United States District Court, D. Connecticut
AMENDED [*] RULING RE: DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DOC. NO. 38) AND SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT (DOC. NO. 81)
C. Hall United States District Judge
plaintiff, Jose Garcia (“Garcia”), is currently
incarcerated at MacDougall-Walker Correctional Institution,
in Suffield, Connecticut. He initiated this action by filing
a pro se complaint pursuant to section 1983 of title
42 of the United States Code and Title II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12101, et seq., against the University of
Connecticut Health Care Center (“UCONN”), the
Department of Corrections (“DOC”), Commissioner
Scott Semple, Lieutenant Hurdle, Correctional Officers
Genise, Gray, Parnisakul, Burritt, Ross, and Byars, Clinical
Social Workers Marek and Bertulis, and Licensed Practical
Nurse Yerkes. See Complaint (“Compl.”)
(Doc. No. 1) at 1-3. The Complaint includes allegations
pertaining to Garcia's placement on in-cell restraints on
May 6, 2014, and his confinement on in-cell restraints until
May 7, 2014. See id. at 6-9.
the court are the Motion for Summary Judgment (Doc. No. 38)
and Supplemental Motion for Summary Judgment (Doc. No. 81)
filed by defendants Hurdle, Gray, Parnisakul, Burritt, Ross,
Byars, Marek, Bertulis, and Yerkes. For the reasons set forth
below, the Motions are GRANTED IN PART and
DENIED IN PART.
Initial Review Order on September 29, 2016, the court
dismissed the ADA claims, the section 1983 claim of verbal
harassment against Genise, the section 1983 claims against
Semple, UCONN, and DOC pursuant to section 1915A(b)(1) of
title 28 of the United States Code, and the claims for
monetary damages against all defendants in their official
capacities pursuant to section 1915A(b)(2) of title 28 of the
United States Code. See Initial Review Order (Doc.
No. 7). Thus, all claims against Genise, Semple, UCONN, and
DOC have been dismissed.
the Initial Review Order, three of Garcia's claims were
allowed to proceed: (1) an Eighth Amendment claim that
defendants Gray, Marek, Bertulis, and Yerkes were
deliberately indifferent to Garcia's mental health needs
when they refused to prescribe him medication or treatment
for his mental illness and instead punished him by placing
him in restraints; (2) an Eighth Amendment claim that
defendants Hurdle, Parnisakul, Burritt, Ross, and Byars were
deliberately indifferent to Garcia's safety and health
and subjected him to unconstitutional conditions of
confinement when they facilitated his placement on in-cell
restraints or applied the restraints in such a manner as to
cause him pain and prevent him from standing upright or using
the toilet; and (3) a First Amendment claim that defendants
Hurdle, Parnisakul, Burritt, Ross, and Byars placed him on
in-cell restraints for nine hours in retaliation for his
statement that he planned to file a lawsuit against the
mental health staff at GCI. Id. at 2-3, 9.
defendants filed a Motion for Summary Judgment (“Defs.
Mot. Summ. J.”) (Doc. No. 38) on September 8, 2017.
Garcia filed a Memorandum in Opposition (“Pl. First
Mem. in Opp'n”) (Doc. No. 59) on January 9, 2018.
In its Order for Further Briefing on June 11, 2018 (Doc. No.
69), the court concluded that, because Garcia was a pretrial
detainee when the events at issue occurred, his claims of
unconstitutional conditions of confinement are governed by
the Due Process Clause of the Fourteenth Amendment. Doc. No.
69 at 8. The court therefore construed Garcia as asserting
his deliberate indifference to medical needs and deliberate
indifference to health and safety claims under the Fourteenth
Amendment. The parties were asked to submit further briefing
of the case under the Fourteenth Amendment standard.
Id. On August 2, 2017, in response to the
court's Order for Further Briefing, the defendants filed
a Supplemental Motion for Summary Judgment (“Suppl.
Mot. Summ. J.”) (Doc. No. 81) and Supplemental
Memorandum of Law in Support (“Defs. Suppl. Mem. in
Supp.”) (Doc. No. 81, Attach. 1). Garcia filed a Second
Memorandum in Opposition (“Pl. Second Mem. in
Opp'n”) on September 7, 2018. See
generally Pl. Second Mem. in Opp'n (Doc. No. 83).
The defendants seek summary judgment on all remaining claims.
STANDARD OF REVIEW
motion for summary judgment, the moving party bears the
burden of establishing the absence of any genuine issue of
material fact. Zalaski v. City of Bridgeport Police
Dep't, 613 F.3d 336, 340 (2d Cir. 2010). If the
moving party satisfies that burden, the nonmoving party must
set forth specific facts demonstrating that there is ‘a
genuine issue for trial. Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009). A genuine issue exists where the
evidence is such that a reasonable jury could decide in the
non-moving party's favor. See, e.g., Rojas
v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104
(2d Cir. 2011) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, (1986)).
court's role at summary judgment “is to determine
whether genuine issues of material fact exist for trial, not
to make findings of fact.” O'Hara v. Nat. Union
Fire Ins. Co. of Pittsburgh, 642 F.3d 110, 116 (2d Cir.
2011). Unsupported 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). Additionally, the evidence
the court considers in ruling on a motion for summary
judgment must be admissible evidence, or evidence that could
be readily reduced to an admissible form at trial. See
LaSalle Bank National Ass'n v. Nomura Asset Capital
Corp., 424 F.3d 195, 205 (2d Cir. 2005); Santos v.
Murdock, 243 F.3d 681, 683 (2d Cir. 2001)
(“Affidavits submitted to defeat summary judgment must
be admissible themselves or must contain evidence that will
be presented in an admissible form at trial.”)
was an inmate at Garner Correctional Institution
(“GCI”) from April 8, 2013 through January 2,
2018. Defs. Suppl. L.R. 56(a) (Doc. No. 81-2) ¶ 4. On
May 6 and May 7, 2014, Garcia was a pretrial detainee.
Id. ¶ 1. On May 6, 2014, GCI staff attempted a
“verbal intervention” with Garcia for the purpose
of moving him from his cell in H Unit to a cell in F Unit, a
Restrictive Housing Unit (“RHU”) at GCI.
Id. ¶¶ 6-7, 12; Pl. Suppl. L.R. 56(a)
(Doc. No. 83-15) at 2 ¶ 7. GCI staff videotaped a
portion of the verbal intervention and Garcia's
subsequent transfer to F Unit. See DVD-GCI-V-14-274
(Doc. No. 38-14).
time of the verbal intervention, Garcia was agitated about
receiving a Disciplinary Report and about transfer to RHU
following earlier harassment by a corrections officer.
See Pl. Suppl. L.R. 56(a) at 10-11 ¶¶
9-11. Garcia repeatedly refused to submit to handcuffs, and
he became agitated over the course of the interaction with
GCI staff. Id. at 11 ¶ 14. At one point, Garcia
attempted to sharpen a toothbrush in his cell. Defs. Suppl.
L.R. 56(a) ¶ 8; Pl. Suppl. L.R. 56(a) at 2 ¶ 8. An
officer deployed a chemical agent into Garcia's cell to
gain his compliance. See Defs. Suppl. L.R. 56(a)
¶ 9; Pl. Suppl. L.R. 56(a) at 2 ¶ 9. Garcia
complied shortly thereafter and officers escorted Garcia to
the RHU in F Unit. DVD-GCI-V-14-274 at 28:50,
responded to a request for assistance at F Unit at
approximately 6:45 pm on May 6, 2014. See Defs.
Suppl. L.R. 56(a) ¶ 31; Pl. Suppl. L.R. 56(a) at 3
¶ 31. Ross observed that Garcia had covered his cell
window with toilet paper. Defs. Suppl. L.R. 56(a) ¶ 32;
Pl. Suppl. L.R. 56(a) at 3 ¶ 32. Lieutenant Mitchell
arrived at Garcia's cell in F Unit at approximately 6:45
pm, and officers began verbal intervention with Garcia in an
attempt to get him to uncover his window and come to the trap
door to be handcuffed. See Pl. First Mem. in
Opp'n., Ex. 2 (Incident Reports) (Doc. No. 59-2) at 3.
Ross was directed to place a plastic shield over the opening
to the trap in Garcia's cell door to permit staff to view
Garcia inside the cell. See Defs. Suppl. L.R. 56(a)
¶ 34; Pl. Suppl. L.R. 56(a) at 4 ¶ 34. During the
next forty minutes, Marek, Bertulis, and Yerkes attempted to
converse with Garcia through the trap in his cell door and to
convince him to cuff up so that officers could remove from
his cell. See DVD-GCI-V-14-276 (Doc. No. 38-14).
recorded a clinical note indicating that she interacted with
Garcia at his cell in F Unit on the evening of May 6, 2014.
See Defs. Suppl. L.R. 56(a) ¶¶ 65-66; Pl.
Suppl. L.R. 56(a) at 5 ¶¶ 65-66. Marek's notes
indicate that Garcia was angry because he had received
another disciplinary ticket and that Garcia threatened to
cover his window again and hurt prison staff if they
attempted to enter his cell. See Defs. Suppl. L.R.
56(a) ¶¶ 65-66; Pl. Suppl. L.R. 56(a) at 5 ¶
66. Marek observed that Garcia was not in distress, that he
reported no suicidal ideation or hallucinations, and that
Garcia planned to speak to his primary social worker after he
attended his court proceeding the following day. See
Defs. Suppl. L.R. 56(a) ¶¶ 65-66; Pl. Suppl. L.R.
56(a) at 5 ¶ 66. Marek concluded that Garcia's
mental health was not a mitigating factor in the issuance of
a disciplinary report and that he could “continue with
the RHU placement process.” See Defs. Suppl.
L.R. 56(a) ¶¶ 65-66; Pl. Suppl. L.R. 56(a) at 5
speaking to Bertulis for a second time, Garcia submitted to
handcuffs and was escorted to the restrictive housing unit.
See Defs. Suppl. L.R. 56(a) ¶ 76; Pl. Suppl.
L.R. 56(a) at 6 ¶ 76. Burritt and Byars escorted Garcia
to a cubicle in F Unit. See Defs. Suppl. L.R. 56(a)
¶¶ 18, 54; Pl. Suppl. L.R. 56(a) at 3 ¶ 18, 4
¶ 54. At one point during Garcia's confinement in
the cubicle, Bertulis spoke to Garcia and said that “we
will help you.” See Pl. Suppl. L.R. 56(a) at
14 ¶ 29; DVD-GCI-V-14-276 at 39:35.
then escorted Garcia from the cubicle to Cell 125 in F Unit.
See Pl. Suppl. L.R. 56(a) at 14 ¶ 30. Garcia
was then placed on in-cell restraints; LPN Yerkes checked the
restraints but did not ask Garcia to stand. Id.
remained on in-cell restraints until 5:00 am on May 7, 2014.
See Pl. Suppl. L.R. 56(a) at 15 ¶ 33. Officers
Byars and Gray recorded their observations of Garcia on a
restraint checklist. See Defs. Suppl. L.R. 56(a)
¶¶ 20, 27; Pl. Suppl. L.R. 56(a) at 3 ¶¶
20, 27. Garcia generally remained calm and did not ask Gray
to get him anything. See Defs. Suppl. L.R. 56(a)
¶¶ 27-28; Pl. Suppl. L.R. 56(a) at 3 ¶ 27.
Around 5:00 am on May 7, 2014, Garcia was removed from Cell
125 for purposes of transporting him to court. See
Pl. Suppl. L.R. 56(a) at 15 ¶ 33. While in the custody
of court marshals, Garcia attempted to commit suicide by
hanging. Id. at 15 ¶ 37.
Exhaustion of Administrative Remedies
defendants argue that Garcia failed to exhaust the
administrative remedies available to him, as required by the
Prison Litigation Reform Act (“PLRA”). Garcia
argues that he fully exhausted his remedies as to all claims.
The PLRA, section 1997e(a) of title 42 of the United States
Code, requires that a prisoner exhaust all available
administrative remedies before filing a lawsuit concerning
prison conditions. 42 U.S.C. § 1997e(a). The PLRA
applies to pre-trial detainees. See 42 U.S.C. §
1997e(h). Proper exhaustion includes complying with all
procedural rules and filing deadlines as defined by the
prison grievance system. See 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).
Supreme Court has addressed three scenarios in which a
prisoner's inability to use the administrative procedures
officially adopted by a prison facility rendered the
procedures “unavailable” for the purpose of
determining PLRA exhaustion. These are (1) where the
procedure is a “dead end” because officers are
unable or consistently unwilling to provide any relief to
aggrieved inmates; (2) where the requirements are so opaque
or convoluted that an ordinary prisoner could not navigate
them; and (3) when prison staff use threats, intimidation, or
misrepresentation to stop an inmate from using the grievance
process. See Ross v. Blake, 136 S.Ct. 1850, 1859-60
to exhaust administrative remedies pursuant to the PLRA is an
affirmative defense. See Jones v. Bock, 549 U.S.
199, 216 (2007). The defendants have the burden to show there
are no material issues of fact as to Garcia exhausting his
claims prior to filing this action. See Johnston v.
Maha, 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.”). The court
summarizes the framework for the DOC administrative remedies
before addressing whether Garcia exhausted the remedies as to
each of his claims.
DOC's Inmate Administrative Remedies are set forth in
Administrative Directive 9.6. See Defs. Suppl. Mot.
Summ. J., Ex. 9, Attach. A (“AD 9.6”) (Doc. No.
81-14). AD 9.6 became effective August 15, 2013, and was in
effect during the time relevant to Garcia's claims. The
type of remedy available to an inmate depends on the nature
of the condition or decision at issue. The Inmate Grievance
Procedure, section six of AD 9.6, is the designated
administrative remedy for all matters not specifically
identified in section 4, subsections A-I. See AD 9.6
§ 4(A). Thus, claims regarding conditions of
confinement, such as placement on in-cell restraints or the
refusal to provide hygiene items are subject to the Inmate
Grievance Procedure. If an inmate is seeking a remedy related
to medical or mental health claims, he must comply with the
requirements set forth in Administrative Directive 8.9,
entitled Administrative Remedy for Health Services. See
id. § 4(L).
Inmate Grievance Procedures require that an inmate first
attempt to resolve the matter informally. Id. §
(6)(A). If verbal resolution is unsuccessful, the inmate must
use a specific form to submit a written request. Id.
§ 6(A). A response to the written request must be made
by DOC within fifteen business days. Id. If attempts
to resolve the matter informally are unsuccessful or if the
inmate did not receive a timely response, he may file a Level
1 Grievance. See id. § (6)(C).
1 grievance must be filed within thirty days of the date of
the occurrence or discovery of the cause of the Grievance.
See id. The Unit Administrator must respond in
writing within thirty business days of receiving the
grievance. See id. § (6)(I).
inmate may appeal an unfavorable or untimely disposition of
the Level 1 grievance to Level 2. See id. §
(6)(G), (I). An inmate appealing an unfavorable disposition
must file the Level 2 appeal within five days of the
inmate's receipt of the Level 1 decision. See
id. § (6)(K). An inmate appealing an untimely
decision must file the Level 2 appeal no later than 65 days
after the inmate filed the Level 1 grievance. See
id. § (6)(M). Level 2 appeals by inmates housed in
a Connecticut correctional facility are reviewed by the
appropriate District Administrator. See id. §
(6)(K). The District Administrator is required to respond to
the Level 2 appeal within 30 business days of receipt of the
appeals are restricted to challenges to department policy,
the integrity of the grievance procedure, or untimely
responses to Level 2 appeals. Id. § (6)(L). A
Level 3 appeal of an unfavorable decision must be filed
within five calendar days of the inmate's receipt of the
decision. Id. A Level 3 appeal of an untimely
disposition must be filed within 35 days of the filing of the
Level 2 appeal. Id. § (6)(M). A Level 3 appeal
is reviewed by the Commissioner of Correction or his or her
designee. Id. § (6)(L). A response to a Level 3
appeal is due within thirty business days of the receipt of
the appeal by the Commissioner or his or her designee.
Directive 8.9, effective July 24, 2012, governs matters
relating to the provision of health services to inmates.
See Defs. Mot. Summ. J., Ex. 10 (“AD
8.9”) (Doc. No. 38-12). There are two types of Health
Services Review: (1) Diagnosis and Treatment, and (2) Review
of an Administrative Issue. See id. § 9(A),
(B). An inmate seeking review of a diagnosis or treatment
issue must attempt to seek informal resolution prior to
filing a formal request for a Health Services Review. See
id. § 10. If an inmate is unsatisfied with the
informal resolution of the complaint and seeks further
review, he must file an Inmate Administrative Remedy Form
seeking a Health Services Review of the diagnosis or
treatment of his or her medical condition. See id.
§ 11. A response to a written request must be made
within fifteen days of receipt of the request. See
informal resolution is unsuccessful, the Health Services
Review Coordinator is required to schedule a Health Services
Review Appointment with a medical provider as soon as
possible. See id. § 11(A). If the medical
provider concludes that the existing diagnosis or treatment
was appropriate, the inmate is considered to have exhausted
his health services review remedy. Id. If the
medical provider reaches a different conclusion with regard
to the appropriate diagnosis or course of treatment for the
inmate's condition, he or she may either provide the
appropriate treatment or refer the case to the Utilization
Review Committee for authorization of different treatment.
See id. § 11(B).
First Amendment/Retaliation Claims
alleges that defendants Parnisakul, Burritt, Ross, and Byars
placed him on in-cell restraints and that defendant Hurdle
refused to give him soap and a cloth to clean himself after
his removal from in-cell restraints in retaliation for
informing Yerkes, Bertulis, and Marek that he was going to
file a lawsuit against them for withholding his mental health
medication from him. See Compl. at 7-8. Parnisakul,
Burritt, Ross, Hurdle, and Byars argue that Garcia did not
exhaust these claims of retaliatory conduct.
the defendants and Garcia have filed copies of a Level 1
Grievance and Level 2 Grievance Appeal related to the
incidents that occurred on May 6, 2014 and May 7, 2014.
See Defs. Suppl. Mot. Summ. J., Ex. 9, Attach. B
(Doc. No. 81-14) at 21- 23; Pl. First Mem. in Opp'n, Ex.
3 (Doc. No. 38-11). Garcia stated in the Grievance that,
after being harassed by a corrections officer, an altercation
with staff led to disciplinary sanctions and removal to the
RHU. See Pl. First Mem. in Opp'n, Ex. 3 at 21.
Garcia claimed he became distraught and irrational, leading
to further sanctions. Id. Garcia claimed that staff
placed him on in-cell restraints and left him in restraints
overnight. Id. Garcia alleged that the process
humiliated and dehumanized him, and that it was “clear
retaliatory behavior” in response to his conduct.
Level 1 Grievance does not specify the actions for which he
was retaliated against by GCI staff. Defendants argue that
the Level 1 Grievance's “sole focus was with
respect to custody's general use of a ‘3 point
restraint'” and that the claims were unrelated to
Garcia's allegations in the Complaint that his being
restrained was in retaliation for stating he would pursue a
lawsuit against mental health staff. Defendants'
Memorandum in Support of Summary Judgment (“Defs. Mem.
in Supp.”) (Doc. No. 38-1) at 8. Garcia's position
is that he adequately complained of the “decision to
use ‘3 point' restraints on May 6, 2014 and the
physical and psychological impact of that decision, ”