United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION FOR
LEAVE TO AMEND AMENDED COMPLAINT [DKTS. 45 & 52]
Vanessa L. Bryant United States District Judge
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
Relevant Procedural History
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.)].
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)].
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)].
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.
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
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.
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].
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].
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 of hand, wrist, & elbow.
R ear outer aspect ½” round superficial
Carter's Experience While Housed in the RHU
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
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
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.
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
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
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.
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.
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.
Medical Treatment for Carter's Injury
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
47 (Defs.' Ex. E, Sealed), at 145]. 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].
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].
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].
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:
[Dkt. 47, at 112-13 (emphasis added)]. The orthopedics
specialist recommended a ___ Id. at 113.
Carter's Experience Post-Treatment
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