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Cabassa v. Ostheimer

United States District Court, D. Connecticut

June 27, 2017

FRANCISCO CABASSA, Plaintiff,
v.
JOHN OSTHEIMER, et al., Defendants.

          RULING GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Francisco Cabassa is a prisoner in the custody of the Connecticut Department of Correction (DOC). One day he broke his ankle while playing basketball, and he believes that numerous DOC officials thereafter neglected his medical needs. He has commenced this pro se action against defendants Nurse John Ostheimer, Nurse Cindy Letavec, Sharon Brown, Warden Scott Erfe, former DOC Commissioner Scott Semple, and Dr. Carson Wright. For the reasons that follow, I will grant defendants' unopposed motion for summary judgment.

         Background

         On the morning of September 19, 2015, plaintiff injured his ankle during a basketball game while he was incarcerated at Cheshire Correctional Institution. Plaintiff's ankle was discolored, slightly swollen, and warm to the touch. Plaintiff was treated in the medical unit at 9:00 a.m. Defendant Ostheimer contacted defendant Wright, the on-call doctor, who ordered rest, ice, compression, and elevation; Motrin three times per day for seven days; crutches; an Ace wrap; and a bottom bunk pass for the bottom tier for seven days

         Plaintiff states that, although he was immediately brought to the medical unit, he was left in the waiting area until 12:45 p.m., at which time Ostheimer told him how his injury would be treated without examining him. Medical records show that 200 mg Motrin was issued to plaintiff on September 19, 2015 only. Although 800 mg Motrin was prescribed for pain management, plaintiff claims that he did not receive this medication. Plaintiff also states that he never received the Ace bandage.

         Medical records indicate that, on September 21, 2015, plaintiff returned the crutches, stating that he was able to bear weight on his ankle. Plaintiff complained the next day of pain and was taken to the University of Connecticut Health Center. X-rays taken on September 22, 2015, showed a fracture, and a fiberglass cast was applied.

         Plaintiff was seen in the facility medical unit on September 24, 26, 27 and 29, 2015. He returned to the University of Connecticut Health Center for a follow-up visit on October 9, 2015. X-rays taken at that time showed that the ankle was healing. No acute fractures were identified.

         Plaintiff did not properly file any inmate grievances from September 1, 2015, until November 30, 2015. A grievance he submitted on October 13, 2015, was returned to him without disposition for failing to demonstrate that he first attempted to resolve the issue informally with staff. Rather than correcting the deficiency, plaintiff filed grievance appeals. The appeals were returned without disposition for failing to comply with procedures.

         Discussion

         The principles governing a motion for summary judgment are well established. Summary judgment may be granted only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of material fact ‘exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party's favor.'” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). The evidence adduced at the summary judgment stage must be viewed in the light most favorable to the non-moving party and with all ambiguities and reasonable inferences drawn against the moving party. See, e.g., Tolan, 134 S.Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). All in all, “a ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan, 134 S.Ct. at 1866 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

         Plaintiff has not filed any objection or opposition to defendants' motion for summary judgment. In Jackson v. Federal Express, 766 F.3d 189 (2d Cir. 2014), the Second Circuit instructed that “when a party, whether pro se or counseled, fails to respond to an opponent's motion for summary judgment, a district court may not enter a default judgment, ” but “must examine the movant's statement of undisputed facts and the proffered record support and determine whether the movant is entitled to summary judgment.” Id. at 197. Here, because plaintiff has filed a verified complaint, the Court will consider the allegations of plaintiff's complaint as akin to an affidavit submitted by plaintiff in opposition to summary judgment. See, e.g., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

         Deliberate Indifference to Serious Medical Need

         Plaintiff contends that defendants were deliberately indifferent to his serious medical need. It is well established that “[a] prison official's ‘deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). A deliberate indifference claim has two elements. The first element is objective: the alleged deprivation must be serious. The second requirement is subjective: the charged officials must act with a subjectively reckless state of mind in their denial of medical care. See Spavone v. New York State Dept. of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013); Hilton v. Wright, 673 F.3d 120, 127 (2d Cir. 2012). If a plaintiff does not allege that a defendant acted purposefully or maliciously to harm him, then a plaintiff must at the least allege that a defendant has acted with deliberate indifference-that is, with awareness that plaintiff would suffer serious harm as a result of the defendant's actions or inactions. See Salahuddin v. Goord, 467 F.3d 262, 279-80 (2d Cir. 2006). By contrast, allegations of ordinary medical malpractice or negligence do not allege deliberate indifference of a constitutional magnitude and do not suffice to allege a cognizable claim for a violation of the Eighth Amendment. Ibid.; see also Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011).

         Because plaintiff's ankle was eventually treated and there is no claim of ongoing injury, the focus of plaintiff's claim appears to be that his Eighth Amendment rights were violated because he was not treated more quickly for his ankle injury than he should have been. For example, he challenges the three-day delay in obtaining an x-ray and proper diagnosis and treatment for his fractured ankle. But other courts have rightly rejected this type of argument that a similar delay in treating a sports injury may be a sufficient predicate for an Eighth Amendment claim. See Chatin v. Artuz, 28 Fed.Appx. 9, 10 (2d Cir. 2001) (ankle injury from prison soccer game involving a “sprained ankle, a bone spur, and a neuroma, did not rise to the level of seriousness that the Eighth Amendment requires” and fact that “official waited two days before taking [plaintiff] to the hospital for x-rays” did not “rise[] to the level of deliberate indifference to [plaintiff's] serious medical needs”); Patterson v. Westchester County, 2014 WL 1407709, at *7 (S.D.N.Y.) (ankle injury from ...


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