Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duverge v. United States

United States District Court, D. Connecticut

October 31, 2017



          Joan Glazer Margolis United States Magistrate Judge.

         Although familiarity with this Court's previous Ruling on Defendant's Motion for Summary Judgment, filed April 7, 2014 (Dkt. #68), 2014 WL 1366194 [“April 2014 Ruling”], is presumed, the lengthy procedural history of this protracted nearly seven-year-old litigation will be recited below. On December 7, 2010, plaintiff Charlotine Duverge, who was an inmate at Federal Correctional Institution ["FCI"] in Danbury, Connecticut at the time the allegations in her complaint occurred, commenced this action pro se under the Federal Tort Claims Act ["FTCA"], 28 U.S.C. § 2671, alleging injuries arising out of treatment by her counselor following an asthma attack on May 4, 2008, and the medical treatment received thereafter.[1](Dkt. #1). Specifically, plaintiff alleges that her counselor caused her to suffer an asthma attack, injured her arm and shoulder, and gave her an overdose of asthma medication causing her to have a mild heart attack. (Id.).[2] She also alleges that following this incident, "[d]ue to the lack of due diligence and delay in access to proper medical treatment, [she] suffered, and continues to suffer[, ] . . . severe pain and numbness in her entire [right] side[.]" (Dkt. #1, at 5).

         On May 25, 2011, U.S. District Judge Janet Bond Arterton filed an Initial Review Order in which she permitted plaintiff the "opportunity to address the government's response to her [FTCA] claims." (Dkt. #4, at 2-3). On September 9, 2011, defendant filed its answer (Dkt. #7), along with a Motion to Transfer Venue to the District of Minnesota, as plaintiff was incarcerated at FCI Waseca at the time she filed her complaint. (Dkts. ##8-9; see Dkts. ##11, 13-14). Judge Arterton denied defendant's motion, staying and administratively closing the case while plaintiff remained in FCI Waseca. (Dkt. #15).

         Consistent with Judge Arterton's order, discovery proceeded (see Dkt. #15; see also Dkts. ##17-20), and sometime prior to July 11, 2012, plaintiff was released; she relocated to Massachusetts and moved to reopen the case. (Dkt. #21; see also Dkt. #24). Privately retained counsel appeared for plaintiff on October 17, 2012. (Dkt. #22). One month later, different privately retained counsel appeared for plaintiff (Dkt. #23); he similarly moved to reopen the case. (Dkt. #25). On December 7, 2012, Judge Arterton granted both motions to reopen and the case was restored to the active docket. (Dkt. #27). In December 2012, both of the parties expressed their intent to consent to the jurisdiction of this Magistrate Judge. (See Dkts. ##28-29, 31). A few months later, in April-May 2013, both of plaintiff's attorneys withdrew from the case (Dkts. ##32-33, 38-39, 41-42), and on April 29, 2013, plaintiff filed her pro se appearance. (Dkt. #36). On May 15, 2013, this case was transferred to this Magistrate Judge. (Dkt. #40).

         On June 10, 2013, plaintiff filed a Motion to Appoint Counsel (Dkt. #44; see also Dkts. ##42-43 (advising plaintiff that she should notify the Court if she requested pro bono counsel)), which was granted seven days later. (Dkt. #45). On August 28, 2013, plaintiff filed a Motion for Settlement Conference (Dkt. #48) which was granted two days later (Dkt. #49), and on September 10, 2013, two pro bono attorneys appeared on behalf of plaintiff for “SETTLEMENT PURPOSES ONLY.” (Dkt. #51 (emphasis in original); Dkts. ##52-53). A unsuccessful settlement conference was held before U.S. Magistrate Judge Thomas P. Smith on December 11, 2013 (Dkts. ##55-57; see also Dkt. #54), following which the pro bono counsel withdrew from the case. (Dkts. ##58-60).

         On February 6, 2014, defendant filed its first Motion for Summary Judgment (Dkt. #66), and on February 28, 2014, plaintiff, once again proceeding pro se, filed her brief in opposition. (Dkt. #67; see also Dkt. #64). On April 7, 2014, this Magistrate Judge denied defendant's Motion in the April 2014 Ruling, and the Clerk was directed to appoint pro bono counsel. (Dkt. #68; 2014 WL 1366194). Three months later, on July 18, 2014, new pro bono counsel, plaintiff's fifth attorney in this case, appeared. (Dkt. #70).

         Following a telephonic status conference held on October 6, 2014, this Magistrate Judge directed plaintiff's pro bono counsel to review plaintiff's underlying medical reports from the Bureau of Prisons [“BOP”], and report back to Chambers. (Dkt. #73). Eleven days later, the Government filed a Notice by USA of Sending Medical Records to Successor Counsel. (Dkt. #75). Five months later, on March 3, 2015, having not heard from pro bono counsel, this Magistrate Judge ordered counsel to file status reports (Dkt. #76); the Government filed its report two days later (Dkt. #77). Twenty-two days after this Magistrate Judge issued her order to counsel, a second order was filed directing plaintiff's pro bono counsel to

file his Status Report, communicate with his client and discuss fully the merits of the lawsuit, and then contact both defense counsel and the Court to schedule a continued status conference; plaintiff's [pro bono] counsel must file a Motion for Relief from Appointment consistent with all the provisions of Local Rule 83.10(d); or plaintiff herself must file a Motion for Discharge pursuant to Local Rule 83.10(e).

(Dkt. #78). Plaintiff's counsel filed his status report over a month later, on April 29, 2015 (Dkt. #79), in which he reported that plaintiff was in the process of locating medical records from the prison she was transferred to, FCI Waseca, after her initial incarceration in FCI Danbury, as well as treatment records since the date of her release. The next day, defendant filed its response disputing plaintiff's representation that she was seeking additional medical records from the Bureau of Prisons. (Dkt. #80). On May 13, 2015, this Magistrate Judge held a status conference during which deadlines were set (Dkt. #82); discovery was scheduled to close on or before December 31, 2015 and dispositive motions were to be filed on or before February 12, 2016. (Dkt. #83). On the same day, the case was administratively closed

[i]n light of the extended period of time it has taken (and may continue to take) for counsel to obtain copies of ALL of plaintiff's medical records, including those after she was released from custody[;] in light of circumstances regarding one potential witness[;] and in light of the age of this file[.]

(Dkt. #84).

         In November and December 2015, the Government filed two Motions to Compel (Dkts. ##85, 87), which were granted in part such that plaintiff was ordered to produce her medical records to defendant; discovery was extended to April 29, 2016; and the dispositive motion deadline was extended to May 31, 2016. (Dkt. #89).

         On March 14 and April 4, 2016, the Government filed successive Motions to Dismiss (Dkts. ##91, 94), for plaintiff's failure to comply with the Court's discovery orders. On April 4, 2016, plaintiff's pro bono counsel filed a status report in which he requested additional time for discovery (Dkt. #95), and ten days later, plaintiff, proceeding pro se filed her objection to defendant's motion and requested a trial date. (Dkt. #96). Fifteen days thereafter, on April 29, 2016, this Magistrate Judge issued her Ruling denying defendant's motions to dismiss without prejudice to renew as appropriate (Dkt. #97), and extended the discovery deadline “for the very last and final time” to July 29, 2016. (Id. at 3 (emphasis in original)); see also 2016 WL 1732709.

         On June 1, 2016, defendant filed another Motion to Dismiss (Dkt. #98), again for plaintiff's failure to abide by the Court's discovery orders, and after plaintiff's pro bono counsel withdrew his appearance seven days later (Dkt. #99), this Magistrate Judge filed a ruling denying defendant's motion without prejudice to renew as appropriate. (Dkt. #102); see also 2016 WL 4099023. On August 29, 2016, new pro bono counsel filed his appearance; this sixth attorney for plaintiff was appointed for discovery only. (Dkts. ##103-04).

         Following a telephonic status conference held on November 17, 2016 (Dkt. #108; see also Dkt. #107 (status/settlement conference held on October 6, 2016)), this Magistrate Judge set a deadline of May 31, 2017 for all discovery, and a deadline of June 30, 2017 for dispositive motions. (Dkt. #109). On January 30, 2017, defendant filed a Motion to Compel complete discovery responses (Dkt. #110); plaintiff failed to file a timely opposition, and on February 28, 2017, a Ruling was filed in which defendant's motion was granted with compliance ordered by March 22, 2017. (Dkt. #111). At the close of discovery, and thirty days following plaintiff's deposition, plaintiff's pro bono counsel moved to withdraw his appearance consistent with the condition of his appointment; his motion was granted the same day, June 30, 2017. (Dkts. ##118-19; see also Dkts. ##112-17).[3]

         Following a Motion for Extension of the dispositive motion deadline (Dkts. ##120-21), defendant filed the pending Motion for Summary Judgment[4] with brief and exhibits in support on August 9, 2017. (Dkts. ##122-26).[5] On August 25, 2017, plaintiff filed her brief in opposition (Dkt. #127), along with a Motion to Request a Trial Date. (Dkt. #128).[6] Five days later, defendant filed its reply brief (Dkt. #129), [7] and on September 20, 2017, plaintiff filed her surreply brief. (Dkt. #130).

         For the reasons set forth below, defendant's Motion for Summary Judgment (Dkt. #122) is granted in part and denied in part.


         As an initial matter, plaintiff has not complied with Local Rule 56(a) of the Local Rules of Civil Procedure for the District of Connecticut. Local Rule 56(a) provides that a party

opposing a motion for summary judgment shall file and serve with the opposition papers a document entitled “Local Rule 56(a)2 Statement of Facts in Opposition to Summary Judgment, ” which shall include a reproduction of each numbered paragraph in the moving party's Local Rule 56(a)1 Statement followed by a response to each paragraph admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c).

D. Conn. L. Civ. R. 56(a)(2)(i).[8] Additionally, the party opposing summary judgment must also, in a separate section entitled “Additional Material Facts[, ]” set forth “any additional facts . . . that the party opposing summary judgment contends establish genuine issues of material fact precluding judgment in favor of the moving party.” D. Conn. L. Civ. R. 56(a)(2)(ii). Each statement of material fact, and each denial, must be followed by a specific citation. D. Conn. L. Civ. R. 56(a)(3). “Failure to provide specific citations to evidence in the record as required by [the] Local Rule may result in the Court deeming admitted certain facts that are supported by evidence in accordance with Local Rule 56(a)1[.]” Id. Alternatively, the Court may “impos[e] sanctions, including, . . . when the opponent[, in this case, the self-represented plaintiff, ] fails to comply, an order granting the motion if the motion and supporting materials show that the movant[, in this case, the defendant, ] is entitled to judgment as a matter of law.” Id.

         Plaintiff was apprised of the requirement of submitting admissible evidence demonstrating a genuine issue for trial because the “Notice to Pro Se Litigant”[9] and copies of the applicable federal and local civil rules were attached to defendant's motion. (See Dkts. ##122-2 to 122-4).[10] However, plaintiff did not file a Local Rule 56(a)2 Statement nor did she offer any exhibits in support of her one-page brief in opposition. (Dkt. #127).

         Although plaintiff's failure to comply with the Local Rules could, by itself, result in granting summary judgment in defendant's favor, the Court declines to impose such a sanction on plaintiff. See Vitale v. Catanese, No. 3:11 CV 1831 (MPS), 2013 WL 3992394, at *1, n.2 (D. Conn. Aug. 2, 2013)(citation omitted)(“Plaintiff's failure to file a 56(a)(2) Statement is alone grounds for granting the Motion for Summary Judgment. Nonetheless, the Court will reach the merits of [p]laintiff's claim.”)(citation omitted). Rather, "[i]n deference to . . . [p]laintiff's pro se status, " this Court, "to the extent possible, will regard . . . [p]laintiff's version of the facts contained in [her] opposition (excluding arguments or conclusory statements) as responsive" to defendant's Local Rule 56(a)1 Statement. Wilks v. Elizabeth Arden, Inc., 507 F.Supp.2d 179, 185 (D. Conn. 2007). The facts contained in plaintiff's opposition in this case relate to her claim of injury; thus, the Court will consider the medical records submitted in support of defendant's motion. As the court explained in Wilks:

This policy of liberally construing pro se submissions is driven by the understanding that [i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.

Id., quoting Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)(internal quotations omitted). However, this Court will deem admitted all facts set forth in defendant's Local Rule 56(a)(1) Statement that are supported by evidence, and that are not refuted in plaintiff's brief in opposition.[11]

         Accordingly and in light of the foregoing discussion, the Court finds the following undisputed facts.

         Plaintiff was incarcerated at FCI Danbury from June 6, 2007 through October 7, 2009. (Def. Local R. 56(a)1 Stmt ¶ 4; Magnusson Decl. ¶ 3). Plaintiff was transferred to FCI Waseca in Waseca, Minnesota, between October 7-13, 2009, and remained incarcerated at that facility from October 13, 2009 until her release on July 6, 2012. (Def. Local R. 56(a)1 Stmt ¶¶ 4-5; Magnusson Decl. ¶ 3; Pl. Depo. at 17).

         On May 4, 2008, the date of the incident at issue in this lawsuit (see Def. Local R. 56(a)1 Stmt ¶ 4; Pl. Depo. at 64-67), Counselor Perkins at FCI Danbury saw plaintiff after she had fallen on the floor (Pl. Depo. at 67-68) and, in plaintiff's words, Perkins “was pulling me up [by] my shoulder but she wasn't pulling me in a way to hurt me.” (Id.; see Def. Local R. 56(a)1 Stmt ¶ 14). Plaintiff received treatment for her shoulder at both FCI Danbury and FCI Waseca. (See Def. Local R. 56(a)1 Stmt ¶ 15; Pl. Depo. at 71).

         One or two days following the incident, plaintiff was taken to Danbury Hospital. (Compare Pl. Depo. at 72 (testifying that she was seen the next day, on May 5, 2008) with Dkt. #124-5, at 93-95 (Danbury Hospital records dated May 6, 2008)). Plaintiff received copies of all of her medical records from the BOP, as well as from Boston Medical after plaintiff was released from BOP custody. (Id. at 52-53, 72-75; see Def. Local R. 56(a)1 Stmt ¶¶ 12-13). There are no references in any of these records to plaintiff having had a heart attack (See Def. Local R. 56(a)1 Stmt ¶ 12; Pl. Depo. at 51-53), and no one has told plaintiff that she has a heart problem. (See Def. Local R. 56(a)1 Stmt ¶ 10; Pl. Depo. At 44).[12] Additionally, plaintiff does not recall telling her treating doctor, Dr. Berman, that she had previously suffered a heart attack. (See Def. Local R. 56(a)1 Stmt ¶ 11; Pl. Depo. at 51). Plaintiff applied for and was denied disability benefits. (See Def. Local R. 56(a)1 Stmt ¶ 22; Pl. Depo. at 134).



         The standard for summary judgment is well established. The moving party is entitled to summary judgment if it demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). This showing may be made by depositions, affidavits, interrogatory answers, admissions, or other exhibits in the record. Fed.R.Civ.P. 56(c). "The substantive law governing the case will identify those facts that are material, and '[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lily & Co., 654 F.3d 347, 358 (2d Cir. 2011)(citation omitted).

         “Where one party is proceeding pro se, the Court reads the pro se party's papers liberally and interprets them to raise the strongest arguments suggested in those papers.” Collins v. Experian Credit Reporting Serv., 494 F.Supp.2d 127, 131 (D. Conn. 2007), citing Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007); see also Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)(pro se litigants are afforded “special solitude”); Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)(citation omitted)(pro se litigant's submissions must be construed “liberally”); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)(citation omitted)(submissions must be read to raise the strongest arguments that they “suggest”)(citation omitted). That said, however, “a ‘bald assertion, completely unsupported by evidence, ' cannot overcome a properly supported motion for summary judgment[, ]” Collins, 494 F.Supp.2d at 131-32, quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991), and pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)(citation & internal quotations omitted).

         Defendant moves for summary judgment on grounds that plaintiff lacks evidence to support her claims as she has not disclosed a medical expert, nor is there evidence of the medical conditions she alleges in her complaint. (Dkt. #124, at 4-5, 7-11). In her one-page brief in opposition, plaintiff asserts that she is permanently disabled “due to the injuries inflicted and the delay[ ] of proper medical care and treatments[, ]” and that she is “medically unable to work to provide for herself [and her] family. (Dkt. #127).



         Plaintiff has brought her action against the Government under the FTCA. The FTCA is a limited waiver of the United States' sovereign immunity. See 28 U.S.C. § 2679(b)(1). The FTCA permits individuals to file, inter alia, personal injury claims against the United States based on the acts of a government employee who is acting within the scope of his or her employment, if “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). “‘[T]he FTCA directs courts to consult state law to determine whether the government is liable for the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.