Ramirez v. Allen

          RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Michael P. Shea United States District Judge.

         The plaintiff, Felix Ramirez, commenced this civil rights action asserting claims for violation of various federal and state constitutional rights and state tort law. Following the Court's initial review of the complaint, the following claims remained: Fourth and Eighth Amendment claims against defendant Allen for the October 30, 2015 pat down search; a supervisory liability claim against defendant Guadarrama for failing to prevent defendant Allen's acts on October 30, 2015, when he knew of past sexual misconduct allegations against her including similar conduct; an Eighth Amendment failure to protect claim against defendant Nordby for failing to protect the plaintiff from defendant Allen's improper touching on October 30, 2015; First Amendment retaliation claims against defendants Allen, Williams and several Does based on defendant Allen's issuance of an allegedly false disciplinary report when the plaintiff told her he intended to file a PREA complaint and the use of tight handcuffs under defendant Williams' supervision; Eighth Amendment excessive force claims and state tort claims against defendant Williams and several Does for tight handcuffs and painfully manipulating his arms on October 30, 2015; Eighth Amendment deliberate indifference claims against defendants Botas, Greene and doctor Doe for failure to provide or arrange for mental health treatment on October 30, 2015; Fourteenth Amendment due process claims against defendants Richardson and Claudio relating to the November 16, 2015 disciplinary hearing; an Eighth Amendment failure to protect claim against defendant Blatchelly; an Eighth Amendment failure to protect claim and state tort claims against defendant Doe for ordering the plaintiff to return to his cell after he reported that inmate Dobson had threatened his life; Eighth Amendment excessive force claims and state tort claims against defendants Guadarrama and several Does relating to the altercation with inmate Dobson; and Fourteenth Amendment due process claims against defendants Dubuque, Claudio, Hall and a Doe relating to the disciplinary report for fighting. See ECF No. 7 at 26.

         The remaining named defendants, Deputy Warden Guadarrama, Lieutenants Williams and Richardson, Captains Claudio and Hall, Correctional Officers Allen, Nordby, and Dubuque, Nurse Dionne Botas, CHNS Heidi Greene, and Blatchelly move for summary judgment. Instead of a response, the plaintiff filed a motion for appointment of counsel. For the reasons that follow, the plaintiff's motion is denied, the defendants' motion is granted, and the case is dismissed as to the unidentified Doe defendants. The plaintiff's state law claims are dismissed without prejudice.

         I. Standard of Review

         A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; see also Redd v. New York Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). “When the nonmoving party will bear the burden of proof at trial, the moving party can satisfy its burden at summary judgment by ‘pointing out to the district court' the absence of a genuine dispute with respect to any essential element of its opponent's case: ‘a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'” Cohane v. National Collegiate Athletic Ass'n, 612 Fed.Appx. 41, 43 (2d Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

         Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “‘rely on conclusory allegations or unsubstantiated speculation' but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.'” Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation omitted). He must present such evidence as would allow a jury to find in his favor in order to defeat the motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Although the court is required to read a self-represented “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), “unsupported allegations do not create a material issue of fact” and do not overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts^[1]

         The plaintiff, a Connecticut prisoner, has been housed at MacDougall-Walker Correctional Institution (“MacDougall”) since October 30, 2015. ECF No. 36-6, ¶ 1. On October 30, 2015, defendant Allen conducted a pat search of the plaintiff and, allegedly, groped the plaintiff's genitals during the search. Id., ¶ 2.

         That same day, the plaintiff made a complaint to defendants Williams against defendant Allen. The plaintiff argued that defendant Allen violated the Prison Rape Elimination Act (“PREA”) when she groped his genitals during the pat search. Id., ¶ 3. Also on October 30, 2015, the plaintiff saw defendant Botas in the medical unit. He told her about the PREA complaint and complained of emotional distress. Defendant Botas told defendant Greene, the head nurse, and the on-call physician. The plaintiff contends that these three individuals failed to provide or arrange for mental health treatment. Id., ¶ 4.

         While he was in the medial unit on October 30, 2015, the plaintiff saw Licensed Clinical Social Worker (“LCSW”) Maniram about his claim that defendant Allen had groped his genitals during the pat search. He was nervous and angry. The plaintiff told LCSW Maniram that he felt violated. LCSW Maniram determined that the plaintiff was mentally stable and coherent, and did not need further mental health treatment. As part of the standard PREA complaint procedure, LCSW Maniram ordered the plaintiff transferred to the restrictive housing unit (RHU). He was not ordered to the medical unit because he had no mental health issues, such as suicidal or homicidal ideation. Id., ¶ 5.

         Defendant Williams supervised the plaintiff's escort to RHU. The plaintiff alleges that the handcuffs were too tight and that the officers manipulated his arms to cause him pain. Id., ¶ 6.

         On October 30, 2015, defendant Allen issued the plaintiff a disciplinary report for disobeying a direct order to submit to a pat search. Id., ¶ 7. The disciplinary hearing was held on November 16, 2015. Defendant Richardson found the plaintiff guilty of disobeying a direct order. The plaintiff alleges that defendant Richardson did not permit him to call witnesses and intentionally misrepresented his testimony at the hearing. Id., ¶ 8.

         In April 2016, the plaintiff received a new cellmate, inmate Dobson. The plaintiff believed that inmate Dobson was mentally ill. Id., ¶ 9. The plaintiff alleges that he repeatedly told defendant Blatchelly that he was afraid of inmate Dobson, but defendant Blatchelly refused to move the plaintiff to another cell. Id., ¶ 10.

         The plaintiff alleges that, on May 7, 2016, he told a correctional officer that inmate Dobson had threatened his life, but the officer ordered the plaintiff to return to his cell. Inmate Dobson assaulted the plaintiff. Id., ¶11. During the assault, defendant Dubuque and several officers responded to the cell. The plaintiff was holding inmate Dobson in a bear hug on the floor. Defendant Dubuque ordered the plaintiff to release inmate Dobson. Once Dobson was released, defendant Dubuque sprayed the plaintiff with a chemical agent and the other officers assaulted him or failed to intervene to prevent the assault. Id., ¶ 12.

         The same day, defendant Dubuque issued the plaintiff a disciplinary report for fighting. On May 19, 2016, the plaintiff was found guilty of fighting. The hearing officer mitigated his sanctions. Id., ¶ 13. The guilty finding was upheld on appeal. Id., ¶ 14. The plaintiff alleges that defendant Claudio did not respond to his request for a copy of the appeal decision and defendant Hall refused to investigate his version of the events underlying the fight and ripped up his Inmate Request describing his version of the events. Id., ¶ 15.

         III. Discussion

         The defendants move for summary judgment on three grounds: (1) the plaintiff has not exhausted all available administrative remedies as to any of the claims asserted in this action; (2) the plaintiff was provided appropriate mental health care on October 30, 2015; and (3) defendants Dubuque, Claudio, Hall and one Doe defendant did not participate in the May 19, 2016 disciplinary hearing.

         A. Motion for Appointment of Counsel

         As an initial matter, the Court notes that, rather than opposing the motion for summary judgment, the plaintiff filed a motion for appointment of counsel. He states that he needs assistance filing an objection and calling witnesses at a hearing on the motion. The motion is denied for several reasons.

         As the Court explained in the ruling denying the plaintiff's previous motion, the Second Circuit repeatedly has cautioned the district courts against the routine appointment of counsel. See, e.g., Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 204 (2d Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997). The Second Circuit also has made clear that before an appointment is even considered, the indigent person must demonstrate that he is unable to obtain counsel. Saviano v. Local 32B-32J, 75 Fed.Appx. 58, 59 (2d Cir. 2003) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989)). In this motion, the plaintiff identifies the same three law firms he included in his first motion and repeats that Inmates' Legal Aid Program will not represent him. As the Court explained, Inmates' Legal Aid Program can provide assistance in responding to motions and would have been able to assist the plaintiff in responding to the defendants' motion for summary judgment. However, the plaintiff does not indicate that he requested such assistance. Thus, he cannot demonstrate an inability to obtain legal assistance on his own.

         In addition, the plaintiff states that he needs assistance filing an objection to the motion for summary judgment and having a hearing on it. The Court does not generally hold hearings on motions for summary judgment and no hearing was scheduled in this case. Thus, assistance with such a hearing is not needed. The defendants served a notice with their motion for summary judgment including directions for responding to the motion and warning that if he did not file opposition papers the motion would be granted.^[2] ECF ...