Zigmund v. Foster

• Decision Date: 30 June 2000
• Docket Number: No. 3:97CV1989 (GLG) (JGM).,3:97CV1989 (GLG) (JGM).
• Citation: 106 F.Supp.2d 352
• Court: U.S. District Court — District of Connecticut
• Parties: Victor L. ZIGMUND, Jr. v. Dr. Hilliard FOSTER, et al.<SMALL><SUP>1</SUP></SMALL>

106 F.Supp.2d 352

Victor L. ZIGMUND, Jr. v. Dr. Hilliard FOSTER, et al.¹

No. 3:97CV1989 (GLG) (JGM).

United States District Court, D. Connecticut.

June 30, 2000.

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RULING AND ORDER

GOETTEL, District Judge.

The plaintiff filed this action pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. He claims that the defendants, Dr. Carl Chi, Dr. John Young, Ronald Hoyte, Georgia Hutchinson, Louise Patterson and Dr. Hilliard Foster, violated his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution, the Connecticut Constitution and the Connecticut Patient's Bill of Rights, by depriving him of his radio and private room without affording him due process, confining him in seclusion and four-point restraints and interfering with his rights of free speech and access to the courts. Pending is the defendants' motion for summary judgment. For the reasons that follow, the defendants' motion is granted.

Standard of Review

In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court must grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact ....'" Miner v. Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (citation omitted). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a motion for summary judgment is supported by documentary evidence and sworn affidavits, the nonmoving party must present "significant probative evidence to create a genuine issue of material fact." Soto v. Meachum, Civ. No. B-90-270 (WWE), 1991 WL 218481, at *6 (D.Conn. Aug. 28, 1991).

"[T]he mere verification by affidavit of one's own conclusory allegations is not sufficient to oppose a motion for summary judgment." Greene v. Georgia Pardons & Parole Bd., 807 F.Supp. 748, 750 n. 5 (N.D.Ga.1992) (citing Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir.1984)). An affidavit in which the plaintiff merely restates the conclusory allegations of the complaint and denies the truth of the affidavits filed by the defendants is insufficient to create an issue of fact that would make summary judgment inappropriate. Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972). As one court has stated, to permit such an affidavit to form the basis of denying the defendants' motion for summary judgment "would amount to permitting the plaintiff to keep [his] case in court merely by swearing that [he] has a case." Zenith Vinyl Fabrics Corp. v. Ford Motor Co., 357 F.Supp. 133, 139 (E.D.Mich.1973).

The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). See also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992).

Facts²

At all times relevant to this action, the plaintiff, a state aquittee subject to the jurisdiction of the Psychiatric Security Review Board, (one who was found not guilty of criminal charges by reason of lack of capacity due to mental disease or defect), resided on Unit 2 at the Whiting Forensic Division of the Connecticut Valley Hospital in Middletown, Connecticut ("Whiting"). Whiting is a maximum security facility at which the state provides treatment to patients who are mentally ill and dangerous.

Unit 2 employs the Social Learning Program, developed by defendant Dr. Foster, to encourage patients to participate in their rehabilitation. The staff uses a point system to evaluate the behavior of all patients on Unit 2. Points are awarded for positive behaviors, such as participation in mandatory and voluntary activities and deducted for negative behaviors. Points are tabulated weekly. The point total, in large part, determine the patient's level, ranging from 0 to 5. The system also includes a ground level, below level 0, for patients who exhibit physical violence, engage in self-destructive behavior or attempt to assault staff or other patients. The higher a patient's level, the more privileges he is afforded.³ One such privilege is a private room. Upon attaining level 5, a patient is eligible for, but not guaranteed, a private room. Assignment to a private room is determined by a patient's rating, his behavior in the unit, room availability and unit needs.

On April 23, 1997, the plaintiff was rated at level 5. He had been afforded the privileges of assignment to a private room and more extensive use of his personal radio. At approximately 8:00 a.m. on April 24, 1997, the plaintiff noticed that legal mail he had placed in the patients' mailbox three days earlier had not been mailed. Outgoing mail is picked up by Whiting security personnel; it is not mailed by unit staff. The plaintiff engaged in a discussion with staff about the mail and then proceeded to walk to a seclusion room for a "time-out."⁴ At approximately 10:30 a.m., defendants Foster and Lewis opened the door of the seclusion room and told the plaintiff that he would be restricted from using a pen for one week because he had thrown a pen at staff. In response, the plaintiff spit and stated, "this is what I think of how you treat people around here."

The plaintiff had previously been treated for Hepatitis B and Hepatitis C. Staff members consulted with psychiatrist Dr. Khorramzadeh and placed the plaintiff in four-point restraints. After approximately 45 minutes, defendant Dr. Young, another psychiatrist, spoke with the plaintiff and ordered a medicating tranquilizer to calm the plaintiff. Although the plaintiff denies any contact with Dr. Young, progress notes reveal that Dr. Young found the plaintiff to be agitated, hitting the mattress with his head, biting the straps and using profane language. The plaintiff was removed from four-point restraints at approximately 1:40 p.m. and returned to seclusion. The plaintiff was returned to four-point restraints at 4:00 p.m. and remained there until 11:30 a.m. the following morning, when he was released and returned to seclusion. While in four-point restraints, the plaintiff was monitored by staff every fifteen minutes. The plaintiff was not checked by a physician during his second period of confinement in four-point restraints.

As a result of the spitting incident, the plaintiff's level was reduced from level 5 to ground level. He was moved from a private room into a dormitory. The plaintiff did not have the use of a personal radio in the dormitory.

On July 14, 1997, the plaintiff again attained level 5. He spoke to Dr. Young about being transferred to a private room. The request was denied. On July 23, 1997, Dr. Young informed the plaintiff that his behavior on the previous day was unacceptable. The following day, the plaintiff lost his level 5 rating. The plaintiff again attained level 5 on August 4, 1997. The plaintiff was transferred to another unit on January 14, 1998.

Discussion

The defendants have filed a motion for summary judgment on nine grounds: (1) the plaintiff has not alleged facts sufficient to demonstrate a deprivation of due process based on property or liberty rights under the Fourteenth Amendment because a private room and personal radio are not property rights protected by the United States Constitution and seclusion or fourpoint restraints are not conditions of confinement warranting due process protection, (2) the plaintiff is not a member of any protected class entitled to protection under the Equal Protection Clause, (3) the plaintiff has not demonstrated that his rights to free speech or of access to the courts have been violated by the defendants, (4) the plaintiff fails to state a claim under the Eighth Amendment, (5) the plaintiff fails to state a valid claim of retaliation, (6) the plaintiff fails to allege sufficient facts to show that the defendants conspired against him, (7) the defendants are entitled to qualified immunity in their individual capacities, (8) the defendants have not violated the plaintiff's rights under state law, and (9) the prior pending action doctrine bars many of the plaintiff's arguments.

In considering the rights of an institutionalized or hospitalized person, the courts look to the law developed in cases concerning persons confined in correctional institutions. See Falter v. Veterans Admin., 632 F.Supp. 196, 204 (D.N.J.1986). See also Buthy v. New York Comm'r of Office of Mental Health, 818 F.2d 1046, 1050 (2d Cir.1987) (upholding restrictions imposed by forensic psychiatric center because rules were "reasonable directed at the threat to institutional security posed by the forensic unit population, a legitimate state concern"). This is particularly appropriate in the case of persons, like plaintiff, who are involuntarily confined because of criminal acts.

I. First Amendment Claims

The plaintiff claims that the actions of the defendants have chilled his...