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Perez v. Arnone

United States District Court, D. Connecticut

July 26, 2018

LEO ARNONE, et al. Defendants.



         This case is a pro se civil rights action filed by Plaintiff Ometrius Perez against the Connecticut Department of Correction (“DOC”) and various individuals.[1] Mr. Perez asserts violations of his rights under the Eighth Amendment and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Before this Court is Defendants' supplemental motion for summary judgment raising a failure to exhaust administrative remedies defense under the Prison Litigation Reform Act (“PLRA”). The Court previously denied Defendants' initial motion for summary judgment on all grounds, but Defendants did not brief the failure to exhaust administrative remedies defense. Jury selection is set for August 28, 2018, and the Court now addresses the failure to exhaust issue in anticipation of trial. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.


         An analysis of this supplemental summary judgment motion requires a review of the procedural posture and the relevant facts.

         I. Procedural Posture

         Mr. Perez filed this action pro se on November 9, 2012, raising violations of claims under 42 U.S.C. § 1983 for violations of the Eighth Amendment and the ADA. [Dkt. 1 (Compl.)]. In brief, Mr. Perez is legally blind and claims he was denied his medical auxiliary aids and adaptive equipment, which he possessed while incarcerated by the State of New York but which were confiscated after his transfer to the DOC system. He suffers from post-traumatic stress disorder (“PTSD”) and anxiety disorder and requests to be housed in a single cell with his auxiliary aids and adaptive equipment. While in the restrictive housing unit (“RHU”) in MacDougall Walker Correctional Institution (“MWCI”), Mr. Perez did not have contact lenses or eyeglasses (they were confiscated), and he claims he was escorted by a correctional officer to a flight of stairs, which he then fell down and sustained injuries to his left wrist and left knee. Mr. Perez also claims he was denied job opportunities because of his disability.

         The Court issued an Initial Review Order in May 2013, dismissing all claims against Lt. Alexander, CTO Blanchard, Mr. Roy, Connecticut Managed Health Care, and Correctional Enterprises of Connecticut; the § 1983 claims against the DOC; and the ADA claims against the individual Defendants in their individual capacities. See [Dkt. 7]. Mr. Perez appealed this ruling, [Dkt. 8 (IRO Appeal)], but the Second Circuit dismissed the appeal on November 13, 2013, for lack of jurisdiction as the IRO was not a final decision under 28 U.S.C. § 1291. [Dkt. 20 (IRO Summ. Order)].

         Around the same time Mr. Perez initiated the action, he also filed a Motion for Preliminary Injunction and Temporary Restraining Order. [Dkt. 5]. The Court ultimately granted in part and denied in part the motion on February 28, 2014. [Dkt. 27 (Order)]. Specifically, the Court granted Mr. Perez's motion as to his claim regarding prescription glasses and denied the motion in all other respects. Id. Mr. Perez appealed this ruling, [Dkt. 30 (Not. Appeal)], and Defendants moved to stay the case pending the outcome of the appeal, [Dkt. 35 (Mot. Stay)], which the Court denied in consideration of the fact the appeal was interlocutory and there did not exist any circumstances warranting a stay, [Dkt. 36 (Order)].

         The Court entered a Scheduling Order accordingly, which contemplated summary judgment briefing due on July 18, 2014; a joint trial memorandum due March 2, 2015; and jury selection on April 7, 2015. See [Dkt. 37]. Defendants filed their summary judgment briefing on July 21, 2014. Defendants moved for judgment on all claims and argued that (1) Mr. Perez's legal blindness was not a serious medical need and the DOC was not deliberately indifferent to his needs; (2) Mr. Perez received reasonable accommodations under the ADA through Connecticut Services for the Blind; (3) Mr. Perez does not have a constitutional right to a single cell; and (4) Mr. Perez does not have a constitutional right to a prison job. [Dkt. 38-1 (Mem. Mot. Summ. J.)]. Mr. Perez opposed this motion and the Court denied summary judgment on all grounds on March 26, 2015. The Court also ordered counsel to be appointed to Mr. Perez in anticipation of trial, and counsel from Carmody Torrance Sandak & Hennessey, LLP entered appearances on April 28, 2015, and June 4, 2015.

         While the summary judgment motion was pending, the Second Circuit affirmed in part and vacated in part this Court's ruling on the Motion for Preliminary Injunction and Temporary Restraining Order on March 5, 2015. See [Dkt. 53 (Prelim. Inj. and TRO Summ. Order)]. The Court held the first hearing on December 14, 2015. The next hearing was set for February 29, 2016, but was rescheduled and held on April 29, 2016.

         On May 5, 2016, Defendants requested permission to file supplemental summary judgment briefing to afford them the opportunity to argue certain Defendants were not personally involved and should not be parties in the action, which Defendants acknowledged they did not raise in the initial summary judgment briefing. [Dkt. 129 (Mot. Supp. Summ. J.)]. The Court denied this motion and stated it would not grant Defendants a “second bite at the apple by allowing serial dispositive motions.” [Dkt. 132 (Order)].

         After issuing this denial, the Court continued to hold evidentiary hearings on the Motion for Preliminary Injunction and Temporary Restraining Order. It held a third preliminary injunction hearing on May 26, 2016 and set the fourth hearing for June 20, 2016; this hearing was continued upon Mr. Perez's request and on the same day the Court relieved Mr. Perez's counsel of their pro bono duties. [Dkt. 148 (Continuance Order); Dkt. 149 (Attorney Withdrawal Order)]. The Court held the fourth and fifth hearings on December 20 and 22 of 2016.

         Attorney Norman Pattis entered an appearance on January 19, 2017. [Dkt. 180 (Not. Appearance)]. The sixth hearing was scheduled for February 6, 2017, but it was postponed to afford the parties the opportunity to engage in settlement. The case did not settle, so the Court set the seventh evidentiary hearing for November 21, 2017. By and through counsel, Mr. Perez moved to continue the hearing upon which the Court scheduled a telephonic conference for December 6, 2017, to discuss the continuance and the case schedule.

         During the telephonic conference, the Court asked whether it would behoove the parties, in light of the age of the case, to proceed to trial. Attorney Pattis and Attorney Beizer agreed that this would be in the best interest of all parties. Attorney Beizer renewed his request to file supplemental summary judgment briefing to “pair down” the number of Defendants, and Attorney Pattis did not object. The Court granted permission for the parties to meet and confer and propose a briefing schedule. Instead, Attorney Beizer filed a Motion to File Supplemental Motion for Summary Judgment on the grounds of PLRA exhaustion along with an accompanying supplemental summary judgment motion. The Court granted this request and now addresses the supplemental briefing.

         II. Exhausting Remedies Under Administrative Directives

         The DOC utilizes various administrative directives to govern the policies and procedures for inmates filing administrative claims. In general, an inmate makes an initial request and upon a denial may undergo a multi-step appeals process. The exact procedure and applicable administrative directive differs between his reasonable accommodations requests and his deliberate indifference claims. The Court will assess the claims Mr. Perez allegedly failed to exhaust in the context of each administrative directive.

         A. Administrative Directive 10.19

         Administrative Directive 10.19 governs the needs of inmates with disabilities under the ADA.[2] An inmate seeking reasonable accommodations may first issue a request to the ADA Coordinator by submitting an oral or written request to a staff person. See Id. § 7(A)(1). The DOC must act upon the request within two days and “[i]f the request is denied, the inmate shall be notified in writing and advised of the right to review the disposition directly with the Unit ADA Coordinator.” See Id. § 7(B), (C). An inmate who requests to meet with the Unit ADA Coordinator must meet with the inmate within 24 hours and the Unit ADA Coordinator must re-evaluate and issue a decision within one week. “If the disposition has not changed, the inmate shall be advised of the right to appeal the decision in accordance with Administrative Directive 9.6, Inmate Administrative Remedies.” See Id. § 7(C).

         B. Administrative Directive 9.6

         In general, all other requests “for an inmate who seeks formal review of an issue relating to any aspect of an inmate's confinement that is subject to the Commissioner's authority, ” are governed by Administrative Directive 9.6. This particular administrative directive “enables the Department to identify individual and systemic problems, to resolve legitimate complaints in a timely manner and to facilitate the accomplishment of its mission.” [Dkt. 221-2 (Mot. Supp. Summ. J. Attachment 1, Administrative Directive 9.6), § 1].[3] Administrative Directive 9.6 requires an inmate to go through an Informal Resolution process by attempting to resolve the issue verbally with the appropriate staff member or supervisor/manager. See Id. ยง ...

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