United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
Vanessa L. Bryant United States District Judge
the Court is Defendants', Correction Officer Brandon
Hunter (“CO Hunter”) and Dr. Cary Freston
(“Dr. Freston”), Motion for Summary Judgment
[Dkt. 26]. Plaintiff Thomas Urbanski, formerly incarcerated
at the Osborn Correctional Institution in Somers, Connecticut
alleges deliberate indifference to safety and failure to
protect against CO Hunter and deliberate indifference to
medical needs against Dr. Freston. [Dkt. 1 (Compl.)]. For the
reasons set forth below, the Defendants' motion for
summary judgment is GRANTED and Plaintiff's claims are
following facts are taken from the Local Rule 56 statements
of material facts and evidence cited by the parties. The
facts are read in the light most favorable to the non-movant,
Mr. Urbanski. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The parties agree on most of salient
was housed at Osborn Correctional Institution
(“Osborn”) from December 12, 2017 until his
discharge from custody in October 17, 2019. [Def. D. Conn.
Civ. L. R. 56(a) ¶ 3]. The Complaint was filed during
his period of incarceration. Id. ¶ 1. Plaintiff
is wheelchair bound. Id. ¶ 5.
December 22, 2017, Plaintiff was transported via specialized
van by CO Hunter to the UConn Health Center
(“UConn”). Id. ¶ 5. The purpose of
the trip was a follow-up appointment for Plaintiff's left
wrist. [Pl. Ex. A (Pl. Aff.) ¶ 2]. CO Hunter locked the
wheels to Plaintiff's wheelchair and secured at least the
back wheels to the van with floor straps, but Plaintiff's
seat belt was not secured. Id. ¶ 6; [Pl. Ex. A
(Pl. Aff.) ¶ 7]; [Pl. Ex. D (12/22/2017, Hunter incident
report)]. CO Hunter handcuffed Plaintiff's right wrist to
the wheelchair's frame. [Pl. Ex. A (Pl. Aff.) ¶ 4].
Plaintiff alleges that he asked CO Hunter to secure his
seatbelt, but CO Hunter refused. Id. at ¶ 8. He
also alleges that CO Hunter drove erratically. Id.
at ¶ 9.
was injured en route when his wheelchair tipped over. [Pl.
Ex. D (12/22/2017, Hunter incident report)] (“I heard
yelling coming from the back of the van. I looked in the
rearview and noticed Inmate Urbanski had tipped over out of
his wheelchair”); [Pl. Ex. A (Pl. Aff.) ¶ 10]. He
was transported via ambulance to UConn's emergency room.
[Pl. Ex. A (Pl. Aff.) ¶ 14]; Def. D. Conn. Civ. L. R.
56(a) ¶ 9. The emergency room records show that
Plaintiff presented with pain in his right arm, neck, and
back. [Def. Ex. L (12/22/2017 Hosp. Record) 2, 3]. An x-ray
of Plaintiff's right forearm and right wrist showed no
evidence of fracture or dislocation. Id.; Def. D.
Conn. Civ. L. R. 56(a) ¶ 11. Plaintiff was discharged
the same day. Def. D. Conn. Civ. L. R. 56(a) ¶ 15. The
UConn treating physician recommended follow-up treatment with
“tramadol and NSAIDs as tolerated for pain.” Def.
D. Conn. Civ. L. R. 56(a) ¶ 13.
his return to Osborn, Plaintiff was prescribed various
medications, including an NSAID and Gabapentin/Neurontin, a
nerve modulating pain medication. Id. at ¶ 17.
Plaintiff received an x-ray on his left hand on May 14. 2018
after he suffered a seizure on May 4, 2018. Id.
¶ 18. Plaintiff alleges that Dr. Freston at Osborn
failed to sufficiently treat Plaintiff's chronic pain
because he only prescribed Tylenol, he did not willingly
order an x-ray of Plaintiff's left wrist after his May
2017 seizure, and he made callous comments to Plaintiff. [Pl.
Ex. B (Pl. Aff.) ¶¶ 1, 11-25].
25, 2018, Plaintiff submitted an inmate administrative remedy
form stating that he was being denied any type of pain
medication. [Def. Ex. I at 10-13]. Thereafter, on August 1,
2018 Dr. Johnny Wright referred Plaintiff to a specialist,
which resulted in a cervical epidural steroid injection as
part of a new pain management plan. [Pl. Ex. B (Pl. Aff.)
Connecticut Department of Correction administrative
parties also largely agree on the salient facts concerning
the Connecticut Department of Correction's
(“DOC”) grievance protocols and Plaintiff's
filings, but the disagree about whether Plaintiff legally
satisfied the exhaustion requirement.
Directive 9.6(6)(A) requires an aggrieved inmate to first
seek informal resolution prior to filing a grievance. [Def.
Ex. F. (DOC Admin. Directive 9.6(6)(A) 5)]. “If the
verbal option does not resolve the issue, the inmate shall
submit a written request via CN 9601, Inmate Request Form.
The inmate must clearly state the problem and the action
requested to remedy the issue.” Id. If the
inmate is dissatisfied with the informal resolution offered,
of if the official fails to respond within fifteen business
days, the inmate must file a grievance. DOC Admin. Directive
9.6(6)(C). The grievance (form is CN 9602) must be filed
within 30 calendar days “of occurrence or discovery of
the cause of the grievance” and the appropriate
correctional official has 30 days to respond. Id.;
see, i.e. [Def. Ex. D (Pl. Level-1 Grievance,
06/10/2018)]. A copy of the Inmate Request Form (9601) must
be included with the grievance (9602) or an inmate must
explain its absence. Id. The correction
official's response to the first level grievance may be
appealed within five days of receipt of the response. DOC
Admin. Directive 9.6(6)(K). Level 2 is the final appeal, with
limited exceptions not at issue here. Id.
Osborn, inmates file their Inmate Request Forms, grievances,
and grievance appeals in designated “Administrative
Remedies” boxes. Def. D. Conn. Civ. L. R. 56(a) ¶
29. Each grievance and grievance appeal at Osborn is logged
and maintained by Officer Steven Acanto. Id.
different administrative remedy enables an inmate to seek
formal review of “any health provision, practices,
diagnosis or treatment.” [Def Ex. J] (DOC Admin.
Directive 8.9(1), Health Services Review)]. Administrative
Directive 8.9 sets forth two types of health service review:
(1) the review of a diagnosis and treatment and (2) the
review of an administrative issue. DOC Admin. Directive
8.9(9). The review of treatment and diagnosis includes a
decision not to treat an inmate or a condition. DOC Admin.
administrative grievance, an inmate must first attempt to
seek an informal resolution using a written request form CN
9601. DOC Admin. Directive 8.9(10). If the inmate is
dissatisfied with a diagnosis of treatment, and attempted
informal resolution does not resolve the issue, the inmate
may file a Health Services review using CN Form 9602. DOC
Admin. Dir. 8.9(11). Inmates at Osborn file their health
services reviews in a designated “Health Service
Review/Remedies” box and are logged accordingly. Def.
D. Conn. Civ. L. R. 56(a) ¶¶ 46-49. During his
incarceration, Plaintiff filed six health service reviews,
which will be discussed in the fact section pertaining to
Plaintiff's claims against Dr. Freston. [Def. D. Conn.
Civ. L. R. 56(a) ¶ 50].
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the burden of
proving that no genuine factual disputes exist. See
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.
2010). “In determining whether that burden has been
met, the court is required to resolve all ambiguities and
credit all factual inferences that could be drawn in favor of
the party against whom summary judgment is sought.”
Id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Matsushita Electric
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
means that “although the court should review the record
as a whole, it must disregard all evidence favorable to the
moving party that the jury is not required to believe.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 151 (2000); see Welch-Rubin v. Sandals Corp.,
No. 3:03-cv-00481, 2004 WL 2472280, at *14 (D. Conn. Oct. 20,
2004) (“At the summary judgment stage of the
proceeding, [the moving party is] required to present
admissible evidence in support of their allegations;
allegations alone, without evidence to back them up, are not
sufficient.”) (citing Gottlieb v. Cnty of
Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez
v. Conn. State Library, 817 F.Supp.2d 28, 37 (D. Conn.
2011). Put another way, “[i]f there is any evidence in
the record that could reasonably support a jury's verdict
for the nonmoving party, summary judgment must be
denied.” Am. Home Assurance Co. v. Hapag
Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d
Cir. 2006) (internal quotation marks and citation omitted).
a party who opposes summary judgment “cannot defeat the
motion by relying on the allegations in his pleading . . . or
on conclusory statements, or on mere assertions that
affidavits supporting the motion are not credible.”
Gottlieb, 84 F.3d at 518 (citations omitted). Nor
will “conclusory statements, conjecture, or speculation
by the party resisting the motion” defeat summary
judgment. Kulak v. City of New York, 88 F.3d 63, 71
(2d Cir. 1996). Where there is no evidence upon which a jury
could properly proceed to find a verdict for the party
producing it and upon whom the onus of proof is imposed, such
as where the evidence offered consists of ...