United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY
Glazer Margolis United States Magistrate Judge.
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.(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.). 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).
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).
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.
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).
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).
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
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
[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[.]
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.
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.
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).
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.
a Motion for Extension of the dispositive motion deadline
(Dkts. ##120-21), defendant filed the pending Motion for
Summary Judgment with brief and exhibits in support on
August 9, 2017. (Dkts. ##122-26). On August 25, 2017,
plaintiff filed her brief in opposition (Dkt. #127), along
with a Motion to Request a Trial Date. (Dkt.
#128). Five days later, defendant filed its reply
brief (Dkt. #129),  and on September 20, 2017, plaintiff filed
her surreply brief. (Dkt. #130).
reasons set forth below, defendant's Motion for Summary
Judgment (Dkt. #122) is granted in part and denied in
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). 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.
was apprised of the requirement of submitting admissible
evidence demonstrating a genuine issue for trial because the
“Notice to Pro Se Litigant” and copies of the
applicable federal and local civil rules were attached to
defendant's motion. (See Dkts. ##122-2 to
122-4). 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).
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.
and in light of the foregoing discussion, the Court finds the
following undisputed facts.
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).
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).
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). 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).
SUMMARY JUDGMENT STANDARD
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.
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).
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).
FEDERAL TORT CLAIMS ACT
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 ...