United States District Court, D. Connecticut
Rey M. Ortiz Martinez, Plaintiff,
Salai, et al., Defendant.
ORDER GRANTING MOTION TO WITHDRAW ADMISSIONS AND
DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT
Vanessa L. Bryant United States District Judge
the Court is Plaintiff's Motion to Withdraw Admissions
[Dkt. 46.] which Defendants have opposed [Dkt. 52.] For the
reasons set forth below, Plaintiff's Motion is GRANTED
and Defendant's Motion for Summary Judgment [Dkt. 28] is
DENIED without prejudice to refiling.
Plaintiff brought this action pro se alleging
excessive use of force and medical malpractice on September
2, 2016. [Dkt. 1.] After an initial review order,
Plaintiff's excessive force claim was allowed to proceed
against Defendants Johnson, Starks, and Marac and his claim
arising out of medical treatment, interpreted by the Court as
a deliberate indifference claim, was allowed to proceed
against Defendant Johnson. [Dkt. 8.] The Court granted
Plaintiff's motion to appoint counsel on December 1, 2016
[Dkt. 15], and attorney James Green appeared to represent
Plaintiff on June 15, 2017. [Dkt. 26.] In the intervening
period, on April 21, 2017, Defendants sent Plaintiff Requests
for Admission which concerned the February 21, 2014
altercation which is the subject of Plaintiff's
Complaint, Plaintiff's drug use, his history of
psychiatric treatment, and his alleged failure to comply by
the Department of Corrections' administrative remedy
procedures. [Dkt. 28-3.] Plaintiff, then unrepresented by
counsel, did not respond to the requests for admissions.
21, 2017, Defendants moved for summary judgment as to both of
Plaintiff's claims both on the merits and for failure to
exhaust administrative remedies. [Dkt. 28-1.] Defendants
cited three pieces of evidence in support of their motion:
the unanswered requests for admission, and Department of
Corrections Administrative Directives 9.6 and 8.9, which
outline relevant exhaustion procedures. [Dkt. 28-3, 28-4,
28-5.] On August 4, 2017, the Court granted the parties'
joint motion to stay proceedings in light of Attorney
Green's recent appearance on behalf of the Plaintiff, to
allow the parties to confer regarding withdrawing
Plaintiff's default admissions, and to allow Attorney
Green time to familiarize himself with the case and either
resolve the case out of court or prepare a response to the
pending summary judgment motion. [Dkt. 39.] On January 22,
2018, Attorney Green filed a motion to withdraw admissions.
[Dkt. 46.] The Court lifted the stay on January 25, 2018.
[Dkt. 48.] On February 2, 2018, Defendants filed an
opposition to the motion to withdraw admissions. [Dkt. 52.]
Plaintiff filed a reply in further support on February 16,
2018. [Dkt. 58.]
Exhibits to Defendants' Opposition
have submitted four exhibits in support of their opposition
to the motion to withdraw, each of which concerns the
February 21, 2014 altercation. Two of those exhibits are
video recordings. The first video, recorded by Corrections
Officer Dunn, shows Corrections Officer Johnson standing
outside Plaintiff's cell on February 21, 2014 at 7:00pm.
The door to the cell is closed and Plaintiff is not visible.
Officer Johnson states Plaintiff is wearing hand restraints
and refusing to take them off, and an on-call medical
professional has deemed him in need of an injection due to
erratic behavior. Id. at 0:16. Officer Johnson
states a team of officers is suiting up to assist with giving
that injection. As Officer Johnson speaks, Plaintiff can be
heard yelling in Spanish. Id. Officer Johnson then
turns to Plaintiff and says “do me a favor, sit on your
bunk.” Id. Plaintiff responds “I need
some water.” Id. Johnson responds “sit
on your bunk for me first.” Id. Plaintiff says
“I don't need to sit down.” Id.
Plaintiff's face can then be seen through the window to
his cell; he appears not to be wearing a shirt, and is
singing in Spanish. Id. at 50. Officer Johnson
attempts multiple times to engage Plaintiff in conversation
or get him to sit on his bunk; Plaintiff is unresponsive and
continues singing. Id. at 1:30.
second video shows four corrections officers preparing to
confront Plaintiff on February 21, 2014 at 7:30pm to
administer a medical injection. The officers are named as
Marac, Seeley, Starks, Wolmy, with Mattias recording the
video and officer Zayas providing instructions. Plaintiff can
be heard yelling in Spanish before the officers enter, but
Plaintiff is not visible on the video before the officers
enter. Before entering, Officer Zayas states “Ortiz,
we're giving you a last and final direct order: sit on
your bunk.” Id. at 3:05. Plaintiff is still
not visible on the video, but continues yelling. Id.
Officer Zayas orders the cell door to be opened and the four
officers enter quickly. Id. at 3:08. The video then
shows the four officers bending down in the corner of the
cell with a fifth officer overseeing them. Id. at
3:11. Plaintiff cannot be seen on the video, but can be heard
calmly stating “I'm basically down, man. I'm
basically down.” Id. at 3:15. Plaintiff then
yells in Spanish and can be heard yelling “ow!”
Id. at 3:25. Another individual wearing scrubs then
enters and leans over next to Plaintiff. Id. at
3:35. The video does not show the physician's hands.
Plaintiff yells “no!” Id. at 3:39. The
physician then announces, “sharp in, ” raises a
needle within view of the video camera, lowers the needle
from view, announces “sharp out, ” and exits.
Id. at 3:50. Officer Zayas instructs him to lay on
his back, and Plaintiff responds that he will not; Plaintiff
tries multiple times to get up, and the officers continue
attempting to restrain him. Id. at 4:07. Officer
Zayas then tells Plaintiff to relax, and states the officers
are going to remove his handcuffs. Id. at 4:50.
Plaintiff agrees. Id. The officers crowd around
Plaintiff again, who is on the ground in the corner of the
cell out of view of the camera. Id. at 4:59.
Plaintiff begins urgently repeating “take them
off!” Id. Officer Zayas states “listen
to me, stop, we're taking them off, relax!”
Id. Officer Zayas “stay right where you are,
do not move, understand?” Plaintiff responds
“yes! Alright!” Id. at 5:01. After
repeating that exchange multiple times, the officers back
away from Plaintiff, who appears naked, and close the cell
door as Plaintiff stands in front of them with his arms up.
Id. at 5:46. Plaintiff can be heard yelling again as
the officers walk away. Id. At 5:55.
also offer an incident report dated February 21, 2014, in
which the Department of Corrections officers involved in the
incident describe their version of events as consistent with
the narrative asserted in Defendants' motion for summary
judgment: that Plaintiff was “refusing to take his
medication and was acting erratic and kicking the cell door
and banging on the window, ” and DOC employees
responded by entering his cell, restraining him, and calling
the on-call physician to administer a medical injection.
[Dkt. 52-1 at 4.]
Defendants offer excerpts from Plaintiff's medical
records including an entry dated February 21, 2014 which
describes Plaintiff as “paranoid” and states he
held a pen “as a weapon” during his medical
appointment, at which point two lieutenants, a captain, and
several corrections officers removed Plaintiff. [Dkt. 51 at
3-4.] Plaintiff then “bang[ed]/punche[d] [the] screen
and door with considerable force” and exhibited
“posturing such that [Plaintiff] [was] definitely [a]
danger [to] others.” Id. at 4. The Court does
not have video footage of this altercation.
Standard of Law
“A party may serve on any other party a written request
to admit . . . the truth of any matters within the scope of
Rule 26(b)(1) relating to: (A) facts, the application of law
to fact, or opinions about either; and (B) the genuineness of
any described documents.” Fed.R.Civ.P. 36(a). “A
matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to
the matter and signed by the party or its attorney.”
Id. The Court may permit withdrawal of an admission
“if it would promote the presentation of the merits of
the action and if the Court is not persuaded that it would
prejudice the requesting party in maintaining or defending
the action on the merits.” Fed.R.Civ.P. 36(b).
prejudice contemplated by Rule 36(b) is not merely that the
party obtaining the admission must, as a consequence of the
withdrawal, prove the matter admitted but rather relates to
difficulties the party may face in proving its case, such as
the availability of key witnesses.” Rosenbaum v.
Farr, 3:11-cv-1994, 2013 WL 6860102, at *1 (D. Conn.
Dec. 30, 2013) (allowing withdrawal of default admissions
where responses to admission were filed late). Prejudice
under Rule 36(b) generally exists where the party will face a
“sudden need to obtain evidence upon withdrawal or
amendment of an admission.” Vandever v.
Murphy, 3:09-cv-1752, 2012 WL 5507257, at *2 (D. Conn.
Nov, 14, 2012) (admonishing defendants for failing to abide
by deadlines, but permitting withdrawal of default
admissions, where defendants did not serve responses to
requests for admission until four months ...