King v. Gates

          RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE

         The pro 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.

         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. 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).

         The 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.

         Although 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).

         II. Facts^[1]

         The 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., ¶ 3.

         Defendant 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.

         The 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.

         An 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.

         Michelle 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., ¶¶ 22-24.

         The 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., ¶ 27.

         The 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 ...