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Braham v. Perelmuter

United States District Court, D. Connecticut

July 28, 2017

MICHAEL BRAHAM, Plaintiff,
v.
BRIAN PERELMUTER, Defendants.

          RULING RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 137) I. INTRODUCTION

          Janet C. Hall United States District Judge

         Plaintiff Michael Braham (“Braham”) is currently incarcerated at Cheshire Correctional Institution, in Cheshire, Connecticut (“Cheshire”). Defs.' Local Rule 56(a)(1) Statement of Material Facts in Supp. of Summ. J. (“Defs.' L.R. 56(a)1”) (Doc. No. 137-2) at 2 ¶ 5; Pl.'s Local Rule 56(a)(2) Statement (“Pl.'s L.R. 56(a)2”) (Doc. No. 157) at 1 ¶ 5.[1] He initiated this action by filing a pro se Complaint, pursuant to section 1983 of title 42 of the United States Code, against Dr. Brian Perelmuter (“Dr. Perelmuter”), Dr. Johnny Wu (“Dr. Wu”), Commissioner Scott Semple (“Commissioner Semple”), and John Doe. See Compl. (Doc. No. 1) at 1. On July 22, 2015, the court dismissed the claims for money damages against all defendants in their official capacities and all claims against Dr. Wu and Commissioner Semple in their individual capacities. See Initial Review Order (Doc. No. 6) at 5. The court concluded that the Eighth Amendment claims against Dr. Perelmuter and defendant Doe in their individual capacities for money damages and in their official capacities for injunctive relief, as well as the claims for injunctive relief against Dr. Wu and Commissioner Semple in their official capacities, would proceed. See id.

         On March 16, 2016, the court granted Braham leave to file an amended complaint to add Health Services Administrator Brown (“Health Administrator Brown”) as a defendant in her individual capacity and to add a new claim against Dr. Perelmuter in his individual capacity, regarding his alleged retaliatory refusal to provide treatment to Braham after Braham's teeth were extracted on August 14, 2015. See Ruling & Order (Doc. No. 86) at 14-15. The court also informed Braham that, if he sought to proceed against the John/Jane Doe defendant nurse, he must identify the Doe defendant by name on or before April 30, 2016. See id. at 15. On March 29, 2016, Braham filed an Amended Complaint against Dr. Perelmuter, Dr. Wu, Commissioner Semple, Health Administrator Brown, and Nurse John/Jane Doe. See Am. Compl. with Jury Trial Demand (Doc. No. 92) at 1. On April 18, 2016, Braham filed a Second Amended Complaint that identified the John/Jane Doe defendant as Nurse Sue O'Loughlin[2](“Nurse O'Loughlin”); the Second Amended Complaint once again also named Dr. Perelmuter, Dr. Wu, Commissioner Semple, and Health Administrator Brown as defendants. See Second Am. Compl. with Jury Trial Demand (“SAC”) (Doc. No. 98) at 1.

         In September 2016, Braham moved for leave to file a third amended complaint to add five new defendants, new allegations against Commissioner Semple and Dr. Wu, and various new factual allegations. See generally Mot. for Leave to File Am. Compl. with Jury Trial Demand (Doc. No. 130). On November 23, 2016, the court denied that Motion. See generally Ruling on Mot. for Leave to File Am. Compl. (Doc. No. 149).[3]

         The defendants in this action filed a Motion for Summary Judgment which is currently pending. See generally Defs.' Mot. for Summ. J. (“Motion”) (Doc. No. 137). Defendants filed a Memorandum of Law in Support of their Motion, as well. See generally Defs.' Mem. of Law in Supp. of Summ. J. (“Mem. in Supp.”) (Doc. No. 137-1). Braham has opposed the Motion, see generally Pl.'s Opp'n to Defs.' Mot. for Summ. J. (“Opp'n”) (Doc. No. 157), [4] and has filed a Memorandum of Law in Opposition to the Motion, see generally Mem. of Law in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J.[5]For the reasons set forth below, the Motion for Summary Judgment (Doc. No. 137) is GRANTED IN PART and DENIED IN PART.

         II. FACTS

         Braham has been in the custody of the Commissioner of the Department of Correction since June 25, 1996. Defs.' L.R. 56(a)1 at 1 ¶ 1; Pl.'s L.R. 56(a)2 at 1 ¶ 1. Braham has been transferred several times among MacDougall-Walker Correctional Institution, Osborn Correctional Institution, and Cheshire. See Defs.' L.R. 56(a)1 at 1-2 ¶¶ 2-5; Pl.'s L.R. 56(a)2 at 1 ¶¶ 2-5. From October 31, 2001 to September 10, 2015, September 23, 2015 to October 16, 2015, and since October 22, 2015, Braham was or has been housed at Cheshire. See Defs.' L.R. 56(a)1 at 1-2 ¶¶ 2-5; Pl.'s L.R. 56(a)2 at 1 ¶¶ 2-5.

         Dr. Richard P. Benoit (“Dr. Benoit”) is the Director of Dental Services for the Department of Correction. See Defs.' L.R. 56(a)1 at 2 ¶ 7; Pl.'s L.R. 56(a)2 at 1 ¶ 7. He oversees dental staff, dental clinics, and the dental treatment provided to inmates within the Department of Correction. Defs.' L.R. 56(a)1 at 2 ¶ 8; Pl.'s L.R. 56(a)2 at 1 ¶ 8. In addition, he approves special treatment for dental needs. Defs.' L.R. 56(a)1 at 2 ¶ 9; Pl.'s L.R. 56(a)2 at 1 ¶ 9. Dr. Benoit has been disclosed as an expert for the defendants. Defs.' L.R. 56(a)1 at 2 ¶ 11; Pl.'s L.R. 56(a)2 at 1 ¶ 11.

         Wisdom teeth are the four molars at the back of one's mouth that may or may not erupt through an individual's gums. See Defs.' L.R. 56(a)1 at 2-3 ¶¶ 16-19; Pl.'s L.R. 56(a)2 at 1 ¶¶ 16-19. Wisdom teeth are numbered 1, 16, 17, and 32 and are located at the back of an individual's upper and lower jaw, one on each side of the upper jaw and one on each side of the lower jaw. See Defs.' L.R. 56(a)1 at 2-3 ¶¶ 16, 27; Pl.'s L.R. 56(a)2 at 1-2 ¶¶ 16, 27. Tooth number 1 is located on the right side of the mouth at the back of the upper jaw, tooth number 16 is located on the left side of mouth at the back of the upper jaw, tooth number 17 is located on the left side of the mouth in the back of the lower jaw and tooth number 32 is located on the right side of the mouth in the back of the lower jaw. Defs.' L.R. 56(a)1 at 3 ¶ 27; Pl.'s L.R. 56(a)2 at 2 ¶ 27.

         Wisdom teeth usually erupt through the gums between the ages of seventeen and twenty-five. Defs.' L.R. 56(a)1 at 3 ¶ 17; Pl.'s L.R. 56(a)2 at 1 ¶ 17. If a wisdom tooth does not fully erupt into its expected position in the jaw, it becomes impacted. Defs.' L.R. 56(a)1 at 3 ¶ 19; Pl.'s L.R. 56(a)2 at 1 ¶ 19. Not all wisdom teeth that become impacted must be removed. Defs.' L.R. 56(a)1 at 3 ¶ 21; Pl.'s L.R. 56(a)2 at 2 ¶ 21. Wisdom teeth may also effect other teeth as they erupt. See Defs.' L.R. 56(a)1 at 3 ¶ 18; Pl.'s L.R. 56(a)2 at 1 ¶ 18. An individual may experience pain when a wisdom tooth erupts, Defs.' L.R. 56(a)1 at 3 ¶ 23; Pl.'s L.R. 56(a)2 at 2 ¶ 23, which pain may be treated with anti-inflammatory or pain medication, Defs.' L.R. 56(a)1 at 3 ¶ 25; Pl.'s L.R. 56(a)2 at 2 ¶ 25.

         On January 21, 2014, at Cheshire, Dr. David Sochacki, DDS (“Dr. Sochacki”), examined Braham's teeth. See Motion, Ex. 7 (Doc. No. 139) at 51. Dr. Sochacki noted generalized sensitivity, mild recession, and mesial angular impactions of the wisdom teeth in the lower jaw (teeth numbers 17 and 32), and deep pockets on the distal or back side of the second molars in the lower jaw (teeth numbers 18 and 31).[6] See Id. He did not observe any swelling, palpable nodes, or mobility of the teeth. See id. Dr. Sochacki diagnosed Braham as suffering from gingival or gum recession and impaction of the wisdom teeth, numbers 17 and 32. See id. He recommended that wisdom teeth numbers 17 and 32 be removed and referred Braham to an oral surgeon. See id.

         On February 25, 2014, Dr. Peter O'Shea, DDS (“Dr. O'Shea”), examined Braham regarding the possibility of removing wisdom teeth numbers 17 and 32. See Defs.' L.R. 56(a)1 at 7 ¶ 60; Pl.'s L.R. 56(a)2 at 3 ¶ 60. He noted Braham's complaints of episodic pain on both sides of his jaw and mesioangular impactions and partial eruptions of his wisdom teeth. See Motion, Ex. 7 at 51. He observed no swelling or infections in the area of those wisdom teeth and did not prescribe any medication to treat Braham's symptoms. See id.; Defs.' L.R. 56(a)1 at 7 ¶ 61; Pl.'s L.R. 56(a)2 at 3 ¶ 61. Dr. O'Shea concluded that Braham's wisdom teeth needed to be extracted, submitting a request to the Utilization Review Committee (“URC”) for Braham to undergo oral surgery to remove wisdom teeth numbers 17 and 32 because they were impacted and presented a high risk of caries or tooth decay. See Motion, Ex. 7 at 51; Defs.' L.R. 56(a)1 at 7 ¶¶ 62-63; Pl.'s L.R. 56(a)2 at 3 ¶¶ 62-63; Opp'n, Ex. A (Doc. No. 157-1)[7] at 2 ¶ 6. Dr. Benoit approved the request. See Motion, Ex. 10 (Doc. No. 137-11) at 7 ¶ 62.

         At some point between February 25, 2014 and February 4, 2015, Dr. Perelmuter, DMD, replaced Dr. Sochacki as the dentist at Cheshire. See Defs.' L.R. 56(a)1 at 7-8 ¶¶ 60-65; Pl.'s L.R. 56(a)2 at 3 ¶¶ 60-65. On February 4, 2015, Dr. Perelmuter summoned Braham to the dental clinic. See Defs.' L.R. 56(a)1 at 8 ¶ 66; Pl.'s L.R. 56(a)2 at 3 ¶ 66. He believed that the second molars in Braham's lower jaw, teeth numbers 18 and 31, were both decayed and could not be restored and that wisdom teeth numbers 17 and 32 did not need to be extracted because they did not have any decay. See Motion, Ex. 7 at 9-10, 51. He stated that the pockets that had formed at the back of teeth numbers 18 and 31 would resolve once those teeth had been extracted. See id. at 51. Dr. Perelmuter withdrew the URC's prior approval for the extraction of wisdom teeth numbers 17 and 32. Defs.' L.R. 56(a)1 at 8 ¶ 68; Pl.'s L.R. 56(a)2 at 3 ¶ 68.

         On February 20, 2015, Dr. Perelmuter met with Braham in response to Braham's request for a Health Services Review seeking the extraction of wisdom teeth numbers 17 and 32-instead of teeth numbers 18 and 31-and the restoration of teeth numbers 18 and 31. See Motion, Ex. 5 (Doc. No. 137-6) at 10-11; Motion, Ex. 7 at 49. Dr. Perelmuter explained that Correctional Managed Health Care policy did not allow for inmates to undergo molar root canals or to have teeth restored using crowns. See Defs.' L.R. 56(a)1 at 8 ¶ 70; Pl.'s L.R. 56(a)2 at 3 ¶ 70. Dr. Perelmuter again opined that removal of teeth numbers 18 and 31 would resolve Braham's dental issues. See Defs.' L.R. 56(a)1 at 8 ¶ 70; Pl.'s L.R. 56(a)2 at 3 ¶ 70. Braham refused to consent to the extraction of teeth numbers eighteen and thirty-one. See Defs.' L.R. 56(a)1 at 8 ¶ 71; Pl.'s L.R. 56(a)2 at 3 ¶ 71; Opp'n, Ex. A at 2 ¶ 10 (“I refused Dr. Perelmuter's ultimatum that I allow him to extract the molars adjacent to my impacted wisdom teeth.”).

         Dr. Benoit examined Braham's teeth on July 29, 2015. Defs.' L.R. 56(a)1 at 8 ¶ 72; Pl.'s L.R. 56(a)2 at 3 ¶ 72. He opined that x-rays showed that wisdom teeth 17 and 32 would not function properly if they fully erupted because of their angle and because the teeth in Braham's lower jaw would not properly fit together with the teeth in his upper jaw when chewing. See Defs.' L.R. 56(a)1 at 8 ¶ 74; Pl.'s L.R. 56(a)2 at 3 ¶ 74. In addition, he thought it was questionable as to whether teeth numbers 18 and 31 could be restored, because there was evidence of decay in those teeth. See Defs.' L.R. 56(a)1 at 8 ¶ 73; Motion, Ex. 7 at 49.[8] He explained to Braham that he could lose all four teeth if none of those teeth could be saved. Defs.' L.R. 56(a)1 at 9 ¶ 75; Pl.'s L.R. 56(a)2 at 4 ¶ 75.

         Braham requested that wisdom teeth 17 and 32 be extracted. See Defs.' L.R. 56(a)1 at 9 ¶ 76; Pl.'s L.R. 56(a)2 at 4 ¶ 76. Dr. Benoit completed a URC request seeking extraction of the two wisdom teeth. See Defs.' L.R. 56(a)1 at 9 ¶ 77; Pl.'s L.R. 56(a)2 at 4 ¶ 77. On August 14, 2015, an oral surgeon extracted wisdom teeth 17 and 32. See Motion, Ex. 7 at 3, 12. Shortly after the surgery, Braham developed dry sockets at the sites of the extractions. See Defs.' L.R. 56(a)1 at 9 ¶ 80; Pl.'s L.R. 56(a)2 at 4 ¶ 80. Dr. O'Shea treated Braham for this condition. See Defs.' L.R. 56(a)1 at 9-10 ¶¶ 80-85; Pl.'s L.R. 56(a)2 at 4 ¶¶ 80-85.

         On September 15, 2015, Dr. Stephanie Katz removed the decay from tooth number 31 and filled it with amalgam, and, on September 17, 2015, Dr. Katz restored tooth number 18. See Defs.' L.R. 56(a)1 at 10-11 ¶¶ 90-92, 95; Pl.'s L.R. 56(a)2 at 4 ¶¶ 90-92, 95. On September 18, 2015, Dr. Katz extracted wisdom tooth number 1, with Braham's consent, because it was impinging on the gingiva below and did not occlude with the lower teeth on that side. See Defs.' L.R. 56(a)1 at 11 ¶¶ 91, 96; Pl.'s L.R. 56(a)2 at 4 ¶¶ 91, 96.

         On October 8, 2015, Dr. Perelmuter examined Braham due to his complaints of swelling around tooth number 31. See Motion, Ex. 7 at 47. Dr. Perelmuter observed a draining infection near tooth 31. See id; Defs.' L.R. 56(a)1 at 11 ¶ 98.[9] He concluded that the tooth was non-restorable and should be extracted. See Defs.' L.R. 56(a)1 at 11 ¶ 98. After consulting with Dr. Benoit, Dr. Perelmuter prescribed an antibiotic to treat the infection in tooth number 31. See Motion, Ex. 7 at 47. Dr. Perelmuter examined Braham again on October 13, 2015. See Defs.' L.R. 56(a)1 at 12 ¶ 100; Pl.'s L.R. 56(a)2 at 4 ¶ 100. He observed swelling around teeth numbers 18 and 31 and recommended extraction of both teeth. See Defs.' L.R. 56(a)1 at 12 ¶ 100; Pl.'s L.R. 56(a)2 at 4 ¶ 100; Motion, Ex. 7 at 45. In response to this recommendation, Braham sought to be examined at University of Connecticut Health Center. See Motion, Ex. 7 at 45.

         On October 19, 2015, Braham was transferred to Osborn Correctional Institution to be examined by Dr. Katz. See Defs.' L.R. 56(a)1 at 12 ¶ 102; Pl.'s L.R. 56(a)2 at 5 ¶ 102. After examining Braham, Dr. Katz noted that teeth numbers 18 and 31 were unremarkable, but that excess scar tissue had formed in the sockets of wisdom teeth 17 and 32 and was causing swelling in the area of teeth numbers 18 and 31. See Defs.' L.R. 56(a)1 at 12 ¶ 103; Pl.'s L.R. 56(a)2 at 5 ¶ 103. She also observed a slight overhang of the filling in tooth number 31. See Defs.' L.R. 56(a)1 at 12 ¶ 104; Pl.'s L.R. 56(a)2 at 5 ¶ 104. Dr. Katz removed the scar tissue and smoothed the filling in tooth number 31 so that it would not be in contact with the gum. See Defs.' L.R. 56(a)1 at 12 ¶ 105; Pl.'s L.R. 56(a)2 at 5 ¶ 105. Dr. Katz examined Braham again on October 20, 2015 and noted that the area was healing well and no infection was present. See Defs.' L.R. 56(a)1 at 12 ¶ 106; Pl.'s L.R. 56(a)2 at 5 ¶ 106.

         As of February 10, 2016, Dr. Bruce Lichtenstein (“Dr. Lichtenstein”) was the dentist assigned to Cheshire. See Defs.' L.R. 56(a)1 at 12-13 ¶¶ 107-08; Pl.'s L.R. 56(a)2 at 5 ¶¶ 107-08. He examined Braham and recommended the replacement of the filling in tooth number 31. See Defs.' L.R. 56(a)1 at 13 ¶ 108; Pl.'s L.R. 56(a)2 at 5 ¶ 108. On May 18, 2016, Dr. Lichtenstein replaced the filling in tooth number 31. See Defs.' L.R. 56(a)1 at 13 ¶ 110; Pl.'s L.R. 56(a)2 at 5 ¶ 110. That filing subsequently broke, and Dr. Liechtenstein replaced it on May 23, 2016. See Defs.' L.R. 56(a)1 at 13 ¶ 111; Pl.'s L.R. 56(a)2 at 5 ¶ 111.

         III. LEGAL STANDARDS

         A motion for summary judgment may be granted only where there are no issues of material fact in genuine dispute, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). The moving party may satisfy his or her burden “by showing- that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted).

         When a motion for summary judgment is supported by documentary evidence and sworn affidavits and the moving party “demonstrates the absence of a genuine issue of material fact, ” the nonmoving party must do more than vaguely assert the existence of some unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). Thus, the party opposing the motion for summary judgment “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.

         In reviewing the record, the court must “construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). The Second Circuit has articulated the job of the district court as follows:

The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists. . . . Summary judgment is inappropriate when the admissible materials in the record make it arguable that the claim has merit, for the court in considering such a motion must disregard all evidence favorable to the moving party that the jury is not required to believe.

Rogoz v. City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015) (internal quotation marks, citations, and emphasis omitted).

         Where one party is proceeding pro se, [10] the court interprets that party's papers liberally “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact” and cannot overcome a properly-supported motion for summary judgment. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted).

         IV. DISCUSSION

         The defendants assert seven arguments in support of their Motion. They contend that: (1) the request for declaratory relief is barred by the Eleventh Amendment, see generally Mem. in Supp. at 10-11; (2) the claims against Nurse O'Loughlin are subject to dismissal pursuant to Federal Rule of Civil Procedure 4(m), see generally Id. at 18-19; (3) Braham failed to exhaust his administrative remedies as to the claim against Health Administrator Brown and the retaliation claim against Dr. Perelmuter, see generally id. at 11-17; (4) Braham has failed to adduce facts showing the personal involvement of Health Administrator Brown in the alleged failure to provide Braham with dental care, in violation of the Eighth Amendment, see generally id. at 19-21; (5) Braham's retaliation claim against Dr. Perelemuter fails, see generally id. at 16-18; (6) Braham fails to adduce facts that support his claim that Health Administrator Brown or Dr. Perelmuter violated his Eighth Amendment rights, see generally id. at 22-26; and (7) defendants are entitled to qualified immunity, see id. at 26-27.

         A. Declaratory Relief

         Braham seeks money damages from Dr. Perelmuter, Nurse O'Loughlin, and Health Administrator Brown in their individual capacities, and a declaratory judgment against those defendants, as well as Dr. Wu and Commissioner Semple. See SAC at 1, 16. Dr. Wu and Commissioner Semple argue that the request for declaratory relief is barred by the Eleventh Amendment. See Mem. in Supp. at 10-11. Braham has not responded to this argument.

         The Second Amended Complaint includes a multi-part request for declaratory relief. Braham asks the court to declare that: (1) the failure of Dr. Perelmuter, Nurse O'Loughlin, and Health Administrator Brown to provide for the surgical extraction of his impacted wisdom teeth violated the Eighth Amendment; (2) the failure of Dr. Perelmuter, Nurse O'Loughlin, and Health Administrator Brown to restore his second lower molars violated the Eighth Amendment; (3) the general failure of Dr. Perelmuter, Nurse O'Loughlin, and Health Administrator Brown to provide him with necessary dental services violated the Eighth Amendment; and (4) the conduct of Dr. Perelmuter in refusing to meet his post-operative dental needs in August and October 2015 constituted retaliation in violation of the First Amendment. See SAC at 16. Commissioner Semple and Dr. Wu contend that the request for declaratory relief should be dismissed as barred by the Eleventh Amendment because it is retrospective instead of prospective. See generally Mem. in Supp. at 10-11. Braham makes clear that he has sued Dr. Perelmuter, Nurse O'Loughlin, and Health Services Administrator Brown in their individual capacities, and Dr. Wu and Commissioner Semple in their official capacities. See SAC at 1-2.

         The purpose of the Declaratory Judgment Act is to allow parties to resolve claims before either side suffers great harm. See In re Combustion Equip. Assocs., Inc., 838 F.2d 35, 37 (2d Cir. 1988). In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court held that an exception to the Eleventh Amendment's grant of sovereign immunity from suit existed to permit a plaintiff to sue a state official acting in his or her official capacity for prospective injunctive relief for continuing violations of federal law. Id. at 155-56. The exception to Eleventh Amendment immunity, however, does not apply to claims against state officials seeking declaratory or injunctive relief for prior violations of federal law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (noting that exception to Eleventh Amendment immunity set out in Ex parte Young “does not permit judgments against state officers declaring that they violated federal law in the past”); Green v. Mansour, 474 U.S. 64, 68 (1985) (“We have refused to extend the reasoning of Young . . . to claims for retrospective relief.”) (citations omitted); Ward v. Thomas, 207 F.3d 114, 119-20 (2d Cir. 2000) (holding that Eleventh Amendment bars declaratory judgment that Connecticut officials violated federal law in past).

         Braham's request for a declaration that the defendants violated his First and Eighth Amendment rights in 2014 and 2015 cannot be properly characterized as “prospective” because Braham does not allege how such relief would remedy a future constitutional violation by the defendants. Thus, Braham's request for declaratory relief does not meet the exception to Eleventh Amendment immunity set forth in Ex parte Young. Absent any request for prospective relief to remedy ongoing violations of federal law, a declaration that the defendants violated Braham's constitutional rights in the past is barred by the Eleventh Amendment. See Green, 474 U.S. at 71-73 (holding that, if there is no allegation of an ongoing violation of federal law, Eleventh Amendment prevents federal courts from providing notice relief or declaratory judgment that state officials violated federal law in past); Jackson v. Battaglia, 63 F.Supp.3d 214, 220-21 (N.D.N.Y. 2014) (dismissing requests for relief seeking an “injunction precluding any unlawful conduct alleged within this complaint at any time in the future and a declaration that defendants have violated federal law, ” because they “cannot be properly characterized as prospective” requests for relief) (internal quotation marks omitted).

         Moreover, in addition to the Eleventh Amendment bar to his claim for declaratory relief, Braham clearly lacks Article III standing to pursue a declaratory judgment against any of the defendants. Though this issue was not briefed by the parties, federal courts retain an independent obligation to ensure that standing exists. See Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). It is well established that a plaintiff must have constitutional standing for each form of relief he seeks. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)). The “irreducible constitutional minimum” of Article III standing is: “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likel[ihood] that the injury will be redressed by a favorable decision.” See Montesa v. Schwartz, 836 F.3d 176, 195 (2d Cir. 2016) (internal quotation marks and citations omitted).

         Here, where Braham seeks a declaratory judgment, he “cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he . . . will be injured in the future.” Dashawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)). Braham's claims are grounded in the alleged, past violations of his rights. See SAC at 16. He has not suggested that he is likely to suffer a future injury, as his allegations of improper conduct are entirely phrased in the tense. See generally SAC. His claim for declaratory relief fails, both because he has not alleged or adduced evidence that future injury is likely and because a declaratory judgment could not redress the past harms he alleges in his SAC and describes in his Opposition, see Stevens v. Malloy, No. 3:15-cv- 934 (JCH), 2016 WL 6440112, at *6 (D. Conn. Oct. 28, 2016) (“[P]rospective [relief] could not possibly redress a past constitutional violation; rather, . . . money damages are the proper remedy for past violations of [plaintiff's] rights.”).

         In the absence of any material facts in dispute regarding the request for declaratory relief, the defendants are entitled to summary judgment as a matter of law. The Motion for Summary Judgment is granted as to the request for declaratory ...


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