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Patterson v. Anna

United States District Court, D. Connecticut

January 9, 2018

NURSE ANNA, et al. Defendants.


          Michael P. Shea, U.S.D.J.

         On 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, [1] 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.[2] 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.

         On May 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.

         I. Relevant Legal Principles

         In a 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 omitted).

         When a 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).

         Where 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).

         II. Facts

         The following facts are taken from the parties' Local Rule statements and from the record. They are undisputed unless otherwise indicated.

         The 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 ¶ 7.

         On 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.

         Medical 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.

         On 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.

         The 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 ...

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