Rodriguez v. Machinski et al

Filing 32

ORDER granting 24 Motion for Summary Judgment.For the reasons set forth in the attached Ruling and Order the Court GRANTS the Defendants' Motion for Summary Judgment, ECF No. 24 , and DISMISSES Ms. Rodriguez's Complaint, ECF No. 1 , with prejudice. The Clerk of Court is respectfully directed to enter judgment and close this case.Signed by Judge Victor A. Bolden on 11/22/2024. (McCowan, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHARLIM MARIE RODRIGUEZ,
Plaintiff,
v.
TRICIA A. MACHINSKI, MD, and
OMPRAKASH PILLA, MD,
Defendants.

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No. 3:23-cv-306 (VAB)

RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
Sharlim Marie Rodriguez (“Plaintiff”), a sentenced prisoner in the custody of the
Connecticut Department of Correction (“DOC”), filed a Complaint pro se under 42 U.S.C. §
1983, asserting claims for violations of her civil rights against Dr. Tricia A. Machinski and Dr.
Omprakash Pillai (collectively, “Defendants”), who are both sued in their individual and official
capacities. See ECF No. 1 (“Compl.”). The Court permitted Ms. Rodriguez’s Eighth Amendment
medical deliberate indifference claim against Dr. Machinski and Dr. Pillai to proceed in its Initial
Review Order. See ECF No. 10 at 6.
Before the Court is Defendants’ motion for summary judgment and supporting
memorandum (together, “Mot.”). See ECF Nos. 24–24-1. The Court has reviewed the motion,
the facts contained in Defendants’ Local Rule 56(a)1 statement, ECF No. 24-2, Defendants’
exhibits, ECF No. 24-4–24-9, Ms. Rodriguez’s objection to the motion, ECF No. 29, and the
record in this matter.
For the following reasons, the motion for summary judgment is GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Allegations 1
On April 19, 2021, Ms. Rodriguez entered the custody of the DOC. ECF No. 24-2 at 1 ¶
1. At intake, Dr. Machinski ordered bloodwork and testing. Id. ¶¶ 2–3. Dr. Machinski ordered
bloodwork and testing at intake. Id. ¶¶ 2–3. On April 22, 2021, Ms. Rodriguez tested positive for
Hepatitis C. Id. ¶ 4. But Dr. Pillai did not tell Ms. Rodriguez of her positive Hepatitis C result
until a doctor’s visit on March 21, 2022, nearly one year later. Id. ¶ 5.
On March 30, 2022, Ms. Rodriquez tested again for Hepatitis C. Id. ¶ 6. Several days
later, Ms. Rodriguez learned she still had Hepatitis C. Id. ¶ 7. The next day, Ms. Rodriguez

1

Because the Court can decide Defendants’ motion on the first ground alone, it recites here only
those facts necessary to decide whether Defendants can prevail on the affirmative defense of
failure to exhaust administrative remedies. The relevant facts are taken from Defendants’ Local
Rule 56(a)1 statement and supporting exhibits. See ECF No. 24-2. 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 denial
must include a specific citation to an affidavit or other admissible evidence. D. Conn. L. Civ. R.
56(a)3. Defendants informed Ms. Rodriguez of this requirement. See ECF No. 24-3 (“Notice to
Self-Represented Litigant Concerning Motion for Summary Judgment as Required by Loc. R. of
Civ. Pro. 56(b)”). Ms. Rodriguez did not submit a compliant Local Rule 56(a)2 statement with
her Objection to Defendants’ Motion. See ECF No. 29.
Ms. Rodriguez is not excused from complying with the Court’s procedural and substantive rules
merely because she is unrepresented. See Evans v. Kirkpatrick, 2013 WL 638735, at *1
(W.D.N.Y. Feb. 20, 2013) (citing Treistman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006)); see also Jackson v. Onodaga Cnty., 549 F.Supp.2d 204, 214 (N.D.N.Y. 2008)
(“[W]hen a plaintiff is proceeding pro se, ‘all normal rules of pleading are not absolutely
suspended.’” (citation omitted)). Thus, Defendants’ facts contained in their Local Rule 56(a)1
statement, where supported by evidence of record, are deemed admitted. See D. Conn. L. Civ. R.
56(a)3 (“Failure to provide specific citations to evidence in the record as required by this Local
Rule may result in the Court deeming admitted certain facts that are supported by the evidence in
accordance with Local Rule 56(a)1, or in the Court imposing sanctions....”).
Ms. Rodriguez’s opposition memorandum states that “[t]he plaintiff incorporates by reference
his Local Rule 56(a)(2) Statement as if fully set forth herein.” ECF No. 29 at 3, but this does not
comply with the Local Rules. See supra.
2

began treatment for her Hepatitis C, id. ¶ 8, and completed it on June 3, 2022. Id. ¶ 9. Bloodwork
from that date no longer showed traces of the virus. Id. Subsequent blood tests also no longer
showed traces of the virus. Id. ¶ 10.
On May 9, 2022, Ms. Rodriguez filed a Level 1 HSAR grievance seeking a remedy for
the delayed diagnosis and treatment of her Hepatitis C. ECF No. 24-2 ¶ 11; ECF No. 24-5 at 2.
Colleen Gallagher, Correctional Health Services Program Director in the DOC Central Office,
ECF No. 24-7 ¶ 2, rejected this grievance because it was “not procedurally compliant.” Id. ¶¶ 23–
24. According to Gallagher, once a Level 1 HSAR grievance is rejected, “the administrative
remedy [is] not [] written or processed according to directive procedures and no appeals may be
processed regarding it.” Id. ¶ 25.
But, on July 15, 2022, Ms. Rodriguez filed a Level 2 HSAR appeal. ECF No. 24-5 at 6.
She acknowledged in this Level 2 HSAR appeal that her Level 1 HSAR grievance had been
rejected. See id. On August 29, 2022, Ms. Rodriguez then filed a Level 3 HSAR appeal because
she had received no response to her Level 2 HSAR appeal. See ECF No. 24-5 at 7.
B. Procedural History
On March 6, 2023, Ms. Rodriguez filed a Complaint pro se against Drs. Machinski and
Pillai in their individual and official capacities for violations of her civil rights under 42 U.S.C. §
1983. See Compl.
On May 26, 2023, the Court issued its initial review order allowing Ms. Rodriguez to
proceed on her Eighth Amendment medical indifference claims against Drs. Machinski and Pillai
in their individual and official capacities. See Initial Review Order, ECF No. 10.
On September 7, 2023, Drs. Machinski and Pillai answered the Complaint with their
affirmative defenses and a jury demand. See Answer, ECF No. 18.
3

On March 8, 2024, Drs. Machinski and Pillai filed a motion for summary judgment. Mot.
On April 23, 2024, Ms. Rodriguez filed an objection to Drs. Machinski and Pillai’s
motion for summary judgment. Obj. to Mot. for Summary Judgment, ECF No. 29 (“Obj.”).
On November 12, 2024, the Court noticed a hearing by Zoom on the motion for summary
judgment for November 20, 2024. Notice, ECF No. 31.
On November 20, 2024, the Zoom hearing on the motion for summary judgment
occurred.
II.

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. Fed. R.
Civ. P. 56(a); 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 responsibility of informing the district court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal quotations omitted). Once the moving party meets this burden, “the
party opposing summary judgment may not merely rest on the allegations or denials of his
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pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth
‘specific facts’ demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). To defeat a motion for summary
judgment, the nonmoving party “must offer such proof as would allow a reasonable juror to
return a verdict in his favor[.]” Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
“In determining whether there are genuine issues of material fact, we are required to
resolve all ambiguities and draw all permissible factual inferences in favor of the party against
whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)
(internal quotations omitted). 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).
III.

DISCUSSION
Defendants argue that: (1) Ms. Rodriguez failed to exhaust her administrative remedies;

and (2) her Eighth Amendment medical deliberate indifference claim fails as a matter of law. See
ECF No. 24-1 at 1.
The Court will address each argument in turn.
A. The Exhaustion of Administrative Remedies Issue
The Prison Litigation Reform Act (“PLRA”) requires a prisoner pursuing a federal
lawsuit to exhaust available administrative remedies before a court may hear her case. See 42
U.S.C. § 1997e(a) (providing in pertinent 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
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jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.”); see also Ross v. Blake, 578 U.S. 632, 635 (2016); Baez v. Kahanowicz, 278 F.
App’x 27, 29 (2d Cir. 2008).
“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Exhaustion
is mandatory—unexhausted claims may not be pursued in federal court.” Amador v. Andrews,
655 F.3d 89, 96 (2d Cir. 2011); see also Jones v. Bock, 549 U.S. 199, 211 (2007).
The PLRA also requires “proper exhaustion”; the inmate must use all steps required by
the administrative review process applicable to the institution in which he is confined and do so
properly. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also
Amador, 655 F.3d at 96 (exhaustion necessitates “using all steps that the [government] agency
holds out and doing so properly”). The Supreme Court has held that the requirement for proper
exhaustion is not met when a grievance is not filed in accordance with the deadlines established
by the administrative remedy policy. Id. at 217–18 (citing Woodford, 548 U.S. at 93–95).
1. The Administrative Remedies Available in the Connecticut Department of Correction
The State of Connecticut DOC Administrative Directive (“A.D.”) 8.9 contains
administrative rules for filing Health Services Administrative Remedies (“HSAR”) grievances,
which “enable[s] an inmate to seek formal review of any health care provision, practice,
diagnosis or treatment.” A.D. 8.9(1). A copy of A.D. 8.9 is attached to Defendant’s Motion. See
ECF No. 24-6 at 2. There are three steps to the HSAR process: informal resolution, grievance,
and appeal. Id. 8.9(3)(c)(i)–(iii). A copy of A.D. 8.9 is “available at each facility and available to

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inmates upon request,” id. 8.9(4)(a)(i), and a written summary of A.D. 8.9 is given to inmates at
orientation. Id. 8.9(4)(a)(ii).
HSARs are limited to diagnosis/treatment and administrative issues. See id. 8.9(6)(a)(i)–
(ii). A.D. 8.9(6) sets forth the procedures for filing an HSAR. If an HSAR request complies with
these procedures, it is processed; if not, it is rejected, and the inmate is notified. Id.
8.9(6)(b)(i)(1)(a)–(b). The first step in the HSAR process is to seek informal resolution,
including an attempt to resolve the issue verbally with a staff member. Id. 8.9(6)(b)(ii)(1)–(2). If
that conversation does not resolve the issue, the inmate must submit a CN 9601 form stating the
problem, the action requested to remedy the issue, and the date and time of the attempt at verbal
resolution. Id. 8.9(6)(b)(ii)(3). The inmate must receive a response to the CN 9601 within fifteen
business days. Id. 8.9(6)(b)(ii)(7).
If the inmate is unsatisfied with the response she receives from her CN 9601, she must
file a Level 1 HSAR grievance on a CN 8901 form. Id. 8.9(6)(b)(iii)(1)–(2). The CN 8901 form
must be accompanied by the previously filed CN 9601 form and response. Id. 8.9(6)(b)(iii)(2). If
unable to provide the CN 9601 form and response with her CN 8901 form, the inmate must
explain why. Id. 8.9(6)(b)(iii)(2)(a). The CN 8901 form and required documents “must be filed
within 30 calendar days of the occurrence or discovery of the cause of or reason for the request
for the Health Services Administrative Remedy.” Id. 8.9(6)(b)(iii)(4).
Level 1 HSAR review consists of a Health Services staff member reviewing the CN 8901
form and documentation. See id. 8.9(6)(c)(i)(1). The CN 8901 form contains two checkboxes:
“Diagnosis/Treatment” and “Administrative.” See ECF No. 24-5 at 2. If the inmate checks the
“Diagnosis/Treatment” box, she must “concisely explain the specific diagnosis or treatment
decision and specify the date of diagnosis or treatment. The inmate shall explain how he or she is
7

dissatisfied with the diagnosis and treatment, how he or she has been affected, and concisely
state the resolution desired.” A.D. 8.9(6)(c)(i)(1).
After reviewing the completed CN 8901 form, the HSAR coordinator must “consult with
the provider who made the decision to determine what action, if any, should be taken.” Id.
8.9(6)(c)(i)(2)(a). If the provider decides that the existing diagnosis or treatment is appropriate,
the remedy shall be denied and not subject to further appeal. Id. But, if the provider determines
further evaluation is necessary, the provider may schedule a Health Services Review
appointment. Id. 8.9(6)(c)(i)(2)(b).
Level 2 HSAR review consists of review of the Level 1 HSAR disposition. See id.
8.9(6)(c)(iii)(1). An inmate may appeal a Level 1 HSAR disposition by filing a CN 8902 form
“within five (5) calendar days of receipt of the Level 1 decision.” Id. The Regional Chief
Operating Officer reviews Level 2 HSAR appeals and must issue a response within thirty
business days. Id. 8.9(6)(c)(iii)(2)–(3). If the inmate does not receive a response within thirty
days, she may file a Level 3 HSAR appeal “within 65 calendar days from the date that the initial
CN 8901…was documented in the…Health Service Administrative Remedies Log.” Id.
8.9(6)(c)(iii)(4)(a). Level 2 HSAR review is “the final level of review of all remedies unless the
appeal meets the requirements for a Level 3 review.” Id. 8.9(6)(c)(iii)(5).
Level 3 HSAR reviews are “restricted to appeals of Level 2 decisions.” Id.
8.9(6)(c)(iv)(1). Level 3 HSAR reviews must be filed within five days of receiving a Level 2
HSAR decision, id. 8.9(6)(c)(iv)(2), or within sixty-five days of filing a CN 8902 if no decision
on the CN 8902 was received within thirty business days. Id. 8.9(6)(c)(iv)(2)(a). Level 3 HSAR
reviews are conducted by the Chief Operating Officer and are “the final level of review of all
remedies.” Id. 8.9(6)(c)(iii)(3), (5).
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2.

Ms. Rodriguez’s Specific Efforts to Exhaust Here

The undisputed facts show that Ms. Rodriguez filed a CN 8901 seeking Level 1 HSAR
review for the delayed diagnosis and treatment of her Hepatitis C on May 9, 2022. See ECF No.
24-2 ¶ 11; ECF No. 24-5 at 2. Gallagher stated in her Declaration that Ms. Rodriguez’s Level 1
HSAR grievance “was not procedurally compliant.” ECF No. 24-7 ¶ 23. Gallagher’s statement is
conclusory and does not explain why Ms. Rodriguez’s Level 1 HSAR grievance “was not
procedurally compliant.” But Ms. Rodriguez’s Level 1 HSAR grievance, viewed in light of A.D.
8.9 and its subparts, indisputably shows that Ms. Rodriguez’s Level 1 HSAR grievance was
procedurally incompliant for two reasons.
First, Ms. Rodriguez’s Level 1 HSAR grievance was untimely. A Level 1 HSAR
grievance “must be filed within 30 calendar days of the occurrence or discovery of the cause of
or reason for the request for the Health Services Administrative Remedy.” A.D. 8.9(6)(b)(iii)(4).
This is stated on the CN 8901 form Ms. Rodriguez submitted. See ECF No. 24-5 at 2. Ms.
Rodriguez’s reason for filing the Level 1 HSR grievance was because she was not notified by
prison medical staff that she had Hepatitis C until March 21, 2022. See id. Thus, the “occurrence
or discovery of the cause of or reason for the request” for filing the Level 1 HSAR grievance was
March 21, 2022.
But Ms. Rodriguez did not file her grievance until May 9, 2022, id.—well beyond the
thirty-day deadline for filing her Level 1 HSAR grievance. Ms. Rodriguez’s Level 1 HSAR
grievance was therefore untimely and should have been rejected under the Administrative
Directives. See A.D. 8.9(4)(h) (stating “[a]ny request for a Health Services Administrative
Remedy that does not adhere to the time limitations set forth shall be rejected”).

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Second, Ms. Rodriguez’s untimely Level 1 HSAR grievance did not contain the required
information. 2 Ms. Rodriquez checked the box labeled “Diagnosis/Treatment” on her Level 1
HSAR grievance form. 3 ECF No. 24-5 at 2. An inmate filing a Level 1 HSAR grievance related
to diagnosis and treatment must “concisely explain the specific diagnosis or treatment decision
and specify the date of diagnosis or treatment.” A.D. 8.9(6)(c)(i)(1). Ms. Rodriguez’s Level 1
HSAR grievance satisfies this first requirement because she explains her diagnosis and treatment
history with corresponding dates. See ECF No. 24-5 at 2.
But the inmate is also required to “explain how he or she is dissatisfied with the diagnosis
and treatment, how he or she has been affected, and concisely state the resolution desired.” A.D.
8.9(6)(c)(i)(1). Ms. Rodriguez explains how she was dissatisfied with the treatment (explaining
that “it took almost an entire year to tell [her] about [her] diagnosis”) and explains how she was
affected (explaining that she “could have treated this problem way sooner” and that “she [did
not] know how it has affected [her] liver” or whether she “passed it to anyone else”). ECF No.
24-5 at 2.
She does not, however, “state the resolution desired,” as required by A.D. 8.9(6)(c)(i)(1).

2

Defendants argue Ms. Rodriguez’s grievance is procedurally incompliant because it “failed to
include the requisite CM 9201 form indicating that she attempted to resolve the issue
informally.” ECF No. 24-1 at 12. But A.D. 8.9(6)(b)(3)(iii)(2) permits an inmate to explain the
absence of the form. Ms. Rodriguez explained in her HSAR Level 1 grievance that the form was
not attached because she did not receive a response to her informal grievance. See ECF No. 24-5
at 2. This explanation satisfies A.D. 8.9(6)(b)(3)(iii)(2) and would not be a ground for rejection.
3
Defendants maintain that Ms. Rodriguez’s Level 1 HSAR grievance was rejected because Ms.
Rodriguez checked the “Diagnosis/Treatment” box instead of the “Administrative” box on the
CN 8901. See ECF No. 24-1 at 12. But under A.D. 8.9(6)(a)(i), the “Diagnosis/Treatment”
category includes “review of diagnosis or treatment decision…including the decision to provide
no treatment, relating to the individual inmate.” (emphasis added). Ms. Rodriguez’s complaint
that she did not receive treatment for her Hepatitis C in the months after she tested positive for it,
see ECF No. 24-5, fairly falls within the “Diagnosis/Treatment” category as it is defined in A.D.
8.9(6)(a)(i). Thus, the Court disagrees with Defendants that this would be a ground for rejection.
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Ms. Rodriguez states in her Level 1 HSAR grievance that “[a]t this point, I don’t know what you
can do for me[.] I’m on the treatment[;] I just don’t appreciate the neglect I went thr[ough] and
the failure to treat me [a]t the proper time[,] which may have caused complications for me in the
future.” ECF No. 24-5 at 3.
The “resolution desired” is critical to the Level 1 HSAR review process described in A.D.
8.9(6)(c)(i). Once the HSAR coordinator receives an inmate’s Level 1 HSAR grievance, the
HSAR coordinator “shall consult with the provider who made the decision to determine what
action, if any, should be taken.” A.D. 8.9(6)(c)(i)(2)(a). If an inmate does not state “the
resolution desired,” the HSAR coordinator cannot “consult[ ] the provider who made the
decision to determine what action, if any, should be taken,” A.D. 8.9(6)(c)(i)(2)(a), because the
inmate has not requested any action to be taken.
Because Ms. Rodriguez’s Level 1 HSR grievance was not filed within 30 days of the
“occurrence or discovery of the cause of or reason for the request” under AD 8.9(6)(b)(iii)(4) and
because it did not “state the resolution desired” as required by A.D. 8.9(6)(c)(i)(1), the
undisputed facts show that Ms. Rodriguez’s Level 1 HSR grievance was properly rejected for (1)
being untimely, see A.D. 8.6(4)(h), and (2) failing to contain the necessary information under
A.D. 8.9(6)(c)(i)(1). See A.D. 8.6(6)(c)(ii)(2)(a)(i) (“If the Health Services Administrative
Remedy Coordinator finds the request not to be in compliance, then the Health Services
Administrative Remedy shall be rejected, and the inmate shall so be notified.”).
Thus, even though Gallagher’s statement that Ms. Rodriguez’s Level 1 HSAR grievance
“was not procedurally compliant,” ECF No. 24-7 ¶ 23, is conclusory, Ms. Rodriguez’s Level 1
HSAR grievance, ECF No. 24-5 at 2, viewed in light of A.D. 8.9 and its subparts, independently

11

supports Gallagher’s conclusion with indisputable evidence. Gallagher’s statement, where
supported by evidence of record, is thus deemed admitted. See D. Conn. L. Civ. R. 56(a)3.
An inmate can correct a procedurally deficient Level 1 HSAR grievance by resubmitting
a corrected Level 1 HSAR grievance within five calendar days after the initial Level 1 HSAR
grievance is rejected. See A.D. 8.6(6)(c)(ii)(2)(a)(i)(1). If the corrected Level 1 HSAR grievance
does not correct the defect, “the request for the Health Services Administrative Remedy shall be
rejected and not subject to further appeal.” Id. The record does not show that Ms. Rodriguez
attempted to correct the defect in her Level 1 HSAR grievance by submitting a corrected CN
8901. Nor does Ms. Rodriguez maintain in her response that she did. But even if Ms. Rodriguez
had submitted a corrected Level 1 HSAR grievance that “state[d] the resolution desired,” as
required by A.D. 8.9(6)(c)(i)(1), that corrected grievance would have still been untimely under
A.D. 8.9(6)(b)(iii)(4), for reasons described above.
Even if Ms. Rodriguez’s Level 1 HSAR grievance was sufficient and improperly
rejected, proper exhaustion required Ms. Rodriguez to use all steps required by the
administrative review process applicable to the institution in which she is confined and to do so
properly. See Day v. Chaplin, 354 F. App’x 472, 474 (2d Cir. 2009) (quoting Woodford, 548
U.S. at 83–84) (noting that “the Supreme Court held that the exhaustion requirement of the
PLRA cannot be satisfied by an ‘untimely or otherwise procedurally defective administrative
grievance or appeal’ and that the PLRA requires ‘proper exhaustion,’ which ‘means using all
steps that the agency holds out, and doing so properly (so that the agency addresses the issues on
the merits).’”); Urbanski v. Dep’t of Correction, No. 3:18-CV-01323(VLB), 2019 WL 6683047,
at *6 (D. Conn. Dec. 5, 2019) (quotation omitted) (noting that “[t]o properly exhaust a § 1983
claim in Connecticut, a prisoner must comply with all steps set forth in Directive 9.6, including
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deadlines and utilization of each step of the administrative appeal process.” (emphasis original)).
Thus, proper exhaustion required Ms. Rodriguez to seek informal resolution, A.D.
8.9(6)(b)(ii)(1), file a Level 1 HSAR grievance, id. 8.9(6)(b)(iii)(1), file a corrected Level 1
HSAR grievance if the initial Level 1 HSAR grievance was procedurally deficient, id.
8.9(6)(c)(ii)(2)(a)(i)(1), file a Level 2 HSAR appeal, id. 8.9(6)(c)(iii)(1), and file a Level 3
HSAR appeal. Id. 8.9(6)(c)(iv)(2).
Ms. Rodriguez attempted to do this by filing a Level 2 HSAR appeal, see ECF No. 24-5,
despite her Level 1 HSAR grievance being rejected and “not subject to further appeal.” See ECF
No. 24-5 at 4. But an inmate can only “request an administrative reconsideration of a Level 1
disposition by utilizing a CN 8902, Appeal of Health Services Administrative Remedy FormLevel 2, within five (5) calendar days of receipt of the Level 1 decision.” A.D. 8.6(6)(c)(iii)(1).
Ms. Rodriguez received her decision on June 20, 2022. See ECF No. 24-5 at 5. And, Ms.
Rodriguez did not file her Level 2 HSAR appeal until July 15, 2022, id. at 6—well past the time
for filing a Level 2 HSAR appeal under A.D. 8.6(6)(c)(iii)(1).
Based on the undisputed facts, Ms. Rodriguez’s Level 1 HSAR grievance was
procedurally deficient under A.D. 8.9 and its subparts and her Level 2 HSAR appeal was
untimely. Therefore, Ms. Rodriguez did not properly exhaust the administrative remedies
available to her. See, e.g., Pommer v. Vaughn, No. 3:07-CV-537(WWE), 2009 WL 1490570, at
*4 (D. Conn. May 27, 2009) (concluding that plaintiff had not exhausted his administrative
remedies under the Department of Corrections Administrative Directives because his “grievance
was rejected and [ ] the appeal of the dismissal was filed late”); Riles v. Bannish, No. 3:10-CV652 (RNC), 2015 WL 5796999, at *2 (D. Conn. Sept. 30, 2015), aff d sub nom., Riles v.
Buchanan, 656 F. App’x 577 (2d Cir. 2016) (concluding that “plaintiff did not properly exhaust
13

the administrative remedies available to him because he did not initiate the process by submitting
an Inmate Request Form seeking informal resolution, and his Level 1 HSAR grievance was
procedurally deficient”).
Exhaustion of administrative remedies is an affirmative defense. Thus, the defendant
bears the burden of proof. See Jones, 549 U.S. at 216. Once the defendant presents evidence
establishing that administrative remedies were not exhausted before the inmate filed her lawsuit,
as Defendants have done here, the plaintiff must establish that administrative remedy procedures
were not available to her under Ross v. Blake, 578 U.S. 632 (2016) or present evidence showing
that she did exhaust her administrative remedies. See Smith v. Kelly, 985 F.Supp.2d 275, 284
(N.D.N.Y. 2013) (“[O]nce 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”). Because Ms. Rodriguez has failed to provide evidence that she
exhausted her administrative remedies, she must prove that administrative remedies were
unavailable to her under Ross. See Burrell v. Quiros, No. 3:21-CV-393 (KAD), 2023 WL
8527176, at *4 (D. Conn. Dec. 8, 2023) (citing Smith, 985 F.Supp.2d at 284).
The Ross Court identified three circumstances in which a court could find that
administrative remedies were not available to prisoners under the PLRA. Ross, 578 U.S. at 643–
44. First, “an administrative procedure is unavailable 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.” Id. at 643. “Next, an administrative
remedy scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id.
Finally, an administrative remedy is not “available” when “prison administrators thwart inmates
14

from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id. The Second Circuit has noted that “the three circumstances discussed in Ross
do not appear to be exhaustive[.]” Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016). In
considering the issue of availability, however, the Court is guided by these illustrations. See
Mena v. City of New York, No. 13-cv-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19,
2016).
Ms. Rodriguez bears the burden of proving that exhaustion was unavailable to her under
Ross. See Burrell, supra, at *4. Because Ms. Rodriguez has presented no evidence in response to
the Defendants’ Motion for Summary Judgment, she cannot meet her burden of showing this.
Because record evidence shows that Ms. Rodriguez was able to utilize the administrative
grievance process, albeit without success, there is no evidence in the record that “officers [were]
unable or consistently unwilling to provide any relief to aggrieved inmates,” that the
“administrative remedy scheme [was] so opaque that it [was] incapable of use,” or that “prison
administrators thwart[ed] inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643.
Ms. Rodriguez does argue in an unsworn explanation in her response that “she was not
told that there was a problem with her level one grievance.” ECF No. 29 at 7. Ms. Rodriguez
therefore “believed that her grievance was exhausted as it was not subjected to further appeal,
not that it was rejected because it did not meet the requirements of a proper grievance.” Id. This
explanation fails for two reasons.
First, the Administrative Directives do not require officials to provide a reason for the
rejection of the grievance—only notification of the objection. See A.D. 8.9(6)(c)(ii)(2)(a)(i) (“If
the Health Services Administrative Remedy Coordinator finds the request not to be in
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compliance, then the Health Services Administrative Remedy shall be rejected and the inmate
shall so be notified.”). According to Gallagher, “[i]nmates are required to adhere to the
procedure outlined in Admin. Dr. 8.9,” ECF No. 24-7 ¶ 13, which is readily available to inmates.
See A.D. 8.9(4)(a)(i)–(ii). Therefore, the inmate must identify the reason for rejection in the
Administrative Directives and cure the defect, if possible. See A.D.8.9(6)(c)(ii)(2)(a)(i)(1).
Second, Ms. Rodriguez’s “belie[f] that her grievance was exhausted as it was not
subjected to further appeal,” ECF No. 29 at 7, is not supported by her subsequent filings of Level
2 and Level 3 HSAR appeals. ECF No. 24-5 at 6–7. If Ms. Rodriguez thought her grievance was
exhausted and not subject to further appeal, there would be no reason to file Level 2 and 3 HSAR
appeals. Even if the Court accepted Ms. Rodriguez’s statement at face value, an inmate’s
mistaken belief that [s]he has exhausted h[er] administrative remedies, even where that belief
seems reasonable, does not make the administrative remedy unavailable.” Kearney v. Gebo, No.
915CV253MADDJS, 2017 WL 61951, at *2 n.1 (N.D.N.Y. Jan. 4, 2017), aff’d, 713 F.App’x 39
(2d Cir. 2017) (citing Ross, 136 S.Ct. at 1858).
Accordingly, Ms. Rodriguez has failed to show that an administrative remedy was
unavailable in order to overcome the Defendants’ affirmative defense of non-exhaustion, and
Defendants’ motion for summary judgment for failure to exhaust available administrative
remedies will be granted.
B. Eighth Amendment Medical Deliberate Indifference Claim
Because Ms. Rodriguez has failed to rebut the affirmative defense of failure to exhaust
her administrative remedies or otherwise provide evidence that the administrative remedies were
unavailable to her, summary judgment must be granted. See Riles, 656 F. App’x at 579
(affirming district court’s dismissal based on inmate’s failure to exhaust, under Administrative
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Directive 9.6, his excessive force claim against correctional staff). And this Court need not reach
the merits of Ms. Rodriguez’s claim or Defendants’ defense to it. See, e.g., Feaster v. U.S.
Bureau of Prisons, 37 F. App’x 15, 17 (2d Cir. 2002) (declining to reach question of qualified
immunity on unexhausted claim); Taylor v. Halladay, No. 9:09-CV-0385, 2010 WL 3120036, at
*9 (N.D.N.Y. July 1, 2010) (declining to reach qualified immunity defense on unexhausted
claim); Scott v. Uhler, 9:16-CV-403 (TJM/CFH), 2019 WL 5197139, at *6 n. 10 (N.D.N.Y. July
31, 2019) (“As the undersigned concludes that [the] plaintiff has failed to exhaust his
administrative remedies prior to commencing suit or that administrative remedies were
unavailable to him, the undersigned declines to reach the merits of the plaintiff’s [Fourteenth
Amendment] claims.”); Oliver v. Outhouse, No. 9:06-CV-1412 (LEK/RFT), 2008 WL 508909,
at *5 (N.D.N.Y. Feb. 21, 2008) (“Because we find that [the p]laintiff failed to exhaust his
administrative remedies, we need not address the merits of his Eight Amendment claim nor the
defenses proffered in response.”).
This Court nevertheless alternatively reviews Ms. Rodriguez’s Eighth Amendment
medical deliberate indifference claim and determines that this claim would fail.
To state a plausible Eighth Amendment claim, an inmate must allege facts “showing the
offending official’s ‘deliberate indifference to [their] serious medical needs.’” Thomas v. Wolf,
832 F. App’x 90, 92 (2d Cir. 2020) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).
There are two elements to a claim for deliberate indifference to medical needs.
The first element is objective. The inmate must “show that [s]he was ‘actually deprived
of adequate medical care’ by an official's failure ‘to take reasonable measures in response to a
[sufficiently serious] medical condition.’” Id. (quoting Salahuddin v. Goord, 467 F.3d 263, 279-

17

80 (2d Cir. 2006) (internal quotation marks omitted)). Establishing an objectively serious
deprivation requires the court to make two separate inquiries.
First, the court must determine whether the inmate “was actually deprived of adequate
medical care.” Salahuddin, 467 F.3d at 279. The medical providers are only required to have
“act[ed] reasonably.” Id. The second inquiry requires the court to determine “whether the
inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine
how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or
will likely cause the prisoner.” Id. at 280. Thus, although the objective element sometimes is
referred to as the seriousness of the medical need, that is only one factor evaluated in
determining the seriousness of the deprivation of medical care. See id.
If the claim is for denial of any treatment, the court will consider “whether the inmate's
medical condition is sufficiently serious.” Id. A “sufficiently serious” deprivation can exist if the
plaintiff suffers from an urgent medical condition that can cause death, degeneration, or extreme
or chronic pain. See Brock v. Wright, 315 F.3d 158, 162–63 (2d Cir. 2003); Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). A medical condition may not initially be serious, but
may become serious because it is degenerative and, if left untreated or neglected for a long
period of time, will “result in further significant injury or the unnecessary and wanton infliction
of pain.” Harrison v. Barkley, 219 F.3d 132, 136–37 (2d Cir. 2000). The Second Circuit has
identified several factors that are “highly relevant” to the question of whether a medical
condition is sufficiently serious, including “an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment; the presence of a medical condition that
significantly affects the individual's daily activities; or the existence of chronic and substantial
pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
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If, however, the claim is for a delay in treatment, the court focuses on the challenged
delay rather than merely on the underlying medical condition to determine whether the alleged
deprivation is sufficiently serious. The court considers “the seriousness of the particular risk of
harm that resulted from ‘the challenged delay or interruption in treatment rather than the
prisoner’s underlying medical condition alone.’” Bellotto v. County of Orange, 248 Fed. App’x
232, 236 (2d Cir. 2007) (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)). “A
delay in treatment does not violate the constitution unless it involved an act or failure to act that
evinces a conscious disregard of a substantial risk of serious harm.” Rodriguez v. Doe, No. 3:22CV-763(MPS), 2023 WL 184253, at *3 (D. Conn. Jan. 13, 2023) (citations and internal
quotation marks omitted).
The second element is subjective. The inmate must show “that the official acted with a
culpable state of mind of ‘subjective recklessness,’ such that the official knew of and consciously
disregarded ‘an excessive risk to inmate health or safety.’” Wolf, 832 F. App’x at 92 (citations
omitted). Allegations constituting negligence or medical malpractice are insufficient to support
an Eighth Amendment deliberate indifference claim. Id. (citing Hathaway v. Coughlin, 99 F.3d
550, 553 (2d Cir. 1996)); see also Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (“To meet
the subjective element, the plaintiff must show that the defendant acted with ‘more than mere
negligence.’” (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994))). Thus, for a claim based
on delay of treatment, the inmate must show that the defendant “delayed care as a form of
punishment, ignored a life-threatening and fast-degenerating condition for several days, or
delayed major surgery.” Myrie v. Calvo, 615 F. Supp. 2d 246, 248 (S.D.N.Y. 2009) (citation
omitted); see also Stewart v. City of New York, No. 15-CV-4335, 2018 WL 1633819, at *8-9
(S.D.N.Y. Mar. 31, 2018) (dismissing deliberate indifference claim where plaintiff did not allege
19

that the defendant “acted intentionally to delay the provision of medical treatment in a way that
subjected [the plaintiff] to an excessive risk of harm”); Bell v. Jendell, 980 F. Supp. 2d 555, 562
(S.D.N.Y. 2013) (allegation of delay in provision of medical treatment without allegation that
delay was intentional or reckless is insufficient to support Eighth Amendment deliberate
indifference claim) (collecting cases).
Drs. Machinski and Pillai argue that Ms. Rodriguez’s medical indifference claims fail
because: (1) Ms. Rodriguez’s delayed notification of her positive test for Hepatitis C did not rise
to the level of a serious medical need; (2) Ms. Rodriguez cannot show that she was deprived of
adequate medical care; and (3) Ms. Rodriguez cannot show that Drs. Machinski and Pillai
intentionally deprived her of medical care. 4 See Mot. at 15–21.
First, Drs. Machinski and Pillai argue that while Ms. Rodriguez was “unfortunately” not
told about her positive test result for Hepatitis C until a year later, because she was eventually
successfully cured of Hepatitis C and her liver function returned to normal, the issue here does
not rise to the level of a serious medical need. See id. at 17–19.
Second, Drs. Machinski and Pillai argue that Ms. Rodriguez cannot show that she was
denied medical care because she was eventually adequately treated and has not shown that she
suffered any symptoms from Hepatitis C before she was treated. See id. at 19–20.
Third, Drs. Machinski and Pillai argue that they were unaware of Ms. Rodriguez’s
positive test result until April 2022, and that unawareness was at most done with negligence, not

4

Drs. Machinski and Pillai also argue that they are entitled to qualified immunity, but the Court
does not need to and thus does not address those arguments here. See Mot.; see, e.g., Feaster v.
U.S. Bureau of Prisons, 37 F. App’x 15, 17 (2d Cir. 2002) (declining to reach question of
qualified immunity on unexhausted claim); Taylor v. Halladay, No. 9:09-CV-0385, 2010 WL
3120036, at *9 (N.D.N.Y. July 1, 2010) (declining to reach qualified immunity defense on
unexhausted claim).
20

purposefulness or reckless disregard which would be needed to prove deliberate indifference. Id.
at 20–21.
Ms. Rodriguez argues in response that: (1) the Hepatitis C diagnosis did pose an
unreasonable risk of serious damage to her health; (2) Drs. Machinski and Pillai were or should
have been aware of the positive Hepatitis C test result when it first occurred in 2021; and (3) Drs.
Machinski and Pillai were deliberately indifferent because any reasonable person would have
known how harmful leaving Hepatitis C untreated was. See Obj. at 8–10.
First, Ms. Rodriguez argues that Hepatitis C did pose an unreasonable risk of serious
damage to her health because Hepatitis C could cause damage to the liver, serious health
problems and death according to the Center for Disease Control. See id. at 8.
Second, Ms. Rodriguez argues that Dr. Machinski was or should have been aware of the
of the April 2021 positive Hepatitis C test result because she (1) signed for Ms. Rodriguez’s
bloodwork, and (2) said that Ms. Rodriguez’s bloodwork was fine even when Ms. Rodriguez was
complaining about “fatigue, lower back pain, swollen and painful hands and feet and difficulty
concentrating and paying attention.” Id. at 9. Ms. Rodriguez also argues that Dr. Pillai was or
should have been aware because she was the infectious disease doctor who should be aware of
the results of all bloodwork including the April 2021 results. Id.
Finally, Ms. Rodriguez argues that Drs. Machinski and Pillai were deliberately indifferent
to her serious medical needs because Hepatitis C is a serious medical condition if left untreated
and any reasonable person would know that leaving it untreated was detrimental to her health. Id.
at 10.
The Court agrees with Ms. Rodriguez that the delay in treatment for her Hepatitis C
diagnosis was a denial of a serious medical need, but agrees with Drs. Machinski and Pillai that
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they were not deliberately indifferent to Ms. Rodriguez’s serious medical needs because their
unawareness of Ms. Rodriguez’s positive test result was not purposeful or with reckless
disregard.
To satisfy the first prong in an Eighth Amendment medical deliberate indifference claim,
an inmate must show that medical providers acted unreasonably such that they were actually
deprived of medical care that caused or likely will cause harm to the prisoner. Salahuddin, 467
F.3d at 279–280 (“The first requirement is objective: the alleged deprivation of adequate medical
care must be sufficiently serious. . . . The first inquiry is whether the prisoner was actually
deprived of adequate medical care. As the Supreme Court has noted, the prison official’s duty is
only to provide reasonable care. . . . Second, the objective test asks whether the inadequacy in
medical care is sufficiently serious. This inquiry requires the court to examine how the offending
conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the
prisoner.”). A delay rather than a denial of treatment will not violate the constitution unless it
involved an act or failure to act that evinces “a conscious disregard of a substantial risk of
serious harm.” Rodriguez, 2023 WL 184253, at *3 (citations and internal quotation marks
omitted).
“It is well-established that Hepatitis C is sufficiently serious to satisfy the objective prong
of the test for deliberate indifference.” Parks v. Blanchette, 144 F. Supp. 3d 282, 314 (D. Conn.
2015) (citing Hilton v. Wright, 928 F.Supp.2d 530, 547–48 (N.D.N.Y.2013) (noting that it is
“well-established that HCV is a serious medical condition.”) (citing Hatzfeld v. Eagen, No. 9:08–
cv–283, 2010 WL 5579883, at *10 (N.D.N.Y. Dec. 10, 2010) (collecting cases))). Thus, Ms.
Rodriguez’s delay in Hepatitis C satisfies the first prong of a deliberate indifference claim.

22

To satisfy the second prong and succeed on showing a claim of deliberate indifference,
an inmate must show “that the official acted with a culpable state of mind of ‘subjective
recklessness’ such that the official knew of and consciously disregarded ‘an excessive risk to
inmate health or safety.’” Wolf, 832 F. App’x at 92 (citations omitted). This is where Ms.
Rodriguez’s claim falls short.
While Drs. Machinski and Pillai perhaps should have been aware of the first positive
Hepatitis C test results in April 2021 because they dealt with Ms. Rodriguez’s bloodwork, there
is no evidence in this record that this failure to notice the April 2021 test result was done with
any intention. 5 A failure occurring out of negligence without some showing of intention is not
enough to show deliberate indifference. See Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017)
(for deliberate indifference claims, “[a] detainee must prove that an official acted intentionally or
recklessly, and not merely negligently”); Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir.
2020) (“The deliberate-indifference standard ‘require[es] a showing that the official was
subjectively aware of the risk[.]’”) (citing Farmer v. Brennan, 511 U.S. 825, 829 (1994));
Singletary v. Russo, 377 F. Supp. 3d 175, 193 (E.D.N.Y. 2019) (granting summary judgment for
a doctor defendant who was not actually aware of a clerical error that caused harm); Parks v.
Blanchette, 144 F. Supp. 3d 282, 317 (D. Conn. 2015) (granting summary judgement for a doctor

5

Based on this record, the April 2021 test result had not been added to Ms. Rodriguez’s
flowchart. See Declaration of Trisha Machinski, MD at ¶ 7, ECF No. 24-9 (“Upon review of the
Plaintiff’s records, it appears the lab results were returned with a positive Hepatitis C result in
April 2021, but were not added to the flow chart timely.”). And, at the November 20, 2024
motion hearing, counsel for Drs. Machinski and Pillai further represented that the nursing staff,
not either Dr. Machinski or Dr. Pillai, had responsibility for adding the test result to the
flowchart. Since this incident, however, the DOC has updated their procedure for positive
Hepatitis C cases so that “all lab results with a positive finding [are] sent to a single liaison, who
compiles such data and ensures timely notification and treatment.” Mot at 18.
23

defendant who did not know or disregard that withholding treatment would subject the plaintiff
to excessive risk of harm).
Accordingly, despite the delay in treatment for Hepatitis C being a serious medical need,
without some showing of intentionality in that delay, Ms. Rodriguez’s deliberate indifference
claims fails to show a genuine dispute of material fact sufficient to survive the motion for
summary judgment, and Defendants’ motion for summary judgment as to the Eighth
Amendment deliberate indifference claim would be granted, even if Ms. Rodriguez had
exhausted her administrative remedies.
IV.

CONCLUSION
Because there is no genuine issue of material fact regarding Ms. Rodriguez’s failure to

exhaust her administrative remedies, and Ms. Rodriguez deliberate indifference claim also fails,
the Court GRANTS the Defendants’ Motion for Summary Judgment, ECF No. 24, and
DISMISSES Ms. Rodriguez’s Complaint, ECF No. 1, with prejudice.
The Clerk of Court is respectfully directed to enter judgment and close this case.
SO ORDERED at New Haven, Connecticut, this 22nd day of November, 2024.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

24