United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR SUMMARY
MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE
se plaintiff, Robert King, commenced this civil rights action
asserting claims for use of excessive force in violation of
the Eighth Amendment. The named defendants, Captain Lewis,
Lieutenant Rangel, and Correctional Officers Gates, Reynoso,
Noyce, Simmons, Lukasiewski, and Russo, move for summary
judgment on the ground that the plaintiff failed to exhaust
his administrative remedies before commencing this action.
The motion was filed on February 28, 2019. On March 20, 2019,
the plaintiff filed a motion for extension of time to respond
to the motion for summary judgment. The Court granted the
motion and directed the plaintiff to file his response on or
before May 20, 2019. ECF No. 52. That date has passed without
a response or request for additional time to respond. For the
reasons that follow, the defendants' motion is granted.
Standard of Review
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 Nick's Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 113-14 (2d Cir.
2017). “A genuine issue of material fact exists if
‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'”
Nick's Garage, 875 F.3d at 113-14 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Which facts are material is determined by the
substantive law. Anderson, 477 U.S. at 248.
“The same standard applies whether summary judgment is
granted on the merits or on an affirmative defense
….” Giordano v. Market Am., Inc., 599
F.3d 87, 93 (2d Cir. 2010).
moving party bears the initial burden of informing the court
of the basis for its motion and identifying the admissible
evidence it believes demonstrates the absence of a genuine
issue of material fact. 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). When reviewing the evidence in the
summary judgment record, the Court must draw all reasonable
inferences in favor of the non-moving party.
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).
defendants recount the following allegations from the Amended
Complaint. On April 5, 2017, the plaintiff was incarcerated
at Corrigan-Radgowski Correctional Center
(“Corrigan”). ECF No. 50-7, ¶ 1. On that
day, he was being strip-searched by all defendants.
Id., ¶ 2. Defendant Rangel was in charge of the
search and annotated a hand-held video tape. Id.,
Lukasiewski instructed the plaintiff to remove his shoes and
slide them back. The plaintiff complied with the order.
Id., ¶ 4. He then told the plaintiff to turn
around and pick up the shoes. The plaintiff complied with the
order. Id., ¶ 5. When he turned around,
however, defendant Lukasiewski screamed at the plaintiff to
turn back and face the wall. Id., ¶ 6.
plaintiff alleges that defendants Lukasiewski, Gates, and
Reynoso slammed him into the wall and tripped him, causing
him to fall to the ground. Id., ¶ 7. Defendant
Lewis sprayed the plaintiff with a chemical agent when he was
against the wall. Id., ¶ 8. Defendant Rangel
sprayed him with a chemical agent when he was on the ground.
Id., ¶ 9. The plaintiff also believes that
defendants Gates, Lukasiewski, Noyce, Reynoso, Russo, and
Simmons punched and kicked him when he was on the ground.
Id., ¶ 10.
unidentified defendant yelled for the plaintiff to stop
resisting while the other Statement which contains separately
numbered paragraphs corresponding to the Local Rule 56(a)1
Statement and indicates whether the opposing party admits or
denies the facts set forth by the moving party. Each
admission or denial must include a citation to an affidavit
or other admissible evidence. In addition, the opposing party
must submit a list of disputed factual issues. D. Conn. L.
Civ. R. 56(a)2 and 56(a)3. Although the defendants informed
the pro se plaintiff of this requirement in the manner
required by the Local Rule, ECF No. 50-8; D. Conn. L. Civ. R.
56(b), and the Court granted an extension of time for him to
respond, the plaintiff has not submitted any opposition
papers. Accordingly, the defendants' facts are deemed
admitted. See D. Conn. L. Civ. R. 56(a)1 (“All
material facts set forth in said statement and supported by
the evidence will be deemed admitted unless controverted by
the statement required to be filed and served by the opposing
party in accordance with Rule 56(a)2.”). As the Amended
Complaint is verified, the Court may consider the allegations
in reviewing the motion for summary judgment. Because the
Amended Complaint contains no reference to exhaustion of
administrative remedies, however, it does not assist the
plaintiff in raising a genuine dispute of material fact.
defendants were striking him. Id., ¶ 11. The
plaintiff screamed that he was not resisting and screamed in
pain at least twice. Id., ¶¶ 12-13. The
plaintiff was decontaminated in the shower and brought to the
medical unit. Id., ¶ 14. He suffered a cut
above his right eye, which caused a scar, a dent on the right
side of his skull, and multiple contusions. Id.,
¶ 15. He suffers severe headaches and other unspecified
health issues from the injuries, and twice has been brought
to the Emergency Room by ambulance. Id., ¶ 16.
King serves as the Administrative Remedies Coordinator at
Corrigan. Id., ¶ 19. In that position, she
keeps records of all inmate grievances filed at that facility
and maintains the Grievance Log. Id., ¶ 20. The
administrative remedy procedures are set forth in Department
of Correction Administrative Directive 9.6. Id.,
¶ 21. An inmate must first try to resolve his complaint
informally, both verbally and in writing, before filing a
grievance. The grievance must be filed within thirty days
from the date of the incident. Id., ¶¶
plaintiff was housed at Corrigan from January 24, 2017,
through May 2, 2017. Id., ¶ 25. Ms. King has
reviewed the Grievance Log to locate any grievances filed by
the plaintiff between April 5, 2017, and May 5, 2017, the
thirty-day period during which the plaintiff was required to
file a grievance regarding this incident. Id.,
plaintiff filed one grievance during the period.
Id., ¶ 28. The grievance complained that
correctional staff gave him the address to write to the State
Police instead of allowing him to call the State ...