Kramer v. State

          RULING AND ORDER

          ROBERT N. CHATIGNY, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.^[1] 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.^[2] 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.

         I. Legal Standard

         Summary 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).

         Under the Local Rules, parties briefing motions for summary judgment must attach statements of undisputed material facts.^[3]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).

         Plaintiff's 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.^[4] Accordingly, I deem admitted those facts from the defendants' Local Rule 56(a) statement that are supported by the record and uncontradicted by admissible evidence.

         II. Discussion

         In the fall of 2011, plaintiff was housed at MWCI as a pretrial detainee in connection with charges then pending in Georgia.

         From December 2011 until he was returned to Georgia in January 2013, he was housed in the inpatient medical unit.

         In 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 staff.

         Plaintiff 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.

         Caputo 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.

         During 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.

         Plaintiff claims that while he was at MWCI, he was denied access to appropriate medical care, the library, outdoor recreation, and proper religious accommodations.

         A. Deliberate Indifference to Physical Safety

         Plaintiff claims that Caputo was deliberately indifferent to his physical safety in the two days leading up to the assault by Owens on February 23.^[5] Because plaintiff was a pretrial detainee, this claim falls under the Fourteenth Amendment.^[6]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.

         To 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).

         A 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.

         Because 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 judgment.

         B. Deliberate Indifference to Serious Medical Needs

         Plaintiff 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.^[7] Arnone and Murphy argue that plaintiff cannot establish their personal involvement in a constitutional violation. I agree.

         “[T]he 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).

         The 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 occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).^[8] “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.

         The 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 ...