United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
R. UNDERHILL UNITED STATES DISTRICT JUDGE
April 28, 2016, Gregory Swinton, an inmate currently
incarcerated at McDougall-Walker Correctional Institution in
Suffield, Connecticut, filed this case pro se under
42 U.S.C. § 1983. Swinton alleged that Dr. Carson Wright
deprived him of a proper, allergy-free diet for fifty-seven
days, in violation of his Eighth Amendment protection against
cruel and unusual punishment. Such deprivation allegedly
rendered Swinton unable to eat 146 of the meals served by the
staff at Northern Correctional Institution
(“Northern”) in Somers, Connecticut, where he was
housed at the time, and “caused his health to
diminish.” Pl.'s Opp'n to Mot. Summ. J. at 3
(doc. # 32). On June 28, 2016, I issued an Initial Review
Order permitting Swinton's Eighth Amendment claim to
proceed against Wright, reasoning that Swinton had stated a
plausible claim of deliberate indifference to serious medical
needs. Initial Review Order (doc. # 13). On August 26, 2016,
Wright filed an answer to Swinton's complaint.
See Def.'s Answer (doc. # 16).
January 23, 2017, Wright filed the instant motion for summary
judgment with supporting exhibits, including Swinton's
medical file, Wright's sworn affidavit, and the Inmate
Request Forms and Grievances that Swinton filed while at
Northern. Def.'s Mot. Summ. J. (doc. # 29); Def.'s
Ex. 1 (doc. # 30). Swinton filed a written memorandum in
opposition to Wright's motion on February 28, 2017, along
with his own affidavit, an affidavit from his cellmate,
Latuan Gainey, excerpts from his medical records, and
nutritional information on the foods he was allegedly served
during the fifty-seven day period when he was not on his
special diet.Pl.'s Opp'n (doc. # 32). For the
following reasons, I grant Wright's motion. I.
Standard of Review In a motion for summary judgment,
the burden is on the moving party to establish that there are
no genuine issues of material fact in dispute and that he is
“entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it
“might affect the outcome of the suit under the
governing law, ” and it is “genuine” if
“a reasonable jury could return a verdict for the
nonmoving party” based on it. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Dister v. Continental Group, Inc., 859 F.2d 1108, 1114
(2d Cir. 1988) (mere existence of some alleged factual
dispute will not defeat summary judgment motion).
motion for summary judgment is supported by documentary
evidence and sworn affidavits and “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.; see also First Nat. Bank of Ariz. v. Cities
Service Co., 391 U.S. 253, 289 (1968) (nonmoving party
must submit sufficient evidence supporting claimed factual
dispute to require jury or judge to resolve parties'
differing versions of truth at trial).
reviewing the record, I must “construe the evidence in
the light most favorable to the non-moving party and to draw
all reasonable inferences in its favor.” Gary
Friedrich Enters., L.L.C. v. Marvel Characters, Inc.,
716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). If there
is evidence in the record from which a reasonable factual
inference could be drawn in favor of the opposing party for
the issue on which summary judgment is sought, however,
summary judgment is improper. See Security Ins. Co. of
Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77,
83 (2d Cir. 2004).
one party is proceeding pro se, I must read the
pro se party's papers liberally and interpret
them “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), cert.
denied, 540 U.S. 811 (2003).
is allergic to eggs and soy food products. In 2015 and early
2016, while incarcerated at Bridgeport Correctional Center
(“BCC”), Swinton was on an egg- and soy-free
diet. On February 17, 2016, however, Swinton requested that
he be taken off the special diet because he suspected that
the correction officers at BCC were “playin[g] with
[his] food.” Inmate Request Form, Unspecified Pl.'s
Ex. (doc. # 32-1 at 12). Wright, a principal physician at
UCONN Correctional Managed Health Care (“UCMHC”),
honored his request and ordered that he be taken off his
special diet. Initial Review Order at 2 (doc. # 13). That
same day, Swinton was transferred from BCC to Northern.
Def.'s Aff. at ¶ 12 (doc. # 29-3).
February 26, 2016, while housed at Northern, Swinton
requested via written Inmate Request Form that he be placed
back on his allergy-free diet and that he be examined for a
possible back injury. Def.'s Aff. at ¶ 13 (doc. #
29-3). Due to the frequency of inmate requests for special
diets, it is standard procedure for correctional medical
staff that all such requests be approved by Dr. Wu at UCMHC.
Id. at ¶ 7. Prior to issuing an approval, it is
also standard procedure for correctional medical staff to
verify the inmate's food allergy through the use of a
radioallergosorbent test or “RAST test.”
Id. at ¶ 8. A nurse who reviewed Swinton's
request placed Swinton on the list to be seen by a prison
doctor. Id. at ¶ 14. Nearly one month later, on
March 22, 2016, Wright evaluated Swinton. Id. at
¶ 15. He reviewed Swinton's medical records and
ordered that an x-ray be conducted on Swinton's back and
that Northern medical staff forward his diet request to Dr.
Wu. Id. at ¶ 16.
ordered the RAST test on April 6, 2016, which later revealed
that Swinton was, indeed, allergic to egg whites, wheat,
corn, soy, and peanuts. Def.'s Aff. at ¶ 18 (doc. #
29-3). Wright was notified of the RAST test results via
e-mail on April 12 and, two days later, ordered that Swinton
be placed on a therapeutic diet that includes no eggs, nuts,
or soy. Id. at ¶ 20.
his transfer to Northern on February 17, 2016, to
Wright's order on April 14, 2016, a total of fifty-seven
days, Swinton did not consume any of the meals provided by
Northern staff containing soy or eggs. Pl.'s Aff. (doc. #
32); Gainey Aff. (doc. # 32). Following his initial visit
with Wright, Swinton asked the correctional staff at Northern
to log all the meals being served that contained soy or eggs.
They logged 146 meals, none of which Swinton was able to
consume. Am. Comp. at ¶ 1 (doc. # 10).
support of his motion for summary judgment, Wright argues
that the uncontroverted evidence establishes that it was
Swinton, not Wright, who requested that his allergy-free diet
be discontinued in February 2016, that Wright adequately
responded to Swinton's request to be placed back on the
diet, and that Swinton suffered no adverse medical effects
during the period he was off the diet. Wright submits as
evidence his own affidavit, Swinton's Inmate Request
Forms showing that Swinton requested that he be removed from
the diet, and Swinton's sealed medical records.
Def.'s Ex. 2-4. Swinton does not dispute that he
requested to be taken off the diet in February 2016 but
argues that Wright should have placed him back on the diet
immediately upon his request and that the removal from the
diet “caused his health to diminish and . . . notable
weight loss . . . .” Pl.'s Opp'n at 3 (doc. #
32). As evidence, Swinton submits excerpts from his medical
records, which Wright reviewed during his evaluation of
Swinton on March 22, 2016, that clearly show an allergy to
eggs and soy. Id. at 18-20. He also submits
nutrition information for various foods that he claims were
served by Northern staff during the time he was off his diet
and affidavits from himself and his cellmate attesting to
Swinton's refusal to eat the foods being served during
that time. Id. at 9-12.
succeed on his claim for deliberate indifference to a serious
medical need, Swinton must show both that his medical need
was serious and that Wright acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316
F.3d 178, 184 (2d Cir. 2003) (citing Estelle v.
Gamble, 492 U.S. 97, 105 (1976)). There are both
objective and subjective components to the deliberate
indifference standard. See Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994). Objectively, the alleged
deprivation must be “sufficiently serious.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991). The
condition must be “one that may produce death,
degeneration, or extreme pain.” See Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal
quotation marks omitted). Subjectively, Wright must have been
actually aware of a substantial risk that Swinton would
suffer serious harm as a result of his actions or inactions.
See Salahuddin v. Goord, 467 F.3d 263, 280-81 (2d
Cir. 2006). Negligence that would support a claim for medical
malpractice does not rise to the level of deliberate