United States District Court, D. Connecticut
RULING ON MOTIONS FOR SUMMARY JUDGMENT
Michael P. Shea, U.S.D.J.
November 21, 2016, plaintiff Lawrence Patterson, a former
inmate of the Connecticut Department of Correction
(“DOC”), brought a civil complaint (ECF No. 1)
pro se under 42 U.S.C. § 1983 against Anna
Okonkwo and Nancy Walton,  two nurses employed at the Bridgeport
Correctional Center (“BCC”) in Bridgeport,
Connecticut, in their individual and official capacities for
damages and declaratory relief. The complaint is based on
events that allegedly occurred in August and October of 2011
while the plaintiff was incarcerated at BCC. On December 9,
2016, this Court issued its Initial Review Order (ECF No. 10)
permitting the complaint to proceed against the defendants.
In so ruling, however, the Court noted that the
plaintiff's claims may be time-barred by the three-year
statute of limitations under Conn. Gen. Stat. § 52-577
unless the plaintiff's case satisfies the continuing
violation doctrine or the equitable tolling doctrine.
See Initial Review Order at 3. The defendants
answered the complaint on September 20, 2017. Answer (ECF No.
31). Among the affirmative defenses asserted, the defendants
argued that the plaintiff's claims were barred by the
statute of limitations. Id. at 6.
5, 2017, the plaintiff filed a motion for summary judgment
(ECF No. 19). He asserts that his claims against the
defendants are not time-barred and that there are no genuine
issues of material fact with respect to their liability. The
defendants filed an opposition to the plaintiff's motion
on October 13, 2017, arguing that the plaintiff's claims
are unsupported and that the evidence shows “clear
disputes of material fact.” Defs.' Mem. of Law in
Opp'n to Pl.'s Mot. Summ. J. (ECF No. 42). On October
23, 2017, the defendants filed their own cross-motion for
summary judgment (ECF No. 50). They argue that the
plaintiff's claims are barred by the statute of
limitations and that the plaintiff is not entitled to tolling
under either the continuing violation or equitable tolling
doctrines. Mem. in Supp. of Defs.' Mot. Summ. J. (ECF No.
59). The plaintiff counters that the limitations period under
§ 52-577 should be tolled under the circumstances of his
case. Pl.'s Mem. in Opp'n to Defs.' Mot. Summ. J.
(ECF No. 63). For the following reasons, the Court will deny
the plaintiff's motion for summary judgment and grant the
defendants' cross-motion for summary judgment.
Relevant Legal Principles
motion for summary judgment, the burden is on the moving
party to establish that there are no genuine disputes of
material fact and that he or she 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 a
dispute is “genuine” if “a reasonable jury
could return a verdict for the nonmoving party” based
on the evidence in the record. 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 alleged factual dispute will not
defeat summary judgment motion). The moving party may satisfy
this 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 curium) (internal quotation marks and citations
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).
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 [his] favor.” Gary Friedrich Enters., L.L.C. v.
Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir.
2013) (citation omitted).
one party is proceeding pro se, the court 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).
following facts are taken from the parties' Local Rule
statements and from the record. They are undisputed unless
plaintiff was incarcerated at BCC from August 4, 2011 until
August 9, 2011. Pl.'s Local Rule 56(a)1 Statement
(“L.R. 56(a)1 Stmt.”) (ECF No. 19-1) ¶ 1;
Defs.' Local Rule 56(a)2 Statement (“L.R. 56(a)2
Stmt.”) (ECF No. 42-1) ¶ 1; Defs.' L.R. 56(a)1
Stmt. (ECF No. 57) at ¶ 1. On a number of occasions
during those dates, the plaintiff allegedly complained to
defendant Okonkwo about severe abdominal pain. Compl. 4;
Pl.'s L.R. 56(a)1 Stmt. at ¶ 2; Aff. of Nurse Anna
Okonkwo (“Okonkwo Aff.”) (ECF No. 42-3) at ¶
5. Okonkwo has no recollection of treating the plaintiff at
BCC. Okonkwo Aff. at ¶ 14. According to the plaintiff,
Okonkwo “refused to let [him] see the doctor” at
that time and told him to file a written Inmate Request form
for a doctor's appointment, which he says he did. Compl.
4; Defs.' L.R. 56(a)1 Stmt. at ¶ 6. Okonkwo avers,
however, that her review of the plaintiff's medical
history shows no record of his filing an Inmate Request Form
from August 4 to August 9. Okonkwo Aff. at ¶¶ 8,
22. On August 5, the plaintiff told Okonkwo that the pain was
worsening, and Okonkwo responded by saying that it “was
probably the flu.” Id. at ¶ 9. Although
she does not recall treating the plaintiff, Okonkwo affirms
that, when a patient complains of pain and her observations
and interactions with the patient show no signs of grave
distress, her customary practice is to instruct the patient
to submit an Inmate Request Form to see the doctor.
Id. at ¶ 23; Defs.' L.R. 56(a)1 Stmt. at
August 9, a correction officer at BCC reported to the medical
unit that the plaintiff was suffering from abdominal pain.
Defs.' L.R. 56(a)1 Stmt. at ¶ 9. Nurse Birks
transported the plaintiff to the medical unit where Dr.
Elderkin ordered that the plaintiff be sent to the emergency
room at St. Vincent's Hospital. Id. at
¶¶ 10-13; Pl.'s L.R. 56(a)1 Stmt. at ¶ 3.
There, it was revealed that the plaintiff, who has a history
of diverticulitis, had an acute pneumoperitoneum, a
perforated viscus, and perforated diverticulitis. Defs.'
L.R. 56(a)1 Stmt. at ¶ 14. The plaintiff underwent
surgery for his condition. See Id. at ¶ 15;
Pl.'s L.R. 56(a)1 Stmt. at ¶ 3. He returned to BCC
on October 5, 2011. Defs.' Ex. 5 (ECF No. 50-7) at 5.
records show that, upon his return to BCC, defendant Walton
assisted the plaintiff with changing the dressing on his
surgical wound. Defs.' L.R. 56(a)1 Stmt. at ¶ 16.
Like Okonkwo, however, Walton has no recollection of treating
the plaintiff. Id. at ¶ 18; Aff. of Nurse Nancy
Walton (“Walton Aff.”) (ECF No. 42-2) at ¶
10. The plaintiff alleges that Walton refused to change his
colostomy bag on October 16, 2011, after it had broken open.
Pl.'s L.R. 56(a)1 Stmt. at ¶ 9; Defs.' L.R.
56(a)1 Stmt. at ¶ 17. It was Walton's usual and
customary practice to provide patients with materials and
supplies to change their colostomy bags. Walton Aff. at
¶ 22. According to Walton's review of the Department
of Correction Unit Log, the plaintiff notified correction
officers around 8:00 p.m. on October 16 that the adhesive
tape had come off his colostomy bag and needed to be
reapplied. See Id. at ¶ 30; Defs.' Ex. 4
(ECF No. 50-6) at 2. The correction officer spoke with Walton
who informed him that Nurse Elizabeth would help the
plaintiff. Walton Aff. at ¶ 30; Defs.' Ex. 4 at 2.
Nurse Elizabeth then instructed the plaintiff to go to the
medical unit. Walton Aff. at ¶ 30; Defs.' Ex. 4 at
2-3. Medical records show that the plaintiff was seen by the
medical unit the next morning and that his dressing was
changed. Walton Aff. at ¶ 44; Defs.' Ex. 2 at 9.
August 9, 2012, the plaintiff filed a written request with
the State of Connecticut Office of the Claims Commissioner to
sue the State of Connecticut for negligence based on
inadequate medical treatment. Pl.'s L.R. 56(a)1 Stmt. at
¶ 4; Pl.'s Ex. D (ECF No. 19-7). In that request,
the plaintiff alleged that he had complained to a nurse on
August 4, 2011, that he was in pain. Pl.'s Ex. D. He did
not, however, mention either Okonkwo or Walton by their first
or last names in that complaint. See Defs.' L.R.
56(a)1 Stmt. at ¶¶ 24-25. On July 30, 2013, the
State of Connecticut moved to dismiss the claim for lack of
subject matter jurisdiction, asserting that the injury
occurred outside the one-year time limitation established
under Conn. Gen Stat. § 4-148(a). Defs.' L.R. 56(a)1
Stmt. at ¶ 26. On September 18, 2015, the Claims
Commissioner issued a memorandum of decision authorizing the
suit against the State of Connecticut. Defs.' Ex. 10 (ECF
No. 50-11). The Commissioner found credible the
plaintiff's allegation that the State “breached its
duty of care to the [plaintiff] by failing to promptly
provide medical treatment despite intense pain and
suffering.” Id. at 3. However, the
Commissioner was not convinced that the plaintiff could prove
“substantial damages” from the alleged breach.
Id. There is no evidence in the record showing that
the plaintiff filed a civil action in state court following
the Claims Commissioner's authorization.
plaintiff did not file this action until November 21, 2016.
In his complaint, he alleged that the defendants violated his
Eighth Amendment protection against cruel and unusual
punishment by acting with deliberate indifference to his
serious medical needs. Specifically, he alleged that Okonkwo
acted with deliberate indifference by refusing to let him see
the doctor from August 4 to August 9, 2011, and that Walton
acted with deliberate indifference by refusing to change his
colostomy bag on October 16, 2011. The defendants did not