United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Castillo (“Plaintiff”), currently incarcerated at
Corrigan-Radgowski Correctional Institution, in Uncasville,
Connecticut, and proceeding pro se, has sued various
individual employees of the Connecticut Department of
Correction for denying him appropriate medical treatment
under the Eighth Amendment and retaliation under the Fifth
Amendment to the U.S. Constitution.
now move for summary judgment.
following reasons, the motion is GRANTED in
part and DENIED in part.
FACTUAL AND PROCEDURAL BACKGROUND
January 31, 2011, Mr. Castillo submitted a request to receive
medical treatment. Pl.'s L.R. 56(a)2 Stmt., ¶ 12,
ECF No. 54; Mem. Opp'n Mot. Summ. J., Ex. E, ECF No. 53
at 96. He complained that his nose had been congested for
three weeks and he was having trouble breathing. Mem.
Opp'n Mot. Summ. J., Ex. E, ECF No. 53, at 96. Mr.
Castillo stated that he thought that he might have a nasal
infection. Id. On February 3, 2011, a nurse examined
Mr. Castillo and referred Mr. Castillo to see a physician for
further evaluation. Defs.' L.R. 56(a)1 Stmt., ¶ 8,
ECF No. 48-2.
February 11, 2011, Mr. Castillo completed and submitted a
Health Services Review request regarding diagnosis of and
treatment for his nasal congestion and symptoms associated
with that condition. Id., Attach. 3 at 6-7, ECF No.
48-6. In it, he noted that the decongestant and allergy
tablets that the nurses had given to him had not relieved his
symptoms. Id. at 7.
February 14, 2011, in response to Mr. Castillo's
complaint that he had not been seen by the medical department
for almost two weeks, Lieutenant Bernard asked a nurse in the
medical department whether Mr. Castillo was scheduled to see
a physician. Id., Attach. 1 at 62, ECF No. 47;
Pl.'s L.R. 56(a)2 Stmt., ¶¶ 10-12, ECF No. 54.
A nurse informed Lieutenant Bernard that Mr. Castillo had
been examined by the nursing staff and was on the list to see
a physician on February 17, 2011. Id., Attach. 1 at
62, ECF No. 47; Pl.'s L.R. 56(a)2 Stmt., ¶ 13, ECF
February 15, 2011, Nurse/Medical Grievance Coordinator Vickie
Garcia received Mr. Castillo's Health Services Review
request dated February 11, 2011. Id., Attach. 1 at
62, ECF No. 47; Attach. 3 at 6-7, ECF No. 48-6. She noted
that Mr. Castillo was on the list to be seen by a physician
on February 17, 2011. Id., Attach. 1 at 62, ECF No.
47. Mr. Castillo did not go to his medical appointment on
February 17, 2011. Id., Attach. 1 at 62, ECF No. 47;
Pl.'s L.R. 56(a)2 Stmt., ¶ 13, ECF No. 54. Medical
staff re-scheduled Mr. Castillo's appointment to see a
physician. Defs.' L.R. 56(a)1 Stmt., ¶ 12, ECF No.
same day as the originally scheduled appointment, prison
officials placed Mr. Castillo in the restrictive housing unit
due to an investigation into gang activity at Cheshire.
Pl.'s L.R. 56(a)2 Stmt., ¶ 15, ECF No. 54; Pl.'s
Aff., ¶ 16, ECF No. 53-1; Defs.' L.R. 56(a)1 Stmt.,
Attach. 1 at 60-61, ECF No. 47. On February 24, 2011,
Officers Hogan and Johnson and Lieutenant Smith questioned
Mr. Castillo in connection with the investigation. Pl.'s
Aff., ¶ 24, ECF No. 53-1. Mr. Castillo refused to answer
any questions or cooperate with the investigation.
Id. During his week-long confinement in the
restrictive housing unit as well as during the interrogation,
Mr. Castillo informed Officers Hogan and Johnson and
Lieutenant Smith that Mr. Castillo was ill and in need
medical treatment, but they allegedly refused to arrange for
treatment. Id., ¶¶ 17, 24-25. Prison
officials released Mr. Castillo from the restrictive housing
unit on February 24, 2011. Defs.' L.R. 56(a)1 Stmt.,
Attach. 2 at 6, ECF No. 48-5.
March 7, 2011, Dr. Ruiz examined Mr. Castillo in response to
his complaints of sinus congestion, nasal discharge, and a
bad smell in his nose. Defs.' L.R. 56(a)1 Stmt. ¶
13, ECF No. 48-2; Attach. 1 at 62, ECF No. 47; Attach 3 at 7,
ECF No. 48-6. Dr. Ruiz noted that Mr. Castillo had been
treated for a nasal fracture in 2002 at Hartford Hospital.
Id., Attach. 1 at 62, ECF No. 47. Dr. Ruiz ordered
that Mr. Castillo undergo x-rays of his sinuses and indicated
that he would follow-up with Mr. Castillo. Id.,
Attach. 1 at 62, ECF No. 47; Attach. 3 at 7, ECF No. 48-6.
April 11, 2011, Dr. Ruiz noted that the x-rays of Mr.
Castillo's sinuses were negative and showed no air fluid
levels. Dr. Ruiz prescribed a nasal spray to be used twice a
day for ninety days, medication for pain to be used for
ninety days, and referred Mr. Castillo for lab work.
Id., Attach. 1 at 59, ECF No. 47.
5, 2011, a nurse examined Mr. Castillo for an injury to his
jaw. Id. On June 3, 2011, a nurse examined Mr.
Castillo due to his complaints of hives on his body.
Id. at 58. The nurse prescribed Benadryl to treat
Mr. Castillo's symptoms. Id.
3, 2011, Dr. Ruiz examined Mr. Castillo due to his complaints
of sinus congestion. Id., Ex. D, ECF No. 53 at 91.
Dr. Ruiz observed nasal discharge and that Mr. Castillo moved
air well through his nose. Id. He referred Mr.
Castillo for sinus x-rays to determine the existence of air
fluid levels in Mr. Castillo's nasal passages.
Id. He noted that, if air fluid levels were present,
he would prescribe an antibiotic. Id. He recommended
that Mr. Castillo return to be seen by a physician in a week.
14, 2012, in response to Mr. Castillo's inmate request,
Nurse Boiano examined Mr. Castillo due to his complaints of
nasal congestion and nasal discharge. Id., Attach. 3
at 3, ECF No. 48-6. Nurse Boiano noted that Mr. Castillo had
requested that a physician renew his prescription for nasal
spray. Id., Attach. 1 at 57, ECF No. 47. Nurse
Boiano distributed allergy tablets to Mr. Castillo, placed
him on a list to see a physician and left a note for Dr. Ruiz
to renew the prescription for nasal spray. Id.
15, 2012, a nurse examined Mr. Castillo in response to his
claim that he was experiencing an allergic reaction to
medication. Id. The nurse concluded that Mr.
Castillo had not suffered from an allergic reaction.
Id. at 56-57. The nurse noted a bruise on the back
of one of Mr. Castillo's thighs and advised Mr. Castillo
to contact the medical department if the bruise did not
resolve. Id. On May 17, 2012, Dr. Ruiz renewed the
prescription for nasal spray for ninety days. Mem. Opp'n
Mot. Summ. J., Ex. D, ECF No. 53, at 78. At the end of May
2012, Dr. Ruiz prescribed Claritin to Mr. Castillo for ninety
days. Id. at 82.
6, 2012, Mr. Castillo submitted a Health Services Review
request regarding the diagnosis of and treatment for his
nasal condition. Id., Ex. B, ECF No. 53 at 54-55. He
stated that a nurse had examined him on May 14, 2012, had
diagnosed him as suffering from allergies and had put him on
the list to see a physician. Id. Mr. Castillo
indicated that he was filing a grievance because it had been
almost three weeks and he had not been examined by a
physician. Id. Mr. Castillo indicated that he was
experiencing nasal discharge, headaches, and congestion in
his ears. He sought treatment from an ear, nose, and throat
response to the Health Services Review request, Medical
Grievance Coordinator Sheryl Estrom met with Mr. Castillo on
June 21, 2012. Id. She explained the difference
between allergies and a sinus infection and noted that she
would refer Mr. Castillo to a physician for diagnosis and
19, 2012, Dr. O'Halloran examined Mr. Castillo.
Id. Mr. Castillo stated that he had experienced a
foul smell and taste in his mouth and thick sinus discharge
for more than a year and that antihistamines had only
resulted in drier secretions. Id. The results of Mr.
Castillo's sinus x-rays were not available. Id.
Dr. O'Halloran prescribed an anti-biotic to be taken for
fourteen days to treat Mr. Castillo's sinus symptoms.
Id. The anti-biotic alleviated Mr. Castillo's
sinus congestion and associated symptoms. Pl.'s Aff.,
¶ 34, ECF No. 53-1.
Castillo filed a Complaint with this Court under 42 U.S.C.
§ 1983, asserting multiple claims against forty-nine
employees of the Department of Correction. See
Compl., ECF No. 1. On March 9, 2015, Mr. Castillo filed an
Amended Complaint, naming Correctional Officers J. Hogan,
Johnson, John Doe 1 and John Doe 2, Lieutenants Smith, John
Doe 1 and John Doe 2, Warden Jon Brighthaupt, Deputy Warden
Powers, Nurses Vickie Garcia, Jane Doe 1, Jane Doe 2 and Jane
Doe 3, Nursing Supervisor C. Durato, Medical Supervisor B.
Stewart, Medical Grievance Coordinator Sheryl Estrom, Dr.
Ricardo Ruiz and Health Services Administrator S. Brown as
defendants. See Am. Compl., ECF No. 10.
April 30, 2015, under 28 U.S.C. § 1915A(b)(1), the Court
dismissed all claims against Brighthaupt and Powers and
concluded that the Eighth Amendment claims of deliberate
indifference to medical needs and the state law claims of
negligence/malpractice would proceed against all other
defendants and the Fifth Amendment retaliation claim would
proceed against defendants Smith, Hogan and Johnson.
See Initial Review Order, ECF No. 11. On February
22, 2016, the Court granted Defendants' motion to dismiss
as to all state-law claims and denied the motion as to the
federal claims. See Ruling, ECF No. 27.
31, 2016, Mr. Castillo filed a Second Amended Complaint to
re-assert his claims against defendants Correctional Officers
Hogan and Johnson, Lieutenant Smith, Dr. Ruiz, Nursing
Supervisor Durato, Medical Supervisor Stewart, Medical
Grievance Coordinator Estrom, Health Services Administrator
Brown and Nurse/Medical Grievance Coordinator
Garcia and to identify the Doe defendants as:
Correctional Officer Mack, Correctional Officer Bartley,
Correctional Officer Waterford, Lieutenant Guzman, Lieutenant
John Bernard, Captain Bouffard, Nurse Pauline Husband and
Nurse Kathy Saraceno. See Second Am. Compl., ECF No.
35. The Second Amended Complaint is the operative complaint.
now move for summary judgment.
STANDARD OF REVIEW
motion for summary judgment, the burden is on the moving
party to establish that there are no genuine issues of
material fact in dispute and that it 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 is
“genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on it.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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).
Thus, the party opposing the motion for summary judgment
“must come forward with specific evidence demonstrating
the existence of a genuine dispute of material fact.”
reviewing the record, the court must “construe the
evidence in the light most favorable to the non-moving party
and to draw all reasonable inferences in its favor.”
Gary Friedrich Enters., L.L.C. v. Marvel Characters,
Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation
omitted). If there is any evidence in the record from which a
reasonable factual inference could be drawn in favor of the
opposing party on the issue on which summary judgment is
sought, however, summary judgment is improper. See
Security Ins. Co. of Hartford v. Old Dominion Freight Line
Inc., 391 F.3d 77, 83 (2d Cir. 2004).
one party is proceeding pro se, the court reads the
pro se party's papers liberally and interprets
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 or summary judgment. Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000).
assert three arguments in support of their motion. They
contend that: (1) the retaliation claim and the medical
treatment claim are barred by the statute of limitations; (2)
the medical treatment and retaliation claims are not
exhausted; and (3) they were not deliberately indifferent to
Mr. Castillo's serious medical need.
Exhaustion of Administrative Remedies
argue that Mr. Castillo failed to properly exhaust his
administrative remedies as to the retaliation claim because
he filed a grievance more than thirty days after the alleged
retaliatory conduct occurred. Mr. Castillo argues that
Defendants waived their claim that he did not properly
exhaust his administrative remedies. The Court agrees.
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all
“administrative remedies as are available” before
bringing an “action . . . with respect to prison
conditions.” The Supreme Court held that this provision
requires an inmate to exhaust administrative remedies before
filing any type of action in federal court, see Porter v.
Nussle, 534 U.S. 516, 532 (2002), regardless of whether
the inmate may obtain the specific relief he desires through
the administrative process. See Booth v. Churner,
532 U.S. 731, 741 (2001).
the PLRA requires “proper exhaustion” which
includes complying with all “procedural rules, ”
including filing deadlines, as defined by the particular
prison grievance system. Woodford v. Ngo, 548 U.S.
81, 90-91 (2006). Thus, “untimely or otherwise
procedurally defective attempts to secure administrative
remedies do not satisfy the PLRA's exhaustion
requirements.” Ruggiero v. County of Orange,
467 F.3d 170, 176 (2d Cir. 2006) (quoting Woodford,
548 U.S. at 83-84).
Ross v. Blake, __U.S.__, 136 S.Ct. 1850 (2016), the
Supreme Court rejected the judicially created special
exceptions to the exhaustion requirement of the PLRA. See
Id. at 1362 (“Courts may not engraft an unwritten
‘special circumstances' exception onto the
PLRA's exhaustion requirement.”). The Court
concluded that the PLRA includes a single “textual
exception”-that an inmate must only exhaust remedies
that are “available.” Id. at 1858. Thus,
aside from the availability of remedies to a prisoner, there
are “no limits on an inmate's obligation to
exhaust-irrespective of any ‘special
circumstances.'” Id. at 1856. The Supreme
Court described three scenarios in which administrative
procedures are officially adopted by a prison facility but
are not capable of use to obtain relief for the conduct
complained about, and therefore are unavailable. Id.
at 1859. First, an administrative remedy may be unavailable
when “it operates as a simple dead end-with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates.” Id. Second, “an
administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use” because an
“ordinary prisoner can[not] discern or navigate
it” or “make sense of what it demands.”
Id. (citations omitted). Third, an administrative
remedy may be unavailable “when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or
intimidation.” Id. at 1860.
to exhaust administrative remedies under 42 U.S.C. §
1997e(a) is an affirmative defense. See Jones v.
Bock, 549 U.S. 199, 215 (2007). Thus, Defendants have
the burden to prove that Mr. Castillo has not exhausted his
claim prior to filing this action. See Johnson v.
Mata, 460 Fed. App'x 11, 15 (2d Cir. 2012)
(“The defendants have the burden of showing that there
is no genuine issue of material fact as to exhaustion that
would preclude summary judgment.”).
administrative remedies for the State of Connecticut
Department of Correction are set forth in Administrative
Directive 9.6, entitled Inmate Administrative Remedies.
See Defs.' L.R. 56(a)1 Stmt., Attach. 4, ECF No.
48-7 (Administrative Directive 9.6, Effective January 31,
2009). The type of remedy available to an inmate depends on
the nature of the issue or condition experienced by the
inmate or the decision made by correctional personnel. For
all matters relating to any aspect of a prisoner's
confinement that are subject to the Commissioner's
authority and that are not specifically identified in
Sections 4(B) through 4(I) of Administrative Directive 9.6,
the applicable remedy is the Inmate Grievance Procedure set
forth in subsection (6). Thus, claims regarding conditions of
confinement are subject to the Inmate Grievance Procedure.
Administrative Directive 9.6(6), an inmate must first attempt
to resolve the matter informally. The inmate may attempt to
verbally resolve the issue with an appropriate staff member
or supervisor. See Id. at 9.6(6)(A). If attempts to
resolve the matter orally are not effective, the inmate must
make a written attempt using a specific form and send that
form to the appropriate staff member. See Id. If all