Garcia v. University of Connecticut Health Care Center

          AMENDED ^[*] RULING RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 38) AND SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (DOC. NO. 81)

          Janet C. Hall United States District Judge

         The 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.

         Before 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.

         I. BACKGROUND

         In its 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.

         Following 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.

         The 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.

         II. STANDARD OF REVIEW

         On a 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)).

         The 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.”) (citation omitted).

         III. FACTS^[1]

         Garcia 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).^[2]

         At the 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, 38:00.^[3]

         Ross 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).

         Marek 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 ¶ 66.

         After 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.

         Officers 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.

         Garcia 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.

         IV. DISCUSSION

         A. Exhaustion of Administrative Remedies

         The 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).

         The 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 (2016).

         Failure 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.

         1. DOC Administrative Remedies

         The 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).

         The 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).

         A Level 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).

         The 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 appeal. Id.

         Level 3 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. Id.

         Administrative 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 id.

         If an 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).

         2. First Amendment/Retaliation Claims

         Garcia 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.

         Both 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. Id.

         Garcia's 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, ” and ...