.S. Dist. LEXIS
72020, at *3, 2006 WL 2850411 (D. Conn. Oct. 3, 2006)).
1

I.

BACKGROUND
During the time relevant to this action, Plaintiff was a sentenced inmate housed

at Bridgeport Correctional Center within the Connecticut Department of Correction
(“DOC”). ECF No. 41 at ¶ 1.
A.

December 1, 2020, Incident

On December 1, 2020, Plaintiff was assaulted by another inmate. Id. at ¶ 2;
ECF No. 1 at ¶¶ 4-5; ECF No. 38 at ¶ 3. Defendant Pun was located in the officer’s
station approximately twelve feet from where the assault occurred. ECF No. 41 at ¶ 3.
She immediately alerted correctional staff to the assault via radio.2 Id.
According to Plaintiff, Defendant Pun watched the assault from the officer’s
station. ECF No. 1 at ¶¶ 5–6. Plaintiff alleges that an unknown officer (later identified
as Defendant Cordero) “rushed” at Plaintiff, “picked him up off of his feet and violently
slammed [him] onto the concrete floor, shattering/breaking his knee [and] causing grave
and excruciating pain and suffering.” Id. at ¶¶ 7–10; see also ECF No. 38 at ¶ 3 (“I was
… violently assaulted from behind by a prison guard who maliciously lifted me up from
the ground and violently and sadistically slammed me upon the concrete ground.”), ECF
No. at 39 ¶ 3.
Defendants have submitted prison surveillance camera footage taken at the time
of the incident. See ECF No. 32-5 (“Corridor Video”); ECF No. 32-6 (“Dayroom

Plaintiff’s denial of this fact is not supported by specific evidence in compliance with Rule 56(a)3. No
other evidence in the record suggests a dispute as to this fact.
2

2

Video”); ECF No. 33 (Notice of Manual Filing).3 The Corridor Video shows an inmate
lunge and attack another inmate (presumably Plaintiff) as he proceeded down the
corridor. Corridor Video at 55:03-55:08. The two inmates disappear from view.
Corridor Video at 55:08. The Dayroom Video shows the inmates fighting and falling
onto the floor with numerous correctional staff following and surrounding them.
Dayroom Video at ¶ 55:08–55:14; ECF No. 32-2 at ¶¶ 4–6. The Dayroom Video (which
depicts the incident as seen through a window in the dayroom) permits a view of mostly
the upper torso of the correctional officers; at times, this view of the officers is almost
wholly obscured by inmates in the dayroom watching the action through the window.
Id. Thus, the Dayroom Video does not afford a clear view of what actions the
correctional officers took after the two inmates fell on the floor. Dayroom Video at
55:15–56:15.
From the Corridor Video footage, one inmate (presumably Plaintiff) can be seen
being pulled by his arms by correctional staff. Corridor Video at 55:12–55:15. This
inmate later stands with his face toward the corridor wall surrounded by correctional
staff (at times, the inmate is not visible, and the video does not clearly depict the
correctional officers’ conduct while they surround the inmate). Id. at 55:15–55:18.
Correctional staff appear, however, to be handcuffing the inmate, who is not showing
any resistance. Id. at 55:18–55:48 The inmate appears to be standing on one foot

3

Where the parties present conflicting versions of an incident and video evidence of the incident has
been submitted on a motion for summary judgment, the court must view the facts “in the light depicted” by
the video of the incident. See Scott v. Harris, 550 U.S. 372, 380–81 (2007).

3

while he is being handcuffed. Id. Correctional staff turn the inmate (who is handcuffed
by this time) to walk down the corridor with his back to the camera, but it is not clear
whether the inmate can walk on his own or is receiving assistance from the officers. Id.
at 55:48-55:58. Both videos show numerous correctional officers, but none is
identifiable as Defendant Cordero. Neither video has sound and neither video features
any view of the officer’s station.
Defendant Cordero avers that he did not come into physical contact with Plaintiff,
use any force against him, or observe any other correctional officer pick Plaintiff up and
slam him on the floor. ECF No. 32-4 at ¶¶ 8–9. Cordero further avers that he assisted
other correctional staff in securing the inmate who ambushed Plaintiff, and later
escorted the other inmate involved in the altercation to the restrictive housing unit at
Bridgeport Correctional Center. Id. at ¶¶ 10–12; see also id. at p. 7 (Attachment A:
Incident Report).
B.

Exhaustion of Administrative Remedies4

Administrative Remedies Under Administrative Directive 9.65
Administrative Directive 9.6 states that the DOC shall “provide a means for

4

Plaintiff has attached exhibits to his complaint and to his opposition to the motion for summary judgment
that support his factual allegations with respect to exhaustion. See ECF No. 1 at 19–29; ECF No. 40 at
15–28. Therefore, the court properly may consider these allegations in this discussion. See Patterson
v. Cty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (holding that a verified pleading that contains
“allegations on the basis of the plaintiff's personal knowledge, and not merely on information and belief,
has the effect of an affidavit and may be relied on to oppose summary judgment.”); Jordan v. LaFrance,
No. 3:18-CV-1541 (MPS), 2019 WL 5064692, at *1 n. 1 (D. Conn. Oct. 9, 2019) (noting that courts may
review the allegations of a verified complaint in consideration of a motion for summary judgment).
5 This discussion will reference the directive Defendants have submitted as an exhibit, which is the
directive as it was at the time Plaintiff sought redress for the alleged violations. See ECF No. 32-3. Since
that time, the DOC has issued an updated Directive 9.6 effective April 30, 2021, which publicly is
available on the DOC’s website at https://portal.ct.gov/DOC/AD/AD-Chapter-9 (last visited Sept. 15,
2022).
4

an inmate to seek formal review of an issue relating to any aspect of an inmate's
confinement that is subject to the Commissioner's authority.” A.D. 9.6(1).
Administrative Directive 9.6(6) provides the grievance procedure for “any issue relating
to policy and procedure, and compliance with established provisions.” A.D. 9.6(1). It
requires an aggrieved inmate to first seek informal resolution prior to filing a grievance.
A.D. 9.6(6)(A). In the event that “the verbal option does not resolve the issue,” it states
that “the inmate shall submit a written request via CN 9601, Inmate Request Form.” Id.
Administrative Directive 9.6(6)(C) specifically states that the inmate must include a copy
of the Inmate Request Form (form CN 9601) with the grievance (form CN 9602) or
explain its absence. A.D. 9.6(6)(C). The grievance must be filed within thirty calendar
days of the date of the events giving rise to the grievance and should include a copy of
the response to the Inmate Request Form or explain why the response is not attached.
Id.
The Unit Administrator then performs a Level 1 review of the grievance and
responds to it in writing within thirty business days of receiving it. See A.D. 9.6(6)(I). A
grievance may be rejected, denied, compromised, upheld, or withdrawn. A.D.
9.6(6)(D). When a grievance is returned without disposition, that means the “grievance
has not been properly filed and may be re-filed after the inmate has corrected the error.”
A.D. 9.6(6)(E). A grievance may be returned to an inmate without disposition if: (1) the
inmate has not first attempted informal resolution; (2) the inmate fails to either attach the
Inmate Request Form and the response thereto or adequately explain why the form is
not attached; or (3) the inmate fails to adhere to the various requirements under Section

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(5)(E)(1)–(5) of the directive.

A.D. 9.6(6)(E)(1)–(3). When a grievance is returned

without disposition, an inmate will receive a form CN 9606 (a “Grievance Returned
Without Disposition” form). See A.D. 9.6(6)(E). A grievance returned without
disposition due to a failure to comply with the procedural requirements of Administrative
Directive 9.6 may not be appealed. See A.D. 9.6(6)(G). The inmate may otherwise
appeal the Unit Administrator’s disposition of the grievance, or the Unit Administrator’s
failure to dispose of the grievance in a timely manner. A.D. 9.6(6)(G), (I) & (K).
The appeal receives a Level 2 review. A.D. 9.6(6)(K). An appeal for Level 2
review must be filed within five calendar days of the inmate’s receipt of the result of the
Level 1 review. See id. If the appeal is based upon the Unit Administrator’s failure to
complete the Level 1 review in a timely manner, the appeal must be filed within 65 days
from the date the CN 9602 form was filed by the inmate. See A.D. 9.6(6)(M). Level 2
reviews are performed by the appropriate District Administrator. A.D. 9.6(6)(K)(1).
The District Administrator’s Level 2 response must be completed within thirty business
days of receipt of the appeal and must include a statement indicating the reasoning
behind the Level 2 determination. A.D. 9.6(6)(K).
A Level 2 determination may also be appealed for Level 3 review. A.D.
9.6(6)(L). Level 3 appeals are restricted to challenges to department policy, the
integrity of the grievance procedure, and appeals for Level 2 review to which the District
Administrator has not issued a timely response. Id. An appeal for Level 3 review must
be filed within five calendar days from the inmate’s receipt of the determination of the
Level 2 review. Id. An appeal of the District Administrator’s failure to perform a Level 2

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review in a timely manner must be filed within 35 days of the filing of the appeal for
Level 2 review. A.D. 9.6(6)(M). A Level 3 Appeal is reviewed by the Commissioner or
their designee. A.D. 9.6(6)(L).
Plaintiff’s Grievance Filed Under Directive 9.6
Plaintiff filed a grievance dated December 26, 2020, complaining about injury to
his right kneecap resulting from the use of excessive force in connection with the
incident on December 1, 2020. See ECF No. 1 at ¶ 19 and pp. 19–21, 25–30; ECF No.
40 at 15–29. On the grievance form, he checked the box on the section informing him
of the following: (1) that he had to attempt informal resolution prior to filing a grievance;
(2) that he had to either attach a copy of the Inmate Request Form with the response
thereto or state the reason why the form was not attached; and (3) that he had to file his
grievance within 30 days of the cause of the grievance. ECF No. 1 at 19; ECF No. 40
at 15. In his grievance, Plaintiff wrote: “No request form atta[]ched, no [in]formal
resolution . . .” ECF No. 1 at 20; ECF No. 40 at 16.
A Grievance Returned Without Disposition form (CN 9606) dated January 14,
2021, informed Plaintiff that his grievance was returned because he did not “attempt to
resolve the issue informally by utilizing the Inmate Request Form system and the Chain
of Command before submitting an Administrative Remedy Form.” ECF No. 1 at 21;
ECF No. 40 at 19. The CN 9606 explained that an “inmate shall attach CN 9601,
Inmate Request Form, containing the employee’s response, or explain why it is not
attached . . . .” ECF No. 1 at 21; ECF No. 40 at 19. The end of the form stated that

7

Plaintiff could “resubmit [his] grievance when it is in compliance with Administrative
Directive 9.6, Inmate Administrative Remedies.” ECF No. 1 at 21; ECF No. 40 at 19.
Plaintiff subsequently filed another grievance dated February 2, 2021, that
complained about his knee being broken as a result of excessive force used in
connection with the incident on December 1, 2020. See ECF No. 1 at 25–26; ECF No.
40 at 17–18. In Section 4 of this grievance, he wrote: “No [in]formal resolution Request
form atta[]ched w/no respon[s]e.” ECF No. 1 at 26; ECF No. 40 at 18. This grievance
was rejected on March 4, 2021, because it was not filed within 30 days of the date of
the incident. ECF No. 1 at 26; ECF No. 40 at 19.
Plaintiff appealed for Level 2 review on March 24, 2021. See ECF No. 1 at 29;
ECF No. 40 at 25. On May 3, 2021, Plaintiff’s appeal was rejected because his
February 20, 2021, grievance was untimely. ECF No. 1 at 29; ECF No. 40 at 25.
Complaint
On May 28, 2021, Plaintiff filed his complaint in this action. See ECG No. 1.
Following an initial review pursuant to 28 U.S.C. §1915A, the court permitted Plaintiff to
proceed under section 1983 for damages based on (1) Eighth Amendment excessive
force claims against Defendant Cordero and Defendant Pun (for their failure to
intervene), and (2) an Eighth Amendment failure to protect claim against Defendant
Pun. See ECF No. 10 at 4–8.

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II.

STANDARD OF REVIEW
Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving
that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be drawn
in favor of the party against whom summary judgment is sought.” Id.; see also
Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This
means that “although the court should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is not required to believe.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see also
Martinez v. Conn. State Library, 817 F. Supp. 2d 28, 37 (D. Conn. 2011). “At the
summary judgment stage of the proceeding, [the moving party is] required to present
admissible evidence in support of their allegations; allegations alone, without evidence
to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No. 3:03-cv-00481,
2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004). Put another way, “’[i]f there is any
evidence in the record that could reasonably support a jury's verdict for the nonmoving
party,’ summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (quoting Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002)).
A party who opposes summary judgment “cannot defeat the motion by relying on

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the allegations in his pleading, or on conclusory statements, or on mere assertions that
affidavits supporting the motion are not credible.” Gottlieb v. County of Orange, 84
F.3d 511, 518 (2d Cir.1996). Where there is no evidence upon which a jury could
properly proceed to find a verdict for the party producing it and upon whom the onus of
proof is imposed, such as where the evidence offered consists of conclusory assertions
without further support in the record, summary judgment may lie. Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 726–27 (2d Cir. 2010).

III.

DISCUSSION
Defendants argue (1) that Plaintiff failed to exhaust his administrative remedies in

compliance with the Prison Litigation Reform Act (“PLRA”), (2) that Plaintiff cannot
establish his Eighth Amendment claims against Defendants, and (3) that qualified
immunity shields Defendants from liability. ECF No. 32-1. Plaintiff asserts that he has
satisfied the exhaustion requirement because administrative remedies were
unavailable. ECF No. 1 at ¶¶ 19–42; ECF No. 38 at ¶ 5; ECF No. 40 at 3–5.
The court first addresses Defendants’ argument that Plaintiff failed to exhaust his
administrative remedies under Administrative Directive 9.6 prior to filing this action.
A.

Exhaustion of Administrative Remedies

The PLRA, which governs actions brought by prison inmates, requires a prisoner
to exhaust administrative remedies prior to filing a federal lawsuit regarding prison
conditions. 42 US.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

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confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”). Failure to exhaust is an affirmative
defense under the PLRA. See Jones v. Bock, 549 U.S. 199, 216 (2007).6 A
defendant bears the burden of showing 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.”).
Section 1997e(a) applies to all claims regarding prison life. See Porter v.
Nussle, 534 U.S. 516, 532 (2002). The statute requires exhaustion of any available
administrative remedies, regardless of whether they provide the relief the inmate seeks.
See Booth v. Churner, 532 U.S. 731, 741 (2001). A claim is not exhausted until the
inmate complies with all administrative deadlines and procedures. See Woodford v.
Ngo, 548 U.S. 81, 90 (2006). Informal efforts to put prison officials on notice of inmate
concerns do not satisfy the exhaustion requirement. See Marcias v. Zenk, 495 F.3d
37, 43 (2d Cir. 2007). If the deadline to file a grievance has passed, an unexhausted
claim is barred from federal court. See Woodford, 548 U.S. at 95. Thus, “untimely or
otherwise 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).
The exhaustion requirement, however, by the statute’s own language, only
applies to available remedies. See Ross v. Blake, 578 U.S. 632, 642 (2016). Thus,

6

Defendants have asserted failure to exhaust as an affirmative defense. ECF No. 15 at 3.
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“an inmate is required to exhaust those, but only those, grievance procedures that are
‘capable of use’ to obtain ‘some relief for the action complained of.’” Id., 578 U.S. at
642 (quoting Booth, 532 U.S. at 738). The Supreme Court of the United States has
established three circumstances under which an administrative procedure is deemed
unavailable: (1) “when (despite what regulations or guidance materials may promise) it
operates as a simple dead end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates;” (2) when a procedure is “so opaque that it becomes,
practically speaking, incapable of use;” or (3) “when prison administrators thwart
inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 643–44. “Whether an administrative remedy
was available to a prisoner in a particular prison or prison system is ultimately a
question of law, even when it contains factual elements.” Hubbs v. Suffolk Cty.
Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015).
It is not sufficient for a plaintiff to exhaust his administrative remedies after filing
his complaint; a plaintiff must exhaust his administrative remedies prior to filing the
action in federal court. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), overruled
on other grounds; Porter, 534 U.S. 516; Gulley v. Bujnicki, No. 3:19-CV-903 (SRU),
2019 WL 2603536, at *3 (D. Conn. June 25, 2019). The Supreme Court has explained:
Because exhaustion requirements are designed to deal with parties who
do not want to exhaust, administrative law creates an incentive for these
parties to do what they would otherwise prefer not to do, namely, to give
the agency a fair and full opportunity to adjudicate their claims.
Administrative law does this by requiring proper exhaustion of
administrative remedies, which means using all steps that the agency
holds out, and doing so properly (so that the agency addresses the
issues on the merits).
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Woodford, 548 U.S. at 90 (citation and internal quotation marks omitted).
Thus, Plaintiff was obligated to exhaust his administrative remedies under
Administrative Directive 9.6 for the claims alleged here prior to filing this action. See
Riles v. Buchanan, 656 F. App'x 577, 581–82 (2d Cir. 2016) (affirming district court's
dismissal based on inmate's failure to exhaust his administrative remedies under
Administrative Directive 9.6). “[I]t is the prison's requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” Bock, 549 U.S. at 218.
Although a defendant bears the burden on this affirmative defense at all times,
the plaintiff may still have to adduce evidence in order to defeat a motion for summary
judgment. See Hudson v. Kirkey, No. 920CV0581 (LEK/DJS), 2021 WL 1966721, at *3
(N.D.N.Y. May 17, 2021) (explaining that once a defendant introduces evidence of a
functional grievance system, plaintiff could not defeat summary judgment without
submitting competent evidence to indicate unavailability).
Under Directive 9.6(6)(C), Plaintiff had until December 31, 2020, to file his
grievance.7 Plaintiff’s first grievance, filed on December 26, 2020, was filed within the
30-day period, but it failed to satisfy the requirement that he show an attempt to reach
an informal resolution prior to filing the grievance, as the directive requires. Plaintiff’s
own grievance form acknowledged his failure to comply with sections (A) and (C) of

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Decisions from this district have calculated the 30-day period under Administrative Directive 9.6 by
excluding the date of the incident. See Sease v. Frenis, No. 3:17-CV-770 (SRU), 2021 WL 260398, at *4
n.3 (noting that Federal Rule of Civil Procedure Fed. R. Civ. P. 6(a)(1)(A) provides when a “statute ...
does not specify a method of computing time” and the “period is stated in days,” one computing the time
should “exclude the day of the event that triggers the period.”).

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Directive 9.6 by failing to seek such informal resolution (before filing the grievance) and
by failing either to attach the CN 9601 (Inmate Request Form) or to explain its omission.
This court previously has determined that an inmate-plaintiff who is aware of the
grievance procedure but who fails to file a proper and timely grievance does not satisfy
the PLRA exhaustion requirement. See Davis v. Williams, No. 3:16-CV-01981 (JAM),
2019 WL 1012008, at *3 (D. Conn. Mar. 4, 2019) (“What is clear from the record is that
[the plaintiff] did not file any proper Level 1 grievance within 30 days of the incident on
August 18, 2016, that gave rise to his grievance. The first grievance that he filed on
August 18, 2016, was indeed timely but manifestly deficient for failure to exhaust the
informal resolution process. [The plaintiff] clearly knew that. The second grievance that
he filed on September 27, 2016, was well more than 30 days after August 18, 2016.
[The plaintiff] clearly knew that as well.”).
But this court has more recently denied a motion for summary judgment that
argued that a plaintiff had failed to exhaust his administrative remedies by filing a
grievance beyond the thirty-day window after his grievance had been returned without
disposition. See Sease v. Frenis, No. 3:17-CV-770 (SRU), 2021 WL 260398, at *7 (D.
Conn. Jan. 25, 2021). In rejecting the defendant’s position, the district court noted that
an inmate could have “virtually (or literally) no opportunity to re-file a corrected Level 1
grievance” within the thirty-day window after a grievance is returned without disposition.
Id. at *8. The district court observed that requiring an inmate to re-file a corrected
grievance within the 30-day period after return without disposition would contradict the
administrative provision of Directive 9.6(6)(E) to “refile[] after the inmate has corrected

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the error[,]” and that such approach would render Directive 9.6 “so opaque that it is
unavailable.” Id.
Here, Plaintiff’s Level 1 grievance was returned without disposition, with the CN
9606 form, on January 14, 2021, after the 30-day period had expired. ECF No. 40 at
19. Both Directive 9.6(6)(E) and the CN 9606 form permit an inmate to re-file a
returned grievance after the inmate corrects any defect. See Sease, 2021 WL 260398,
at *9. As Plaintiff points out, neither Directive 9.6(6)(E) nor CN 9606 provides a time
limit for the inmate to correct the error and resubmit the grievance.8 ECF No. 1 at ¶ 26;
see ECF 32-3. Thus, it is not clear why Plaintiff’s re-filed Level 1 grievance, dated
February 20, 2021—which explained that his attached grievance received no
response—should have been rejected as untimely; any re-filed grievance necessarily
would have been untimely. Although Plaintiff could have taken a timely appeal of this
Level 1 rejection, the administrative scheme under Administrative Directive 9.6 failed to
provide guidance on when he could resubmit his grievance after return without
disposition. Where an administrative scheme makes it impossible for an inmate to
know whether and how to pursue his grievance, the administrative remedy may be
considered to be unavailable because it is “so opaque” and “confusing that … no
reasonable prisoner can use [it].” Williams v. Correction Officer Priatno, 829 F.3d 118,
125 (2d Cir. 2016) (citing Ross, 578 U.S. at 643-644) (first alteration in original, second
alteration added); see also Sease, 2021 WL 260398, at *9 (“If the absence of guidance

8

Of note, the revised Directive 9.6 (which is effective April 30, 2021) provides a time limit of five calendar
days to correct and resubmit a grievance rejected for a procedural defect. A.D. 9.6(6)(b)(2), available at
https://portal.ct.gov/DOC/AD/AD-Chapter-9.
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in a grievance procedure can lead to an administrative scheme's being ‘prohibitively
opaque,’ then surely contradictory instructions in a grievance procedure can also lead to
an administrative scheme's being prohibitively opaque.”) (citing Priatno, 829 F.3d at
124–27) (internal citation omitted).
Thus, construing the relevant evidence most favorably to Plaintiff, the court
concludes that Plaintiff’s administrative remedies were unavailable as “prohibitively
opaque” and therefore should be considered exhausted. See Sease, 2021 WL
260398, at *9. Accordingly, the court rejects Defendants’ argument for summary
judgment on the basis of nonexhaustion.
B.

Merits of the Eighth Amendment Claims

Defendants maintain that no reasonable juror could find either that Defendants
Cordero and Pun violated Plaintiff’s Eighth Amendment rights by using excessive force
against him or that Defendant Pun violated Plaintiff’s Eighth Amendment rights by failing
to protect him from the inmate attack on December 1, 2020.
1.

Eighth Amendment Excessive Force

The Eighth Amendment protects against punishments that “involve the
unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).
An inmate alleging excessive force in violation of the Eighth Amendment has the burden
of establishing both an objective and a subjective component. Sims v. Artuz, 230 F.3d
14, 20 (2d Cir. 2000); see also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
To meet the objective component, the inmate must show that the defendant’s
conduct was serious enough to have violated “contemporary standards of decency.”

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Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Estelle v. Gamble, 429 U.S. 97, 103
1976)). A de minimis use of force will rarely be sufficient to satisfy the objective
component unless that force is also “repugnant to the conscience of mankind.” Wilkins
v. Gaddy, 559 U.S. 34, 38 (2010) (quoting Hudson v. McMillian, 503 U.S. at 9–10).
However, it is the force used, not the injury sustained, that “ultimately counts.” Id.
“When prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated.” Hudson v. McMillian, 503 at
9. The inmate need not have suffered a significant injury as a result of the defendant’s
conduct to satisfy the objective component. See Wilkins, 559 U.S. at 37 (2010).
The subjective component requires the inmate to show that prison officials acted
wantonly and focuses on “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian,
503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). The court
considers factors including “the need for application of force, the relationship between
that need and the amount of force used, the threat reasonably perceived by the
responsible officials, and any efforts made to temper the severity of a forceful
response.” Id. (internal quotations and citation omitted).
a.

Defendant Cordero

In his declaration, Plaintiff avers that a prison guard (whom he has identified as
Defendant Cordero) “lifted” him up and “slammed” him to the ground after he was
assaulted by the other inmate on December 1, 2020. ECF No. 38 at ¶ 4; see ECF No.
22 (identifying Doe defendant as Defendant Cordero). Plaintiff has also submitted a

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declaration from another inmate, Marcus Williams, who avers that he witnessed
Plaintiff’s assault on December 1, 2020, and that an “unidentified prison guard came up
behind [Plaintiff] and violently threw him to the ground without any justification for using
force upon [Plaintiff].” ECF No. 39 at ¶ 3. Defendant Cordero avers that he did not
come into physical contact with Plaintiff or employ any force against him. ECF No. 324 at ¶ 8.

As is often the case with video footage inside a prison, the surveillance

footage submitted in this case does not present a clear depiction of the events relevant
to Plaintiff’s claims of excessive force. During the Corridor Video, the two inmates
involved in the physical assault disappear from view immediately after the assault.
Corridor Video at 55:05-55:08. The Dayroom Video fails to provide a clear view of the
interaction between the responding officers and the two inmates, and the view of the
correctional officers’ response is at times obscured by inmates standing to watch the
incident through the dayroom window. Dayroom Video at 55:12-55:36. Further, the
court cannot determine from either video the identities of the correctional officers or
what specific action the officers took to separate the two inmates. Corridor Video at
55:05-55:14; Dayroom Video at 55:12-55:36. However, the video from the two vantage
points is sufficient for the court to offer the following detail.
Just before the altercation, about ten to fifteen correction officers are positioned
along the walls of the corridor. At about 55:03, someone (presumably the plaintiff)
enters the corridor and, two seconds later (at 55:05), an aggressor attacks him without
provocation, while the two inmates are just beyond arm’s length from the closest officer.
The correction officers respond immediately (without even a moment’s hesitation) and

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separate the two prisoners within a matter of seconds. While the altercation
progressed off screen9 soon after it began, the inmate whom the court presumes to be
the plaintiff was pulled back into view by several officers a mere five seconds later (at
about 55:13), with Plaintiff still facing the direction of the altercation.
They dayroom video shows a door with its top half apparently made of glass,
along a wall of glass panels. Looking through that glass wall, it appears that the
dayroom is at the start of a hallway just off the corridor where the altercation began.
Around 55:08, the altercation is visible in the hallway near the corridor. It quickly
moves into the hallway outside the dayroom door, and the altercation progresses to the
ground within three seconds. Immediately thereafter, the group of correction officers
intervene and separate the parties. By 56:00, the entire incident appears to be over.
The inmates who were in the dayroom moved toward the altercation shortly after it
progressed to the ground, somewhat limiting visibility of that portion of the incident, but
it is clear that the officers who responded to the attack were very close to one another,
and that they separated the parties extremely quickly.
The court acknowledges that correction officers often have to act quickly and
decisively in resolving prison altercations before serious injury occurs, and before
additional inmates have the opportunity to join in the violence (or to prevent officers
from gaining control of the situation). Still, it is possible for such officer response to be
immediately malicious, sadistic, or excessive in nature. In the present case, it certainly
does not appear as though any officer responds with any wanton or gratuitous violence

9

The two inmates exit the view of the corridor video at about 55:08.
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in so quickly and effectively separating the parties. Nevertheless, the court must admit
that the video is not of high enough quality to clearly discern the individuals, their
positioning, and their actions, so the court hesitates to stand in the place of the jury in
determining whether even a quick and decisive act was excessive in this situation; it
cannot render a credibility assessment on a motion for summary judgment. Fischl v.
Armitage, 128 F.3d 50, 55 (2d Cir. 2017) (“Credibility assessments, choices between
conflicting versions of the events, and the weighing of evidence are matters for the jury,
not for the court on a motion for summary judgment.”). Because the record, including
the video evidence, fails to establish as a matter of law that Defendant Cordero did not
apply excessive force, the court must deny summary judgment on Plaintiff’s claim of
excessive force against Defendant Cordero. The court will leave Plaintiff to his proof.
b.

Defendant Pun

Officers are liable not only when they use excessive force themselves, but also
when they fail to intervene to stop the excessive use of force by another officer when they
are in a position to observe the conduct and have time to intervene. See Sloley v.
VanBramer, 945 F.3d 30, 46-47 (2d Cir. 2019). “Liability attaches on the theory that the
officer, by failing to intervene, becomes a ‘tacit collaborator’ in the illegality.” Figueroa v.
Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (quoting O'Neill v. Krzeminski, 839 F.2d 9, 11–
12 (2d Cir. 1988)).
Plaintiff adduces no support for, and the record fails to show, any suggestion that
Defendant Pun was in a position to observe the correctional officers’ response to the
assault or that she had an opportunity to intervene in that response. See Corridor

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Video at 55:05-55:14; Dayroom Video at 55:08-55:36; see also Sloley, 945 F.3d at 4647. Even if Officer Pun had been in the immediate vicinity of the altercation, and even
if some single, instantaneous act of another officer possibly was excessive (however
remote the possibility in this case), it would be entirely unreasonable for any jury to
determine that Officer Pun could have stepped in to prevent such force in this case.
Neither the corridor nor the dayroom video appears to show Officer Pun, but the
correction officers who were near the altercation when it began were undeniably quick
to address the situation with almost instantaneous effectiveness. While the court has
denied summary judgment as to Officer Cordero only in acknowledging the possibility
(however remote in this case) that decisive yet excessive action possibly can take place
in a brief moment, the court also hereby emphasizes just how quickly the officers
regained peace and prevented additional harm to Plaintiff at the hands of his attacker.
The court also emphasizes that the officers separated the inmates very quickly, so the
present case easily and entirely is distinguishable from incidents wherein an officer is
accused of standing by during a more lengthy officer-involved struggle or altercation.
If any excessive conduct took place at all (and the court once again notes that
the opportunity would have been slight, and the act instantaneous), no jury reasonably
would be able to find that Officer Pun failed to intervene under these circumstances.
For that reason, summary judgment is granted as to Defendant Pun.
2.

Eighth Amendment Failure to Protect

“[P]rison officials have a duty . . . to protect prisoners from violence at the hands
of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes–

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Quinones v. Jimenez–Nettleship, 842 F.2d 556, 558 (CA1) (first alteration added,
second alteration in original). However, not “every injury suffered by one prisoner at
the hands of another ... translates into constitutional liability for prison officials
responsible for the victim's safety.” Id. at 834. A claim that a correctional officer failed
to protect an inmate from attack rises to the level of a constitutional violation only when
the officer acted with “‘deliberate indifference’ to a substantial risk of serious harm to an
inmate.” Id. at 828.
The Corridor Video clearly shows that the inmate standing in the corridor made a
sudden assault on the inmate presumed to be Plaintiff as he walked down the hall.
Corridor Video at 55:05. Plaintiff has adduced no evidence suggesting that Defendant
Pun had any awareness that Plaintiff would be assaulted by another inmate on
December 1, 2020, or that she could have taken steps to protect him from that assault.
Upon review of the present record, no reasonable juror could conclude that
Defendant Pun acted with deliberate indifference by failing to protect Plaintiff from an
inmate assault on December 1, 2020. Accordingly, the court must grant summary
judgment in Defendant Pun’s favor on this claim as well.
C.

Qualified Immunity

Qualified immunity “protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity “affords government officials ‘breathing room’ to make reasonable—

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even if sometimes mistaken—decisions.” Distiso v. Cook, 691 F.3d 226, 240 (2d Cir.
2012) (quoting Messerschmidt v. Millender, 565 U.S. 535, 553 (2012)).
“The qualified immunity standard is ‘forgiving’ and ‘protects all but the plainly
incompetent or those who knowingly violate the law.’” Grice v. McVeigh, 873 F.3d 162,
166 (2d Cir. 2017) (quoting Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010)).
“The doctrine of qualified immunity shields officials from civil liability so long as
their conduct ‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11
(2015) (quoting Pearson, 555 U.S. at 231). The court has discretion to determine the
order in which it will address the inquiries required when assessing the applicability of
qualified immunity. See Johnson v. Perry, 859 F.3d 156, 170 (2d Cir. 2017)
(quoting Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010)).
A right is clearly established if, “at the time of the challenged conduct ... every
‘reasonable official would have understood that what he is doing violates that
right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). There is no requirement that a case have been decided
which is directly on point, “but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id.
In addition, qualified immunity protects government actors when it was
objectively reasonable for the government actor to believe that his conduct did not
violate a clearly established right. Manganiello v. City of New York, 612 F. 3d 149, 165
(2d Cir. 2010). “If a reasonable officer might not have known for certain that the conduct

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was unlawful – then the officer is immune from liability.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1867 (2017). Therefore, the question this court first asks is whether it was
objectively reasonable for either of the defendants to believe their conduct was not
unlawful at the time. Simpson v. City of New York, 793 F.3d 259, 268 (2d Cir. 2015).
1.

Defendant Cordero

Because the qualified immunity analysis turns on the facts surrounding whether
Defendant Cordero was involved in a misuse of force during the response to the
assault, and because the court has already found that those factual questions are
genuinely in dispute, the court cannot conclude that Defendant Cordero is shielded by
qualified immunity. Thus, the qualified immunity argument must be rejected with
respect to the Eighth Amendment excessive force claim against Defendant Cordero.
2.

Defendant Pun

As the record evidence shows no indication that Defendant Pun could have had
the opportunity to intervene to prevent the excessive force allegedly applied to Plaintiff,
or to protect Plaintiff from the inmate assault on December 1, 2020, Defendant Pun is
entitled to qualified immunity from liability; it was objectively reasonable for her to
believe that she acted reasonably by alerting correctional staff about the Plaintiff’s
assault. Accordingly, the court grants the Motion in Defendant Pun’s favor on the
alternative ground of qualified immunity.

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IV.

CONCLUSION

For the foregoing reasons, it is thereupon ORDERED AND ADJUDGED as
follows:
1.

Defendants’ Motion for Summary Judgment is GRANTED in part.
a. The motion is DENIED as to the Eighth Amendment excessive force
claim against Defendant Cordero.
b. The motion is GRANTED as to the Eighth Amendment claims against
Defendant Pun. Defendant Pun hereby is dismissed from this action.

2.

Pursuant to Local Rule 83.10, the court concludes that appointment of
counsel will serve the interests of justice. Therefore, the court respectfully
asks the Clerk of Court to assign a pro bono attorney to represent Plaintiff
in this action.

_____________/s/______________
Omar A. Williams
United States District Judge

SO ORDERED at Hartford, Connecticut this 19th day of September, 2022.

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