United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY, UNITED STATES DISTRICT JUDGE
Edward Kramer brings this action against the State of
Connecticut, the Department of Correction
(“DOC”), former DOC Commissioner Leo Arnone,
former Warden Peter Murphy and Correction Officer Justin
Caputo. The action arises from plaintiff's incarceration
as a pretrial detainee at MacDougall-Walker Correctional
Institution (“MWCI”) from 2011 to 2013. The third
amended complaint (“the complaint”) does not
specify the nature of the claims against the State and DOC
but is properly construed as asserting a claim against the
State under the Americans With Disabilities Act and the
Rehabilitation Act. The claims against Arnone and Murphy are
brought under 42 U.S.C. § 1983 and allege deliberate
indifference to his serious medical needs and interference
with his free exercise of religion. The claim against Caputo,
also brought under § 1983, alleges deliberate
indifference to plaintiff's safety. Defendants have moved
for summary judgment on all the claims. For reasons discussed
below, the motion is granted in full.
judgment may be granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “In moving for summary judgment
against a party who will bear the ultimate burden of proof at
trial, the movant's burden will be satisfied if he can
point to an absence of evidence to support an essential
element of the nonmoving party's claim.”
Goenaga v. March of Dimes Birth Defects Found., 51
F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S.
at 322-23). To avoid summary judgment, the plaintiff must
point to evidence that would permit a jury to return a
verdict in his favor. Id.; see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If the
evidence in the record is legally insufficient to support a
verdict in favor of the plaintiff, there is no need for a
trial because even if the jury were to return a verdict in
his favor, the verdict would have to be overturned due to the
lack of sufficient evidentiary support. In deciding whether
the evidence is legally sufficient to support the
plaintiff's claim, the evidence must be viewed in the
light most favorable to him. Anderson, 477 U.S. at
255. But the Court is “not required to scour the record
on its own in a search for evidence when the plaintiff
fail[s] to present it.” CILP Assocs., L.P. v.
PriceWaterhouse Coopers LLP, 735 F.3d 114, 125 (2d Cir.
2013) (internal quotation marks omitted).
the Local Rules, parties briefing motions for summary
judgment must attach statements of undisputed material
facts.See D. Conn. L. Civ. R. 56(a).
Each material fact must be supported “by a specific
citation to (1) the affidavit of a witness competent to
testify as to the facts at trial, or (2) other evidence that
would be admissible at trial.” Id. R.
56(a)(3). “Each material fact set forth in the
[movant's] Statement and supported by the evidence will
be deemed admitted (solely for purposes of the motion) unless
such fact is controverted by the [non-movant's] Statement
. . . or the Court sustains an objection to the fact.”
Id. R. 56(a)(1).
Local Rule 56(a) statement cites heavily to hearsay sources
such as his grievance forms. The exhibits include deposition
testimony from plaintiff, but no affidavit from him.
Attempting to remedy this problem, plaintiff argues that
hearsay evidence is sufficient to defeat summary judgment if
there is reason to believe that the evidence can be offered
in admissible form at trial. But Local Rule 56(a)(3) is
clear: “each denial” in plaintiff's Local
Rule 56(a)(2) statement “must be followed by a specific
citation to” either “the affidavit of a witness
competent to testify as to the facts at trial” or
“other evidence that would be admissible at
trial.” In the absence of an affidavit, any hearsay
evidence that would not be admissible at trial may not be
considered at this stage. Accordingly, I deem admitted those
facts from the defendants' Local Rule 56(a) statement
that are supported by the record and uncontradicted by
fall of 2011, plaintiff was housed at MWCI as a pretrial
detainee in connection with charges then pending in Georgia.
December 2011 until he was returned to Georgia in January
2013, he was housed in the inpatient medical unit.
February 2012, another detainee named Leon Owens was assigned
to the bed next to plaintiff's in MWCI's medical
unit. On February 21, a third pretrial detainee, Kevin
Maslak, changed the television channel while Owens was
sleeping. Owens was awakened as a result of the change of
channels. He approached Maslak and threatened to kill him.
Any potential assault was halted by the intervention of
reported this incident to Caputo, telling him “that for
changing the TV while he was asleep, Mr. Owens threatened to
kill another inmate and I felt the need that that would be
something that I should report to you.” Pl. Dep., ECF
No. 132-3, at 18. Caputo brushed it off, saying this type of
thing happens in prison.
did not report the incident to his superiors, but plaintiff
reported it to Murphy. Murphy and the medical staff -- but
not Caputo -- had the power to place inmates into particular
units or wards within the medical unit.
the morning of February 23, Owens made anti-Semitic remarks
then viciously attacked plaintiff, who is Jewish. Plaintiff
was in bed at the time making him particularly vulnerable to
the assault. Owens fractured plaintiff's nose, knocked
him unconscious, and delivered blows to his chest and
stomach. Caputo was not present when this attack occurred.
claims that while he was at MWCI, he was denied access to
appropriate medical care, the library, outdoor recreation,
and proper religious accommodations.
Deliberate Indifference to Physical Safety
claims that Caputo was deliberately indifferent to his
physical safety in the two days leading up to the assault by
Owens on February 23. Because plaintiff was a pretrial detainee,
this claim falls under the Fourteenth
Amendment.Conquistador v. Adamaitis, No.
3:19-CV-430 (KAD), 2019 WL 1573710, at *2 (D. Conn. Apr. 11,
2019); see Darnell, 849 F.3d at 29.
prevail on this claim, plaintiff must satisfy two prongs.
First, he must show that he was incarcerated under conditions
posing a substantial risk of serious harm. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). This prong is
satisfied when, for example, “prison guards simply
stand by and permit an attack on an inmate by another inmate
to proceed” or “where there is prior hostility
between inmates, or a prior assault by one inmate on another,
and those inmates are not kept out of contact from one
another.” George v. Burton, No. 00 CIV. 143
(NRB), 2001 WL 12010, at *3 (S.D.N.Y. Jan. 4, 2001)
(collecting cases). Second, he must prove that Caputo knew of
the need to protect the plaintiff against an excessive risk
to his physical safety yet failed to act to mitigate the
risk. Darnell, 849 F.3d at 35. In other words, more
than “mere negligence” is required. Id.
at 36; see also Hodge v. City of New York, No.
19-CV-2474 (CM), 2019 WL 1455170, at *2 (S.D.N.Y. Apr. 1,
2019) (applying Darnell to a deliberate indifference
to physical safety claim).
triable of issue of fact may well arise in a case where a
defendant “had prior knowledge that [another inmate]
had made death threats against the plaintiff which were
ignored.” Ayers v. Coughlin, 780 F.2d 205, 207
(2d Cir. 1985); see also Morales v. N.Y. State Dep't
of Corr., 842 F.2d 27, 30 (2d Cir. 1988) (allowing claim
to proceed where plaintiff alleged “that he complained
to [the defendant], only a few hours before the . . . attack,
that [the other inmate] had tried to attack him the night
before and would probably do so again”). By contrast,
“there can be no liability absent a particularized
threat to the inmate's safety . . . .” Shell v.
Brun, 585 F.Supp.2d 465, 470 (W.D.N.Y. 2008). An
exception to this general rule exists where “the
official acted or failed to act despite his knowledge of a
substantial risk of serious harm, ” for example, where
the plaintiff “presents evidence showing that a
substantial risk of inmate attacks was longstanding,
pervasive, well-documented, or expressly noted by prison
officials in the past, and the circumstances suggest that the
defendant-official being sued had been exposed to information
concerning the risk and thus must have known about it . . .
.” Farmer, 511 U.S. at 842-43 (internal
quotation marks omitted). Yet “[e]ven if, in hindsight,
it might have been wiser to have moved plaintiff to a
different area sooner, that will not give rise to a
constitutional claim. As stated, mere negligence is not
enough.” Shell, 585 F.Supp.2d at 470.
Caputo had no power over housing assignments and was not
present on the day Owens attacked the plaintiff, the claim
against Caputo rests on the fact that plaintiff informed him
about the threats Owens made to Maslak. Plaintiff did not,
however, tell Caputo that Owens had made threats directed at
him, and there is no evidence of any such threats. Nor is
there any evidence that Owens had previously attacked others,
or that he had displayed hostility to the plaintiff. In the
absence of such evidence, plaintiff cannot satisfy either
prong of his claim and Caputo is thus entitled to summary
Deliberate Indifference to Serious Medical Needs
claims that Arnone and Murphy were deliberately indifferent
to his serious medical needs in violation of the Fourteenth
Amendment. He alleges that under their watch he was at times
deprived of a wheelchair; medications for his psoriatic
arthritis, chronic pain, hypertension, and diabetes;
neurological and podiatric care; and repairs to his portable
oxygen concentrator. Arnone and Murphy argue that plaintiff
cannot establish their personal involvement in a
constitutional violation. I agree.
personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983.” Victory v. Pataki, 814 F.3d 47,
67 (2d Cir. 2016) (internal quotation marks omitted) (quoting
Farrell v. Burke, 449 F.3d 470, 484 (2d
Cir. 2006)), as amended (Feb. 24, 2016). Vicarious
liability does not apply; rather, “each
Government-official defendant, through the official's own
individual actions, [must] ha[ve] violated the
Constitution” to be held liable. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). An individual's
personal involvement can be established by demonstrating
“intentional participation in the conduct constituting
a violation of the victim's rights by one who knew of the
facts rendering it illegal.” Provost v. City
of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)
(footnote marker omitted).
Second Circuit recognizes several ways of establishing
personal involvement of supervisors:
The personal involvement of a supervisory defendant may be
shown by evidence that: (1) the defendant participated
directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed
the wrongful acts, or (5) the defendant exhibited deliberate
indifference to the rights of [the plaintiff] by failing to
act on information indicating that unconstitutional acts were
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995). “In addition to satisfying one of
these requirements, a plaintiff must also establish that the
supervisor's actions were the proximate cause of the
plaintiff's constitutional deprivation.”
Raspardo, 770 F.3d at 116.
record does not support a finding of personal involvement in
the alleged deprivations of medical care as to either Arnone
or Murphy. Arnone's involvement in plaintiff's
medical care was extremely limited. Rabbi Menachem Katz, an
advocate for plaintiff, emailed Arnone on November 10, 2011
to flag unspecified “issues with medical care.”
ECF No. 135-3 at 18. Arnone responded the same day that he
“had our director of Medical Services look into the
issue this afternoon and Mr[.] Kramer will be receiving the
medication he was using before coming in.” Id.
Plaintiff mailed a letter to Arnone dated November 28, 2011,
which mentioned problems including lack of access to a
neurologist or a wheelchair. See ECF No. 135-2 at
66-67; ECF No. 135-3 at 32-33. Deputy Commissioner James
Dzurenda responded to that letter on December 9, 2011.
See ECF No. 135-2 at 68; ECF No. 135-3 at 44. On
February 29, 2012, plaintiff wrote a letter to Arnone
alleging a lack of access to a neurosurgeon. ECF No. 135-3 at
46-49. Specifically, he wrote that his “case was
continued for another month (which means another month still
until I ...