United States District Court, D. Connecticut
JAMES A. HARNAGE, Plaintiff,
RIKEL LIGHTNER, et al., Defendants.
RULING ON MOTION FOR SUMMARY JUDGMENT [ECF NO.
W. Thompson United States District Judge.
plaintiff, James A. Harnage, commenced this civil rights
action pro se. The remaining named defendants are:
Health Services Administrator (“H.S.A.”) Rikel
Lightner, Physician's Assistant (“P.A.”)
Kevin McCrystal,  and Dr. Omprekash Pillai. The only
remaining claim is an Eighth Amendment claim for deliberate
indifference to serious medical needs relating to treatment
of the plaintiff's hernia prior to surgery. The defendants
have filed a motion for summary judgment. For the reasons
that follow, that motion is granted except with respect to
the claim against Dr. Pillai.
motion for summary judgment may be granted only where there
are no issues of material fact in dispute and the moving
party is therefore entitled to judgment as a matter of law.
Rule 56(a), Fed. R. Civ. P.; 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
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. See Graham v. Long Island R.R.,
230 F.3d 34, 38 (2d Cir. 2000).
the court reads pro se papers liberally and
interprets them to raise the strongest arguments they
suggest, Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d
Cir. 2015), “unsupported allegations do not create a
material issue of fact” and are insufficient to oppose
a properly supported motion for summary judgment.
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d
plaintiff was transferred to MacDougall-Walker Correctional
Institution (“MacDougall”) on August 2, 2012. He
began experiencing constipation between August and October of
2012, and informed medical staff at MacDougall of his
condition. The plaintiff was not satisfied with the response
from medical staff.
plaintiff concluded, through self-diagnosis, that the strain
of moving his bowels during the period of constipation caused
him to develop hemorrhoids and an abdominal hernia. The
plaintiff was seen by multiple medical staff members for his
various medical complaints, including P.A. McCrystal, Dr.
Pillai and Dr. O'Halloran. The plaintiff denies that any
staff member examined his abdomen or diagnosed a hernia.
the relevant period, P.A. McCrystal worked primarily in the
chronic disease care program at MacDougall. The plaintiff saw
P.A. McCrystal in the chronic care clinic to monitor his
diabetes. The plaintiff told P.A. McCrystal that he was
having problems with his abdomen. P.A. McCrystal told the
plaintiff that he was seeing the plaintiff only for his
diabetes and said the plaintiff should address his abdominal
complaints with the doctor. The plaintiff knows that P.A.
McCrystal is not a doctor or surgeon and does not know what
treatment P.A. McCrystal can provide.
Pillai practiced medicine at MacDougall during the relevant
period. The plaintiff estimates that he saw Dr. Pillai
between 12 and 15 times during the three-year period from the
end of 2012 through 2015. The plaintiff has had the most
contact with Dr. Pillai. The parties disagree whether Dr.
Pillai provided treatment for the plaintiff's hernia. In
July 2013, Dr. O'Halloran provided the plaintiff an
abdominal wrap or binder.
April 25, 2014, Dr. Pillai submitted a request to the
Utilization Review Committee (“URC”) for a
surgical consult for the plaintiff. Such a consultation
cannot occur without URC approval. Dr. Wu, a URC member,
denied the request. A few days later, Dr. Pillai assisted the
plaintiff in appealing the denial. Dr. Mauer, another URC
member, approved the request on appeal and the plaintiff was
scheduled for a surgical consult.
consult with surgeon Dr. David Giles occurred in July 2014.
Dr. Giles later performed surgery on the plaintiff's
abdominal hernia and his hemorrhoids. The hemorrhoidectomy
occurred in October 2014, and the hernia surgery in September
2015. Dr. Giles determined that the hemorrhoidectomy was a
priority and scheduled the order of the procedures.
Lightner was not the director of health services. She did not
practice medicine and did not treat patients. She did not
supervise the URC and could not approve surgeries or surgical
defendants move for summary judgment on four grounds: (1) any
claims based on conduct occurring before May 2, 2013, are
barred by the statute of limitations; (2) the defendants were
not deliberately indifferent to the plaintiff's medical
needs; (3) even if the plaintiff's constitutional rights
were violated, the defendants are protected by qualified
immunity; and (4) the request for injunctive relief should be
Statute of Limitations
defendants first argue that some of the plaintiff's
claims are time-barred. In Connecticut, the applicable
statute of limitations for a claim under 42 U.S.C. §
1983 is found in Conn. Gen. Stat. § 52-577, which
provides that “[n]o action founded upon a tort shall be
brought but within three years from the date of the act or
omission complained of.” Lounsbury v.
Jefferies, 25 F.3d 131, 133 (2d Cir. 1994).
plaintiff first referenced these claims in Harnage v.
Woo, No. 3:16-cv-675(AWT), filed on May 2, 2016. The
court dismissed Harnage v. Woo for improper joinder
of claims and afforded the plaintiff an opportunity to refile
his claims in separate cases. See Harnage v. Woo,
id. (Initial Review Order, ECF No. 8, filed
September 1, 2016, at 11-13). The plaintiff filed this action
in response to that order. Thus, although the court assumed
that the plaintiff would immediately file the separate
actions as directed and not wait over five months to do so,
the court liberally construes the limitations period to
commence on May 2, 2013, three years before the plaintiff
filed the prior action. See Harnage v. Giles, No.
3:17-cv-285(AWT) (D. Conn.) (Ruling on Motion to Dismiss, ECF
No. 8, at 7-8) (similarly extending limitations period).
plaintiff stated in his deposition that he first noticed the
hernia in October 2012, when it appeared as a small blister
on his skin. Deposition Tr., Pl.'s Mem. Ex. 2A, ECF No.
117-3 at 46. He states in his affidavit, however, that he
first noticed the hernia in May 2013. Pl.'s Aff., ECF No.
117-2, ¶ 26. As the plaintiff has submitted no objective
evidence showing that he sought treatment for the hernia
prior to May 2013, the court considers the plaintiff's
claims as falling within the limitations period. Therefore,
the request to dismiss any claims as time-barred is being
Deliberate Indifference to a Serious Medical
defendants argue that the plaintiff has not demonstrated the
existence of a genuine issue of material fact as to whether
they were deliberately indifferent to his hernia.
Supreme Court has held that deliberate indifference to a
convicted prisoner's serious medical needs can constitute
cruel and unusual punishment in violation of the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 104
(1976). A claim of deliberate indifference to serious medical
needs has both an objective and a subjective component.
See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d
the objective component of the test, the alleged deprivation
of medical care must be “sufficiently serious.”
See Spavone v. New York State Dep't of Corr.
Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting
Salahuddin, 467 F.3d at 279). A “sufficiently
serious” deprivation can exist if the plaintiff suffers
from an urgent medical condition that can cause death,
degeneration, or extreme or chronic pain and that
significantly affects daily activities. See Brock v.
Wright, 315 F.3d 158, 162-63 (2d Cir. 2003); Chance
v. Armstrong, 143 F.3d 698, 702, 703 (2d Cir. 1998).
medical condition may not be serious initially, but may
become serious because it is degenerative and, if left
untreated or neglected for a long period of time, will
“result in further significant injury or the
unnecessary and wanton infliction of pain.”
Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir.
2000). The Second Circuit has identified several factors that
are “highly relevant” to the question of whether
a medical condition is sufficiently serious, including
“an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an
individual's daily activities; or the existence of
chronic and substantial pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
as here, the plaintiff complains about a delay in treatment,
the court must focus on the effect of the delay rather than
the underlying medical condition. See Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003); see
also Cruz-Droz v. Marquis, No. 3:17-cv-1291(MPS), 2018
WL 1368907, at *4 (D. Conn. Mar. 16, 2018) (if claim is for
temporary delay in otherwise adequate treatment, court
focuses on delay rather than underlying medical need). The
Second Circuit has held that a delay in treatment constitutes
deliberate indifference where prison officials “ignored
a life-threatening and fast-degenerating” condition for
three days, Liscio v. Warren, 901 F.2d 274, 277 (2d
Cir. 1990), or delayed needed major surgery for over two
years. Hathaway v. Coughlin, 841 F.2d 48, 50-51 (2d
Cir. 1988). The court considers the reason for the delay and
whether the delay worsened the prisoner's condition.
Smith, 316 F.3d at 187. “[I]n most cases, the
actual medical consequences that flow from the alleged denial
of care will be highly relevant to the question of whether
the denial of treatment subjected the prisoner to a
significant risk of serious harm.” Id.
subjective component requires that the defendant prison
official must have been actually aware of a substantial risk
that the plaintiff would suffer serious harm as a result of
his or her actions or inactions and have disregarded that
risk. See Salahuddin, 467 F.3d at 2799-80. The fact
that a prison official or employee “failed to alleviate
a significant risk that he should have perceived, ...