United States District Court, D. Connecticut
RULING GRANTING DEFENDANTS' MOTION FOR SUMMARY
Jeffrey Alker Meyer United States District Judge.
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
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
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
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.
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.
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
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)).
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).
Indifference to Serious Medical Need
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).
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