Brown v. UConn Managed Health Care et al

Filing 100

ORDER: Plaintiff's Motion 68 for Summary Judgment is DENIED. Signed by Judge Janet Bond Arterton on 7/24/15. (Harris, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

KENYA BROWN,
Plaintiff,

:
:
:
v.
:
:
UCONN MANAGED HEALTH CARE, et al., :
Defendants.
:

Case No. 3:13-cv-931 (JBA)

RULING ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [Doc. #68]
The plaintiff, incarcerated and pro se, has filed a complaint
under 42 U.S.C. ' 1983 against various medical care providers
asserting several claim relating to his medical care.

The plaintiff

has filed a motion for partial summary judgment on one component of
one count of his amended complaint.1

For the reasons that follow,

the plaintiff’s motion is denied.
I.

Facts
The plaintiff has a long history of psychiatric disorders for

which he has been prescribed with antipsychotic medications.
prescribed Risperdal in 2007.
prescription in May 2011.

He was

Dr. Lawlor discontinued the

The plaintiff has not taken Risperdal

since that time.
1

The plaintiff has filed a second motion for partial summary judgment on four
counts of the amended complaint and the defendants have filed a cross-motion for
summary judgment. Those motions will be addressed in a separate ruling. The
defendants’ motion for summary judgment is considered, however, as their
opposition to the plaintiff’s motion.

The plaintiff contends that he experienced side effects from
taking Risperdal in combination with Prozac.

In this action, the

plaintiff asserts only claims for a pituitary microadenoma and sexual
dysfuction.2
An MRI performed in January 2013, showed a pituitary
microadenoma.

The microadenoma is a stable, benign, non-hormone

producing cyst.

The plaintiff underwent additional MRIs in March

2014, and October 2014.

The tests showed that the microadenoma

remains stable with no evidence of optic compression.
The plaintiff underwent examination by a neuro-ophthalmologist
in November 2014.

The doctor agreed that the microadenoma is stable

and the plaintiff’s vision is normal.

He concurred with the

monitoring being done by the Department of Correction.
The plaintiff was seen by an endocrinologist in June 2014 and
October 2014.

The doctor conducted a complete endocrine workup and

concluded the tests were normal.
II.

Standard of Review
A motion for summary judgment may be granted only where there

are no issues of material fact in dispute and the moving party is
therefore entitled to judgment as a matter of law.
2

See Rule 56(a),

The plaintiff states that he also experienced gynecomastia, an endocrine
disorder resulting in enlarged breast tissue in males,
www.mayoclinic.org/diseases-conditions/gynecomastia/basics/definition/CON-200
28710 (last visited July 21, 2015), as a result of the combined effects of Risperdal
and Prozac. However, the plaintiff has raised that claim in another lawsuit. See
Doc. #81-1 at 1-2.

2

Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009).
The moving party may satisfy his burden “by showing—that is pointing
out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.”

PepsiCo, Inc. v. Coca-Cola

Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation
marks and citations omitted).

Once the moving party meets this

burden, the nonmoving party must set forth specific facts showing
that there is a genuine issue for trial.
255, 266 (2d Cir. 2009).

Wright v. Goord, 554 F.3d

He must present such evidence as would allow

a jury to find in his favor in order to defeat the motion for summary
judgment.

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

Merely verifying the allegations of the complaint in an affidavit,
however, is insufficient to oppose a motion for summary judgment.
Zigmund v. Foster, 106 F. Supp. 2d 352, 256 (D. Conn. 2000) (citing
cases).
When reviewing the record, the court resolves all ambiguities
and draws all permissible factual inferences in favor of the party
against whom summary judgment is sought.

Loeffler v. Staten Island

Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009).

If there is any

evidence in the record on a material issue from which a reasonable
inference could be drawn in favor of the nonmoving party, summary
judgment is inappropriate.

Security Ins. Co. of Hartford v. Old

Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
3

However,

the existence of a mere “scintilla” of evidence supporting the
plaintiff’s position is insufficient to defeat a motion for summary
judgment.

Harvey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d

Cir. 2008).
III. Discussion
In his amended complaint, the plaintiff clearly indicated that
he asserts only federal claims for violation of the First and Eighth
Amendments.

See Doc. #45 at 1, 2.

The plaintiff includes eight counts in his amended complaint
captioned: (1) inadequate psychiatric care; (2) inadequate medical
care; (3) denial of access to treatment; (4) delay of medical care;
(5) interference with medical treatment/protected speech; (6)
failure to inquire, essential medical/inadequate care and failure
to warn; (7) inadequate medical and mental health care; and (8)
retaliation/protected speech.

The plaintiff seeks summary

judgment on the failure to warn component of count six.
The plaintiff argues that the defendants ignored interaction
warnings of prescribing Risperdal and Prozac together and failed to
warn him about the possible side effects of Risperdal as well as the
possible combined effects of Risperdal and Prozac.

This claim

covers the period from 2007 until May 2011, and involves defendants
Bonaserra, Burns, Gagne, Lawlor and Panella.
To prevail on a claim for deliberate indifference to a serious
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medical need, the plaintiff must demonstrate both that his medical
need was serious and that the defendants acted with a sufficiently
culpable state of mind.

See Smith v. Carpenter, 316 F.3d 178, 184,

(2d Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)).
There are objective and subjective components to the deliberate
indifference standard.
Cir. 1994).

See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d

Objectively, the alleged deprivation must be

“sufficiently serious.”

Wilson v. Seiter, 501 U.S. 294, 298 (1991).

The condition must produce death, degeneration or extreme pain.
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).

See

Subjectively,

the defendants must have been actually aware of a substantial risk
that the inmate would suffer serious harm as a result of their actions
or inactions.
2006).

See Salahuddin v. Goord, 467 F.3d 262, 279-80 (2d Cir.

Negligence that would support a claim for medical

malpractice does not rise to the level of deliberate indifference
and is not cognizable under section 1983.

See id.

The Eighth Amendment protects prisoners from deliberate
indifference to substantial risk of serious damage to their health.
See Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that exposure
to levels of environmental tobacco smoke that “pose an unreasonable
risk of serious damage to [plaintiff’s] future health” states Eighth
Amendment claim).

Regarding the objective prong of the deliberate

indifference test, the plaintiff is required to demonstrate that “the
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risk that the prisoner complains of [is] so grave that it violates
contemporary standards of decency to expose anyone unwillingly to
such a risk. . . . [T]he prisoner must show that the risk of which
he complains is not one that today’s society chooses to tolerate.”
Id. at 36.
In considering the extent to which prison doctors are required
to warn prisoners regarding possible side effects of medications or
treatments, the Second Circuit has held that “a doctor should not
be required to provide each prisoner-patient with an exhaustive list
of all the possible adverse effects of each aspect of his treatment.”
Pabon v. Wright, 459 F.3d 241, 250 (2d. Cir. 2006).

Rather, the

doctor need only provide “such information as a reasonable patient
would find necessary to make an informed decision regarding treatment
options.”

Id.

Were this not so, any prisoner who received

appropriate treatment but suffered side effects, could claim that
he received insufficient information to make an informed choice to
decline treatment.

Id.; see Phillips v. Wexford Health Sources,

Inc., 522 F. App’x 364, 366-67 (7th Cir. 2013) (failure to warn of
possible side effects of Bactrim not deliberate indifference where
prisoner experienced three of thirty-two identified side effects;
prisoner failed to allege that risks of suffering side effects were
significant, and defendants knew the risks to be significant);
Burgess v. Mar, 395 F. App’x 368 (9th Cir. 2010) (“failure to warn
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[plaintiff] of the potential side effects of pain medication
constitute[s] negligence at most, and not deliberate indifference”).
To prevail on his motion for summary judgment, therefore, the
plaintiff must present evidence showing that there was a substantial
risk of experiencing the side effects, that the defendants perceived
that risk and that a reasonable patient would require information
regarding these side effects before deciding whether to undergo
treatment.
The only information submitted by the plaintiff regarding the
risk of experiencing the two side effects at issue in this case is
the information sheet on Risperdal.

Although the manufacturer

reported an increase in pituitary adenoma, inter alia, in
carcinogenicity studies in mice and rats, the clinical studies and
epidemiological studies to date have not shown a comparable result
in humans.

“[T]he available evidence is considered too limited to

be conclusive at this time.”

Pl.’s Mem. Ex. E, § 5.6.

Pituitary

adenoma is not mentioned in the list of adverse reactions reported
by participants in the clinical trials and fewer than one percent
of participating males reported ejaculation failure.

Id. at § 6.1.

Regarding the combination of Risperdal and Prozac, the information
sheet notes that the combination has been shown to increase the plasma
concentration of Risperdal and indicates that the prescribing
physician should consider this in determining the correct dosage.
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Id. at § 7.10.

There are no specific side effects listed for the

combination.
The plaintiff has not presented any evidence showing that the
risk that he would experience these side effects was substantial or
that a reasonable patient would require this information.

Nor has

he presented any evidence showing that the defendants perceived a
substantial risk that he would experience these side effects.
Accordingly, he has not shown that he is entitled to judgment as a
matter of law.

The plaintiff’s motion for summary judgment is

denied.
IV.

Conclusion
The plaintiff’s motion for partial summary judgment [Doc.# 68]

is DENIED.
It is so ordered.

/s/
Janet Bond Arterton
United States District Judge
Dated at New Haven, Connecticut, this 24th day of July 2015.

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