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Urbanski v. Dep't of Corrections

United States District Court, D. Connecticut

December 5, 2019



          Hon. Vanessa L. Bryant United States District Judge

         Before 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 DISMISSED.


         I. Plaintiff's allegations

         The 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).[1] The parties agree on most of salient facts.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         Upon 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].

         On May 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.) ¶ 23].

         II. Connecticut Department of Correction administrative grievance protocol

         The 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.

         Administrative 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)].[2] “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.

         At 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. ¶¶ 30-32.

         A 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. Directive 8.9(9)(A).

         Like an 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].

         Legal Standard

         Summary 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 (1986)).

         This 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).

         However, 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 ...

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