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Carter v. Revine

United States District Court, D. Connecticut

May 15, 2017

DR. REVINE, et al., Defendant.


          Hon. Vanessa L. Bryant United States District Judge

         Plaintiff Shaquon Carter (“Carter”), an individual incarcerated by the Connecticut Department of Correction (“DOC”), seeks monetary damages for purported Eighth Amendment violations relating to Defendants' failure to facilitate and provide him with medical treatment of his fractured thumb while he was located in the Restrictive Housing Unit (“RHU”) for twelve days. The current named Defendants are Dr. Revine, Captain James Watson (“Watson”), Deputy Warden Denise Walker (“Walker”), Lieutenant Julie Stewart (“Stewart”), Captain Edward Guzman (“Guzman”), Lieutenant Mauvinchi, Lieutenant Scott Hadlock (“Hadlock”), and Jane Does 1-7 (collectively, “Defendants”). Presently before the Court are Defendants' Motion for Summary Judgment and Plaintiff's Motion to Amend the Second Amended Complaint contingent upon the Court's summary judgment ruling. For the reasons stated herein, the Court DENIES in part and GRANTS in part Defendants' Motion for Summary Judgment and GRANTS Plaintiff's Motion to Amend the Second Amended Complaint.


         I. Relevant Procedural History

         Carter filed his initial Complaint pro se on October 20, 2014, bringing claims of lost property, excessive force, deliberate indifference to personal safety, and deliberate indifference to serious medical needs. [See Dkt. 1 (Compl.)]. On October 2, 2015, counsel entered an appearance on Carter's behalf. [See Dkt. 9 (Pignatiello Notice of Appearance)]. Four days later, the Court entered its Initial Review Order allowing claims against Defendants Revine, Watson, Walker, and Guzman to proceed and granting leave to amend the complaint to plausibly allege claims for deprivation of property, excessive force, and deliberate indifference to his safety; identify how the remaining two Defendants acted with deliberate indifference to his serious medical needs; and name any new Defendants who also may have been involved by who are not specifically named in the caption. [See Dkt. 12 (Initial Review Order), at 1]. Counsel timely filed the Amended Complaint on November 9, 2015. [See Dkt. 17 (Am. Compl.)].

         On January 15, 2016, Defendants filed a Motion to Dismiss the Amended Complaint in part, pursuant to Fed.R.Civ.P. 16(b)(1) and 12(b)(6). [See Dkt. 26-1 (Mot. Dismiss)]. Upon direction by the Court, Defendants re-filed the Motion to Dismiss to comport with the Court's Chambers Practices. [See Dkt. 28 (Order); Dkt. 29 (Am. Mot. Dismiss)]. Specifically, Defendants argued (1) the Court lacked subject matter jurisdiction over all claims brought against Defendants in their official capacities; and (2) the Amended Complaint failed to state a claim for (a) intentional infliction of emotional distress against all Defendants, and (b) deliberate indifference to a serious medical need against Dr. Revine. Id. at 2. Defendants did not challenge Carter's claim for money damages alleging deliberate indifference to serious medical needs against Defendants Watson, Walker, Guzman, Stewart, Mauvinchi, Hadlock, and Jane Does 1-7. Id. at 4. On February 9, 2016, the Court granted in part and denied in part the Amended Motion to Dismiss, dismissing only the claims against Defendants in their official capacities. [See Dkt. 31 (Order)].

         By leave of the Court, Carter amended his complaint a second time on February 24, 2016, to remove the claims against Defendants in their official capacities. [See Dkt. 36 (Second Am. Compl.)]. This Second Amended Complaint is now the operative complaint and names as Defendants Revine, Watson, Walker, Guzman, Stewart, Mauvinchi, Hadlock, and Jane Does 1-7 in their official capacities only. Defendants filed the Answer on March 8, 2016. [See Dkt. 38 (Answer)].

         In compliance with the Court's operative Scheduling Order, [Dkt. 43 (Am. Scheduling Order)], Defendants filed the Motion for Summary Judgment on October 3, 2016. [Dkt. 45-1 (Mot. Summ. J.)]. First, Defendants argue that summary judgment should be granted as to Jane Does 1-7 because Carter never submitted a discovery request for their identities. Id. at 6. Second, Defendants argue summary judgment should be granted as to Dr. Revine and Lt. Mauvinchi because there is no record of their employment and they have not been served. Id. at 6-7. Third, Defendants argue summary judgment is warranted as to all other Defendants because Carter failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act and Administrative Directives 8.9 and 9.6. See Id. at 7-9. Carter filed his Objection to the Motion for Summary Judgment on November 3, 2016. [Dkt. 51-1 (Opp'n Mot. Dismiss)].

         On the same day Carter also filed a Motion to Amend the Amended Complaint contingent upon the Court denying Defendant's Motion for Summary Judgment. See id.; Dkt. 52 (Second Mot. Amend)]. Specifically, Carter requests leave to amend the Second Amended Complaint to correctly identify three Defendants and make the following changes: (1) Dr. Revine to Dr. Ruez, (2) Lt. Mauvinchi to Lt. Matuszczak, and (3) Jane Doe 1 to Cheryl Estrom. [Dkt. 52, at 1-2]. Carter also requests leave to remove Jane Does 2-7. Id. at 2.

         Both the Motion for Summary Judgment and the Motion for Leave to Amend the Amended Complaint are now fully briefed. Below the Court first addresses the Motion for Summary Judgment as the Motion for Leave to Amend is dependent upon its outcome.

         II. Facts

         On October 20, 2005, Carter was admitted to Manson Youth Center under the custody of the Department of Correction. [Dkt. 45-2 (Local Rule 56(a)(1) Stmt., ¶ 1; Dkt. 51-2 (Local Rule 56(a)(2) Stmt.), ¶ 1]. From 2005 to 2011, on multiple occasions Carter has been discharged, readmitted, and transferred among different correctional institutions. [Dkt. 45-2, ¶ 2; Dkt. 51-2, ¶ 2]. Since March 13, 2012, the DOC has transferred Carter to different correctional institutions a total of 12 times. [Dkt. 45-2, ¶ 3; Dkt. 51-2, ¶ 3]. Carter attended an Inmate Orientation upon each new transfer wherein he received information about certain administrative remedies and obtained the Inmate Handbook. [See Dkt. 45-2, ¶¶ 4-6; Dkt. 51-2, ¶¶ 4-6]. Carter acknowledges the Inmate Handbook explains inmate grievance procedures. [See Dkt. 45-4 (Defs.' Ex. B, Carter Dep.), at 12:19-21]. Carter filed inmate grievances prior to 2014. [Dkt. 45-2, ¶ 7; Dkt. 51-2, ¶ 7].

         The DOC transferred Carter from MacDougall-Walker Correctional Institution (“MacDougall-Walker”) to Cheshire Correctional Institution (“Cheshire”) on February 18, 2014. [Dkt. 45-3 (Deveau Aff.), at 63]. A few weeks later on March 6, 2014, Carter became involved in a physical altercation with another inmate. [Dkt. 45-2, ¶ 8; Dkt. 51-2, ¶ 8]. That same day Carter pleaded guilty to fighting and as a result was placed in punitive segregation in the Restrictive Housing Unit (“RHU”) for twelve days until March 18, 2014. [Dkt. 45-4, at 14:14-15:2; see Dkt. 45-3, at 72].

         Upon Carter's arrival in the RHU, a woman identified by the Defendants as Nurse Cheryl Estrom visited his cell, which is captured on video. [Dkt. 45-2, ¶ 13; Dkt. 51-2, ¶ 13]. The video indicates Estrom's visit and examination of Carter for injuries lasted under two minutes. [Dkt. 51-5 (Pl.'s Ex. C, Code Blue Video), at 11:19-end]. Estrom asked Carter to show her his injuries through the hole in the door. Carter presented his left hand and forearm up to his elbow through the hole. Id. at 11:50-56. Carter verbally stated his “left arm” was injured but also indicated through physical gesture that he was injured in his hand and wrist region. Id. at 12:05-12:13. After making this gesture, Estrom asked him to make a fist with his left hand. Id. at 12:14. Carter loosely bent his four fingers into his palm but did not bend his thumb, which remained straight. Id. at 12:14-23. Estrom did not ask Carter if he was able to make a fist or to bend his thumb. Id. During this evaluation Estrom looked at but did not palpate Carter's left arm, hand, or wrist. She asked to see “the other arm, ” but did not ask him to make a fist with his right hand. Id. at 12:16-22. Again, Estrom looked at but did not palpate his “other arm.” She subsequently completed a Medical Incident Report (Form CN 6602). [Dkt. 45-5 (Defs.' Ex. C, Incident Report), at 39]. Under the “Injury description” box, Estrom wrote in relevant part, “My L arm hurts.” Id. She wrote under “Observations/remarks, ” “Wrists neg. L arm no abrasions or contusions. Full ROM[1] of hand, wrist, & elbow. R ear outer aspect ½” round superficial abrasion.” Id.

         A. Carter's Experience While Housed in the RHU

         On July 20, 2016, Carter submitted to a deposition by Defendants' counsel in which Plaintiff's counsel did not ask any questions. [Dkt. No. 45-4]. He testified that every single day between March 6, 2014, and March 18, 2014, he told members of the medical staff and correctional officers he had an injury. Id. at 16:11-23. Specifically, Carter testified that he told correctional officers Watson, id. at 25:7-11, Walker, id. at 26:4-10, Guzman, id. at 26:13-20, Stewart, id. at 26:22-27:9, and Mauvinchi, id. at 12-18, about his injury.

         Carter also testified that he filed grievances at Cheshire, stating specifically, “[T]here was at least three at Cheshire Correctional because I had to follow the chain of command, so I can't just file the grievances, and I wasn't there long enough to do enough of them.” Id. at 28:19-29:2. Carter did not testify to the date on which he filed these grievances, to whom they were addressed, the type of grievance he filed, or in which box the grievances were placed. Nor did he offer into evidence the receipt or response to any grievance. He only claims to have handed a written medical request to Stewart to “put it in the box for medical, ” id. at 26:22-27:1, but otherwise there is no information on the record about exactly how any of the alleged grievances were filed.[2]

         Regarding the content, Carter testified that he filed three grievances. First, he claims he filed a grievance claiming he showed an unidentified nurse his injury, told her he was in pain, requested medical treatment, but was not treated. Id. at 18:9-14. He testified that he did not receive a response and that he did not appeal the nonresponse because he did not know that he could. Id. at 18:15-19. He also testified that he received Inmate Handbooks and orientations describing the grievance process at each facility to which he had been transferred. Id. at 10:13-18. Second, he testified that he filed a grievance claiming he informed medical staff that he injured his thumb or hand, but they did not help him. Id. at 16:25-17:3. Third, he claims that he told Captain Watson, other correctional officers, or the Deputy Warden that he was in pain due to his thumb injury but the correctional officer failed to get him medical assistance. Id. at 19:25-20:6. Carter testified that he did not receive a response to this grievance and did not file an appeal. Id. at 20:7-11.

         Carter also testified that he never filed a grievance claiming that he asked a correction officer to contact the medical department for him but that his request was ignored. Id. at 21:4-8. He admitted that he never filed a grievance claiming he told Ms. Mathews from mental health his thumb was injured and he needed medical attention, but she failed to procure such assistance. Id. at 21:22-22:2.

         Three months after his deposition on October 21, 2016, Carter signed and submitted an affidavit addressing the time period he spent in the RHU, which contradicts some aspects of his deposition testimony. In it Carter avers facts not included in his deposition testimony. [See Dkt. 51-6 (Pl.'s Ex. D, Carter Aff.)]. He states that between March 6, 2014, and March 17, 2014, he wrote six Inmate Request Forms (“CN 9601 Forms”) requesting medical treatment and that he gave them to Mulligan, Deko, and other available employees because he did not have access to the boxes to personally submit them. Id. ¶ 6. He believes the RHU protocol requires all paperwork to be left on Watson's desk for submission by him. Id. ¶ 7. Carter's declaration does not state the reason he did not have access to the grievance deposit box or the provision of the Inmate Handbook of other DOC pronouncement which led him to believe he could file a grievance by leaving it on Watson's desk. Administrative Directive 9.6, Inmate Administrative Remedies, (“Directive 9.6”) instead requires all grievances to be “submitted by depositing them in a locked box clearly marked as ‘Administrative Remedies'” and that “[t]he Unit Administrator shall ensure that an adequate number of collection boxes are accessible within the facility.” [See Dkt. 45-13 (Defs.' Ex. J, Administrative Directive 9.6), § 5(C)]. Directive 9.6 also provides that “[a]ny inmate who needs assistance in using the Inmate Administrative Remedies Process shall receive assistance upon request.” Id. at § 5(B)(1).

         Carter's affidavit further states that he learned on March 12, 2014, that no medical requests had been submitted on his behalf. Id. ¶ 8. On March 17, 2014, he submitted an Inmate Administrative Remedy Form (“CN 9602 Form”) as a “written grievance in reference to the lack of response to my requests for medical” and that he handed the form to Deko. Id. ¶ 10. He wrote a supplemental letter to Walker about the lack of medical care and also handed it to Deko, although he received no response. Id.

         Carter offers a statement purportedly authored by Inmate William Jones. [Dkt. 51-11 (Pl.'s Ex. I, Jones Statement)]. The statement is signed but undated and states, “I am writing this statement on my own free will. I attest that nobody forced me to write this statement. I attest that the facts of this statement are true as I remember.” Id. The statement is neither sworn nor made under penalty of perjury. On a motion for summary judgment the Court may accept only evidence admissible under the rules of Evidence. Fed.R.Civ.P. 56(c); see Raskin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997); Welch-Rubin v. Sandals Corp., No. 3:03CV481 (MRK), 2004 WL 2472280, at *1-2 (D. Conn. Oct. 20, 2004) (admitting affidavits); see also Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988) (finding declaration did not properly lay foundation for testimonial document when it merely claimed to the document was a “[t]rue and correct cop[y]”). Rule 56(c) expressly permits the Court to consider affidavits or declarations. Fed.R.Civ.P. 56(c). When, under any United States law or any other rule such as the Federal Rules of Evidence, a matter is required to be supported by a sworn declaration or an affidavit, the matter alternatively may be proven by the unsworn declaration or statement, subscribed by the maker as “true under penalty of perjury, ” provided that it is dated and signed and contains substantially the following language: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).” 28 U.S.C. § 1746. This provision “allows a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.” Fed.R.Civ.P. 56(c) advisory committee's note to 2010 amendment.

         Both Carter's affidavit and Jones's statement were submitted through Carter's attorney. Unlike Carter's affidavit, Jones's statement is inadmissible as it does not substantially comply with 28 U.S.C. § 1746. Compare Reynolds v. Sealift, Inc., 311 F. App'x 422, 245 (2d Cir. 2009) (upholding district court's decision to exclude four unsworn affidavits lacking a precise date) to LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (acknowledging the letter “substantially complied” when it was signed, dated, and stated, “Under penalty of perjury, I make the statements contained herein”); Monahan v. NRA Grp. L.L.C., No. 3:10-CV-00638 (JCH), 2011 WL 3901877, at *2 n.5 (D. Conn. Sept. 6, 2011) (excluding “affidavit” that was not dated, notorized, or signed under penalty of perjury as it did not meet requirements for sworn affidavit or unsworn declaration). The Court presumes Plaintiff's counsel knows the difference between the two and submitted the most persuasive material in opposition to summary judgment that he had available. Accordingly, the Court finds that it would be futile to withhold its decision on summary judgment to afford counsel an opportunity to obtain an affidavit or declaration.

         B. Medical Treatment for Carter's Injury

         The clinical record indicates medical staff attended to Carter on March 14, 2014, eight days after he entered the RHU and was examined by Estrom. There is nothing in the record explaining what prompted this examination. The record states the following:

         (Image Omitted)

         [Dkt. 47 (Defs.' Ex. E, Sealed), at 145].[3] The only written record in evidence of any medical request during his time in the RHU is his request for a mental health consultation documented on March 10, 2014, which does not reference his swollen left thumb or hand. [See Dkt. 45-2, ¶ 15; Dkt. 51-2, ¶ 15].

         Carter's hand was first examined by a physician on March 18, 2014. On that date he was examined by Dr. Ruez who ordered X-rays, wrapped Carter's left hand in an ACE bandage, and prescribed Motrin for pain. [Dkt. 45-2, ¶ 16; Dkt. 51-2, ¶ 16]. The X-ray results indicated a fracture on the base of the first metacarpal of his left hand. [Dkt. 45-2, ¶ 17; Dkt. 51-2, ¶ 17].

         On March 19, 2014, the DOC transferred Carter from Cheshire to Corrigan-Radgowski Correctional Center (“Corrigan-Radgowski”). [Dkt. 45-2, ¶ 17; Dkt. 51- 2, ¶ 17]. One week later on March 26, 2014, the URC reviewed and approved of a request for Carter to receive an expedited orthopedic evaluation of his left hand.4 [Dkt. 47, at 111]. The URC review form contains a clinician signature and Carter's signature dated April 3, 2014, acknowledging the following: “URC Decision to be Reviewed by Facility MD and Discussed with Inmate Before Filling.” Id. These signatures indicate that nearly a month after his first complaint, on April 3, 2014, the URC approved the request for Carter to be examined by an orthopedics specialist. [See Dkt. 45-2, ¶ 19; Dkt. 51-2, ¶ 19].

         More than one week after the URC approval and five weeks after his initial complaint, on April 11, 2014, orthopedics specialist, examined Carter's left hand. [Dkt. 45-2, ¶ 20; Dkt. 51-2, ¶ 20]. He made the following assessment:

(Image Omitted)

[Dkt. 47, at 112-13 (emphasis added)]. The orthopedics specialist recommended a ___ Id. at 113.

         C. Carter's Experience Post-Treatment

         Carter testified that in addition to the grievances filed at Cheshire, he also filed two grievances at Corrigan-Radgowski to address his persistent pain and receive different and more effective pain medication. [Dkt. 45-2, ¶ 25; Dkt. 51-2, ¶ 25]. The record contains an CN 9601 Form submitted to “Grievance Coordinator” on September 4, 2014, wherein he stated, “I have filed Grievances in Corrigan and in Cheshire for any property being missing by (CO. Viera - Cheshire) and on medical in Cheshire because of my thumb being broken but because they (Cheshire) didn't do anything to fix or help me with the pain for 11 days. Can you let me know if they are being processed?” [Dkt. 51-13 (Pl.'s Ex. K, Inmate Request Form 9/4/14), at 2]. Staff King responded, “You must write to that facility. If you got a receipt for Corrigan I could check on that.” Id. On September 10, 2014, Carter filed another CN 9601 Form with Cheshire stating, “(I have sent a letter) and now I am waiting on a request to see if my ...

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