BOB v. ARMSTRONG

3:02CV1785(RNC)(DFM)

2004 | Cited 0 times | D. Connecticut | May 21, 2004

RULING AND ORDER

Plaintiff brings this action pro se pursuant to 28 U.S.C. § 1983,challenging conditions of his confinement at the New Haven CorrectionalCenter.1 Both sides have filed motions for summary judgment. For thereasons given below, plaintiff's motion is denied and defendants' motionis granted in part and denied in part.

I. Facts

The following facts, taken from defendants' Local Rule 56(a)1statement, are deemed admitted because plaintiff has failed to file aLocal Rule 56(a)2 statement.2 In 1998, before his incarceration,plaintiff suffered a work-related injury to his left hand and was prescribed Celebrex for pain. Defendant Peter Immordino, a physician,treated him from May to October 2000, while he was confined at the NewHaven Correctional Center. Immordino prescribed Motrin for his pain.Celebrex and Motrin are in the same class of drugs, and are used tocontrol inflammation and pain. In April 2001, after plaintiff indicatedthat Motrin was not relieving his pain, a physician at a differentcorrectional facility prescribed Celebrex.

Plaintiff submitted a claim based on this incident against theConnecticut Department of Corrections to the Claims Commissioner ofConnecticut in July 2001. In August 2002, the Claims Commissioner foundthat plaintiff failed to establish a claim of negligence or medicalmalpractice.

On November 8, 2000, plaintiff submitted a request to defendant AntonioSantiago, a prison unit administrator, regarding legal mail that he saidwas not reaching its destination. Plaintiff did not receive a response tothis request and Santiago has no recollection of seeing it. On February11, 2001, plaintiff filed a grievance regarding this problem, referringto a letter dated November 11, 2000, that had not reached itsdestination. The grievance was upheld on March 6, 2001. The reviewernoted that plaintiff's letter had been located and forwarded to itsdestination.

II. Discussion

Summary judgment may be granted only when the evidence, viewed fully and most favorably to the nonmovant, raises no genuine issue ofmaterial fact, and the moving party is entitled to judgment as a matterof law. Fed.R.Civ.P. 56(c). The court must review the record as a whole,credit all evidence favoring the nonmovant, and give the nonmovant thebenefit of all reasonable inferences. Reeves v. Sanderson PlumbingProducts, Inc., 530 U.S. 133, 150-51 (2000).

A. Plaintiff's motion for summary judgment

Plaintiff's motion for summary judgment is his second. Rule 56(a)1 ofthe Local Rules of Civil Procedure for this District provides: "Thereshall be annexed to a motion for summary judgment a document entitled`Local Rule 56(a)1 Statement,' which sets forth in separately numberedparagraphs a concise statement of each material fact as to which themoving party contends there is no genuine issue to be tried." The courtdenied plaintiff's first motion for summary judgment without prejudicebecause he did not submit the required Local Rule 56(a)1 Statement.Plaintiff has again failed to do so. Thus, this motion is also denied.

B. Defendants' motion for summary judgment

Defendants contend that plaintiff's claim against Immordino is barredby res judicata because that claim was litigated before the ConnecticutClaims Commissioner. When a state agency acting in a judicial capacityresolves disputed issues of fact that the parties have had an adequateopportunity to litigate, a federal court hearing a § 1983 action must give the agency's factfinding the same preclusiveeffect that it would receive from the state's courts. Univ. of Tenn. v.Elliot, 478 U.S. 788, 799 (1986). Connecticut courts will give preclusiveeffect to an agency's factfinding only if that factfinding was subject tojudicial review. Convalescent Ctr. of Bloomfield, Inc. v. Dept. of IncomeMaintenance, 208 Conn. 187, 201 (1988). They will not give preclusiveeffect to an agency judgment if the only judicial review available islimited such that no court can review the agency's findings of fact.Cumberland Farms. Inc. v. Town of Groton, 262 Conn. 45, 61-64 (2002). Bystatute, the Claims Commissioner's findings of fact are not subject tojudicial review. Conn. Gen. Stat. §§ 4-164(b), 4-183(j). Thus, even if theother requirements of res judicata are met, this claim is not precluded.

Defendants also argue that plaintiff cannot demonstrate that Immordinoshowed deliberate indifference to his serious medical needs byprescribing Motrin instead of Celebrex, and thus cannot establishinadequate medical care under the Eighth Amendment. See Estelle v.Gamble, 429 U.S. 97, 104 (1976). Plaintiff must show that the deprivationhe suffered was sufficiently serious, and that Immordino had asufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298(1991). Plaintiff asserts, in his verified complaint, that (1)Immordino's prescription of Motrin rather than Celebrex caused him pain and negative side effects, and (2) Immordino saidhe was prescribing Motrin rather than Celebrex, although he knew Celebrexwas effective in relieving plaintiff's pain, because Motrin was cheaper.(Comp. p. 4).3 These assertions, based on plaintiff's personalknowledge, are enough to create issues of fact on the objective andsubjective components of plaintiff's claim. Thus, this claim survivessummary judgment.

Defendants argue that plaintiff cannot show that Santiago violated hisright to send and receive mail. Plaintiff argues that Santiago denied himthat right by failing to respond to his November 2000 request in a timelymanner. To prevail on a claim for violation of this constitutional right,plaintiff must show multiple incidents of mail tampering, invidiousintent on Santiago's part, or actual harm to plaintiff. Davis v.Goord, 320 F.3d 346, 351-52 (2d Cir. 2003). Plaintiff presents noevidence from which a court could find that Santiago was responsible formultiple incidents of mail tampering or had an invidious intent. Heasserts, in his memorandum in opposition to this motion, that Santiago'srefusal to act on his mail request delayed his efforts to obtainCelebrex, thus causing him continued pain and permanent physical damage.(Pl.'s Memo, at 11.) However, he presents no affidavit assertions, orother evidence that is proper under Local Rule 56, to show that he suffered actual harm.Thus, he has not created an issue of fact on Santiago's liability.

III. Conclusion

Accordingly, plaintiff's motion for summary judgment [Doc. #34] ishereby denied and defendants' motion for summary judgment [Doc. #35] ishereby granted as to the claim against Santiago and denied as to theclaim against Immordino.

So ordered.

1. The defendants are John J. Armstrong; Peter Immordino, incorrectlynamed as Peter Immordini; Fred Levesque; and Antonio Santiago,incorrectly named as Captain Santiagio.

2. On November 24, 2003, the court sent plaintiff an Order of Noticeinforming him in clear terms that he must respond to defendants' LocalRule 56(a)1 statement with a Local Rule 56(a)2 statement, and rebutdefendants' affidavits with his own, or the facts asserted by defendantsin those statements and affidavits would be deemed admitted.

3. For summary judgment purposes, assertions in a verified complaintare treated as if they were made in an affidavit. Gayle v. Gonyea,313 F.3d 677, 682 (2d Cir. 2002).

RULING AND ORDER

Plaintiff brings this action pro se pursuant to 28 U.S.C. § 1983,challenging conditions of his confinement at the New Haven CorrectionalCenter.1 Both sides have filed motions for summary judgment. For thereasons given below, plaintiff's motion is denied and defendants' motionis granted in part and denied in part.

I. Facts

The following facts, taken from defendants' Local Rule 56(a)1statement, are deemed admitted because plaintiff has failed to file aLocal Rule 56(a)2 statement.2 In 1998, before his incarceration,plaintiff suffered a work-related injury to his left hand and was prescribed Celebrex for pain. Defendant Peter Immordino, a physician,treated him from May to October 2000, while he was confined at the NewHaven Correctional Center. Immordino prescribed Motrin for his pain.Celebrex and Motrin are in the same class of drugs, and are used tocontrol inflammation and pain. In April 2001, after plaintiff indicatedthat Motrin was not relieving his pain, a physician at a differentcorrectional facility prescribed Celebrex.

Plaintiff submitted a claim based on this incident against theConnecticut Department of Corrections to the Claims Commissioner ofConnecticut in July 2001. In August 2002, the Claims Commissioner foundthat plaintiff failed to establish a claim of negligence or medicalmalpractice.

On November 8, 2000, plaintiff submitted a request to defendant AntonioSantiago, a prison unit administrator, regarding legal mail that he saidwas not reaching its destination. Plaintiff did not receive a response tothis request and Santiago has no recollection of seeing it. On February11, 2001, plaintiff filed a grievance regarding this problem, referringto a letter dated November 11, 2000, that had not reached itsdestination. The grievance was upheld on March 6, 2001. The reviewernoted that plaintiff's letter had been located and forwarded to itsdestination.

II. Discussion

Summary judgment may be granted only when the evidence, viewed fully and most favorably to the nonmovant, raises no genuine issue ofmaterial fact, and the moving party is entitled to judgment as a matterof law. Fed.R.Civ.P. 56(c). The court must review the record as a whole,credit all evidence favoring the nonmovant, and give the nonmovant thebenefit of all reasonable inferences. Reeves v. Sanderson PlumbingProducts, Inc., 530 U.S. 133, 150-51 (2000).

A. Plaintiff's motion for summary judgment

Plaintiff's motion for summary judgment is his second. Rule 56(a)1 ofthe Local Rules of Civil Procedure for this District provides: "Thereshall be annexed to a motion for summary judgment a document entitled`Local Rule 56(a)1 Statement,' which sets forth in separately numberedparagraphs a concise statement of each material fact as to which themoving party contends there is no genuine issue to be tried." The courtdenied plaintiff's first motion for summary judgment without prejudicebecause he did not submit the required Local Rule 56(a)1 Statement.Plaintiff has again failed to do so. Thus, this motion is also denied.

B. Defendants' motion for summary judgment

Defendants contend that plaintiff's claim against Immordino is barredby res judicata because that claim was litigated before the ConnecticutClaims Commissioner. When a state agency acting in a judicial capacityresolves disputed issues of fact that the parties have had an adequateopportunity to litigate, a federal court hearing a § 1983 action must give the agency's factfinding the same preclusiveeffect that it would receive from the state's courts. Univ. of Tenn. v.Elliot, 478 U.S. 788, 799 (1986). Connecticut courts will give preclusiveeffect to an agency's factfinding only if that factfinding was subject tojudicial review. Convalescent Ctr. of Bloomfield, Inc. v. Dept. of IncomeMaintenance, 208 Conn. 187, 201 (1988). They will not give preclusiveeffect to an agency judgment if the only judicial review available islimited such that no court can review the agency's findings of fact.Cumberland Farms. Inc. v. Town of Groton, 262 Conn. 45, 61-64 (2002). Bystatute, the Claims Commissioner's findings of fact are not subject tojudicial review. Conn. Gen. Stat. §§ 4-164(b), 4-183(j). Thus, even if theother requirements of res judicata are met, this claim is not precluded.

Defendants also argue that plaintiff cannot demonstrate that Immordinoshowed deliberate indifference to his serious medical needs byprescribing Motrin instead of Celebrex, and thus cannot establishinadequate medical care under the Eighth Amendment. See Estelle v.Gamble, 429 U.S. 97, 104 (1976). Plaintiff must show that the deprivationhe suffered was sufficiently serious, and that Immordino had asufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298(1991). Plaintiff asserts, in his verified complaint, that (1)Immordino's prescription of Motrin rather than Celebrex caused him pain and negative side effects, and (2) Immordino saidhe was prescribing Motrin rather than Celebrex, although he knew Celebrexwas effective in relieving plaintiff's pain, because Motrin was cheaper.(Comp. p. 4).3 These assertions, based on plaintiff's personalknowledge, are enough to create issues of fact on the objective andsubjective components of plaintiff's claim. Thus, this claim survivessummary judgment.

Defendants argue that plaintiff cannot show that Santiago violated hisright to send and receive mail. Plaintiff argues that Santiago denied himthat right by failing to respond to his November 2000 request in a timelymanner. To prevail on a claim for violation of this constitutional right,plaintiff must show multiple incidents of mail tampering, invidiousintent on Santiago's part, or actual harm to plaintiff. Davis v.Goord, 320 F.3d 346, 351-52 (2d Cir. 2003). Plaintiff presents noevidence from which a court could find that Santiago was responsible formultiple incidents of mail tampering or had an invidious intent. Heasserts, in his memorandum in opposition to this motion, that Santiago'srefusal to act on his mail request delayed his efforts to obtainCelebrex, thus causing him continued pain and permanent physical damage.(Pl.'s Memo, at 11.) However, he presents no affidavit assertions, orother evidence that is proper under Local Rule 56, to show that he suffered actual harm.Thus, he has not created an issue of fact on Santiago's liability.

III. Conclusion

Accordingly, plaintiff's motion for summary judgment [Doc. #34] ishereby denied and defendants' motion for summary judgment [Doc. #35] ishereby granted as to the claim against Santiago and denied as to theclaim against Immordino.

So ordered.

1. The defendants are John J. Armstrong; Peter Immordino, incorrectlynamed as Peter Immordini; Fred Levesque; and Antonio Santiago,incorrectly named as Captain Santiagio.

2. On November 24, 2003, the court sent plaintiff an Order of Noticeinforming him in clear terms that he must respond to defendants' LocalRule 56(a)1 statement with a Local Rule 56(a)2 statement, and rebutdefendants' affidavits with his own, or the facts asserted by defendantsin those statements and affidavits would be deemed admitted.

3. For summary judgment purposes, assertions in a verified complaintare treated as if they were made in an affidavit. Gayle v. Gonyea,313 F.3d 677, 682 (2d Cir. 2002).

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