Green v. Shaw

          RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          HAIGHT, SENIOR DISTRICT JUDGE:

         Plaintiff Courtney Green ("Plaintiff"), currently incarcerated at Osborn Correctional Institution and previously incarcerated at Corrigan Correctional Center (“Corrigan”), filed this Complaint pro se pursuant to 42 U.S.C. § 1983 on June 2, 2017. On August 17, 2017, this Court issued an Initial Review Order, permitting Plaintiff's claims that he was denied adequate medical care in violation of the Eighth Amendment to proceed against two Registered Nurses at Corrigan, Nurses Shaw and Brennan^[1] (the "Defendants"), in their individual capacities. That Order, 2017 WL 3568666 (D. Conn. Aug. 17, 2017), familiarity with which is assumed, also dismissed Plaintiff's Amended Complaint to the extent it sought to plead § 1983 claims for violations of his due process rights or based on the Equal Protection Clause. Id.

         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. Fed.R.Civ.P. 56(a); see also Redd v. New York Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). A “genuine issue” exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under governing law.” Id.

         The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the initial burden is satisfied, the burden then shifts to the non-moving party to present “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) (internal quotation marks and citation omitted). While the Court must view the record in the light most favorable to the nonmoving party, and resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, Anderson, 477 U.S. at 255, the non-moving party nevertheless “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must support any assertion disputing the veracity of a fact or existence of an alleged dispute with specific citation to the record materials. Fed.R.Civ.P. 56(c)(1).

         Because Plaintiff is proceeding pro se, the Court must read his submissions “liberally” and interpret them “to raise the strongest arguments” that they suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Nonetheless, “[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence, are insufficient to overcome a motion for summary judgment.” Rodriguez v. Hahn, 209 F.Supp.2d 344, 348 (S.D.N.Y. 2002) (internal quotation marks omitted).

         II. Facts^[2]

         On or about June 23, 2015, Green began experiencing pain and bleeding from his rectum after a bowel movement, which occurred after he had been playing basketball and while he was fasting for Ramadan. Plaintiff's Local Rule 56(a)(2) Statement, Doc. 29, at 18 ¶ 5. The next day, he wrote to the medical unit of Corrigan stating that he was "having pain in [his] rectum during bowel movement." Id. ¶ 6. His request was returned on or about June 26, 2015 with a notation that he had been placed on the sick call list. Id. About a week later on July 1, 2015, he wrote the medical unit after experiencing severe discomfort and because he still had not been seen by a medical professional. Id. ¶ 7. He stated: "I have a serious problem. Pain and bleeding from the rectum and I need to see the Dr. urgently." Id. He also reminded medical staff that he had sent a previous written request regarding his symptoms. Id.

         On July 3, 2015, Green was seen by Defendant Shaw at sick call. Id. ¶ 8. He explained his symptoms and informed Shaw that he was fasting for Ramadan. Id. Shaw questioned the Plaintiff about his bowel movements, and Plaintiff indicated that earlier in the day he had a hard bowel movement. Defendants' Local Rule 56(a)(1) Statement, Doc. 24-3 ¶ 22. Plaintiff did not disclose black tarry stools, which would have indicated blood in the stool. Id. ¶ 25. Shaw also auscultated to determine if Plaintiff's bowels were stagnant and for regular peristalsis, felt the plaintiff's abdominal area for distention caused by stool buildup, and took Plaintiff's vital signs. Doc. 29 at 18-19; Doc. 24-3 ¶ 23. Shaw did not, however, conduct a rectal examination. Doc. 29 at 18-19. Shaw diagnosed Plaintiff with hemorrhoids due to constipation, and recommended that Plaintiff increase his intake of water, consume more fiber, and not strain while using the restroom. Doc. 24-3 ¶¶ 16, 31, 33, 34. Green was also instructed to follow up in three to four days if the problem persisted. Id. ¶ 16. Green did not return within three to four days, and Shaw did not see Green again.

         On August 20, 2015, Green again wrote to the Corrigan medical unit stating "I'm having hemorrhoid trouble problems." Doc. 29 at 38, Pl.'s Ex. 5. Soon after he was called to medical for triage where Defendant Brennan met with him at sick call.^[3] Doc. 24-3 ¶ 2. During this consultation, Green informed Brennan that he had been using hemorrhoid cream but it was not effective and his rectum was still bleeding. Id. ¶ 7. Brennan explained that hemorrhoids are chronic. Id. Brennan instructed Green to push the hemorrhoids back into his rectum with his fingers while in the shower. Id. Green requested that Brennan put him on a list to see the doctor so that they could begin a process to remove the hemorrhoids. Id. Brennan told Green that there was no removal of hemorrhoids and Green stated "Oh ok. I'm all set." Doc. 24-3 ¶ 47. Brennan did not place Green on the wait list to see a doctor and did not examine Green's rectum. Id. ¶¶ 50. Plaintiff does not allege that he interacted with either Defendant after August of 2015.

         On or about March 31, 2016, Green was transferred from Corrigan to Macdougall Walker Correctional Institution. Doc. 29 at 20 ¶ 27. While housed there, his symptoms worsened and eventually impeded his ability to have regular bowel movements, to the point that his underwear would be soiled with blood. Id. At that point, he also experienced burning sensations from his rectum and he was in extreme discomfort while walking, running and during bowel movements. Id. In mid- to late-August 2016, Green wrote to the medical unit via an inmate request form regarding his symptoms. Id. at 21 ¶ 28. He was not seen and two weeks later, on September 12, 2016, he wrote again elaborating on the difficulties he was experiencing and explaining that he had not been seen for sick call treatment as required under Administrative Directives 8.1(6)A and 8.1(3)A. See Id. at 40, Pl.'s Ex. 6. On or about October 4, 2016, Green received a notification that he was scheduled to see a doctor five days later. Id. ¶ 29. Green was not seen by a doctor while at MacDougall Walker, but was subsequently transferred to Osborn on October 21, 2016. Id. ¶ 30. Two days after his transfer, Green wrote to medical via an inmate request form, stating that his hemorrhoids were “causing a great deal of burning, bleeding and restrict[ion] of my bowel movements” and requesting to have his veins removed. Id. ¶ 31; id. at 42, Pl.'s Ex. 7. On October 31, 2016, his inmate request was returned stating that he had been a no show at sick call. Id. ¶ 32; id. at 42, Pl.'s Ex. 7. On November 7, 2016, he filed an Inmate Administrative Remedy Form requesting a Health Services Review, and stating that he had not attended sick call because he had previously met with two nurses at Corrigan who had told them there was nothing that could be done about his condition. Id. at 45-46, Pl.'s Ex. 8. On December 1, 2016, Green was called to medical where Dr. Wright saw him. Id. ¶ 33. During his consultation, Green explained in detail the symptoms that he had been experienced over about 18 months. Id. at 21-22 ¶ 33. Dr. Wright then examined Green's rectum and did not find any hemorrhoids but did observe blood. Id. at 22 ¶ 34. Dr. Wright prescribed to Green a stool softener, suppositories and cortisone cream. Id. Dr. Wright also submitted Green to a review committee to be determined if he should be tested for colon cancer. Id. ¶ 36.

         On or about December 9, 2016, Green's Inmate Administrative Remedy Form requesting his Health Services Review was returned with the disposition "Change DX/TX.” Doc. 29 at 45-46, Pl.'s Ex. 8. Between December 1, 2016 and February 6, 2017, Green was approved by the review committee to have testing done with Dr. Giles at the UCONN Health Center on February 7, 2017. Id. at 22 ¶ 36. During the consultation it was determined that Green did not have colon cancer, but that he, in addition to suffering from moderate size hemorrhoids, had an anal fissure which had healed with gradation tissue, and would not properly heal and would continue bleeding without a resection procedure. Id. ¶ 37. On or about March 15, 2017, Green was transferred to UCONN Health Center for the resection procedure. Id. ¶ 38. He also had the wall of an internal hemorrhoid band ligated. Id. Sometime in the middle of May 2017, Green again began experiencing sharp pain from his rectum in addition to bleeding. Id. ¶ 39. Green met with a series of medical providers since May 2017, but as of July 2018 he continues to suffer from pain and bleeding from his rectum. Id. at 26 ¶ 60.

         III. Discussion

         The defendants move for summary judgment on three grounds: (1) Green did not exhaust his administrative remedies before filing this action, (2) the Defendants were not deliberately indifferent to a serious medical need, and (3) the Defendants are protected by qualified immunity.

         A. Exhaustion of Administrative Remedies

         Defendants first argue that Green has not exhausted his administrative remedies. The Prison Litigation Reform Act requires prisoners to exhaust administrative remedies before filing a federal lawsuit relating to prison conditions. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). This exhaustion requirement applies to all claims regarding “prison life, whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 524, 532 (2002).

         Exhaustion of all available administrative remedies must occur regardless of whether the administrative procedures provide the relief that the inmate seeks. See Booth v. Churner, 532 U.S. 731, 741 (2001). Furthermore, prisoners must comply with all procedural rules regarding the grievance process prior to commencing an action in federal court. See Woodford v. Ngo, 548 U.S. 81, 90-91, 93 (2006) (proper exhaustion “means using all steps that the agency holds out ... (so that the agency addresses the issues on the merits) ... [and] demands compliance with agency deadlines and other critical procedural rules”). Special circumstances will not relieve an inmate of his obligation to adhere to the exhaustion requirement. An inmate's failure to exhaust administrative remedies is only excusable if the remedies are in fact unavailable. See Ross v. Blake, 136 S.Ct. 1850, 1858 (2016).

         1. Administrative Review Procedure^[4]

         The Health Services Review procedure is the administrative remedy for all medical issues. Department of Correction Administrative Directive 8.9(1), https://portal.ct.gov/DOC/AD/AD-Chapter-8 (last visited Dec. 11, 2018). An inmate, like Green, seeking review of a diagnosis- or treatment-related issue (including the decision to provide no treatment) is directed to seek an informal resolution prior to filing a formal request for a Health Services Review. Id. at 8.9(10). If the issue is not satisfactorily resolved informally, the inmate is then directed to file an Inmate Administrative Remedy Form seeking a Health Services Review. Id. at 8.9(11). The Inmate Administrative Remedy Form must designate that the inmate is experiencing an issue related to “Diagnosis/Treatment” by checking the appropriate box, and provide a concise statement of what diagnostic or treatment decision he believes is wrong and how he has been affected. Id. The Health Services Review Coordinator will then ...