Miller v. New York City Dept. of Corrections et al

Filing 90

MEMORANDUM AND ORDER granting 79 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, the Court grants defendant's motion for summary judgment on plaintiff's Section 1983 claims. The Clerk of the Court shall enter judgment accordingly and close the case. The Court has mailed a copy of the Memorandum and Order to the pro se plaintiff. Ordered by Judge Joseph F. Bianco on 7/11/2012. (Weber, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-cv-5128 (JFB) (AKT)
_____________________

GLEN MILLER,
Plaintiff,
VERSUS

NASSAU HEALTH CARE CORPORATION,
Defendant.
___________________
MEMORANDUM AND ORDER
July 11, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Glen Miller (“Miller” or
“plaintiff”) brought this action against the
Nassau Health Care Corporation (“NHCC”
or “defendant”), alleging violations of
Miller’s constitutional rights pursuant to 42
U.S.C. § 1983. 1 Plaintiff alleges that
1

Plaintiff originally brought the action against the
County of Nassau (“County”), the New York City
Department of Corrections (“NYC Corrections”), and
the New York City Department of Health and
Hospital (“NYC Health”). Plaintiff submitted a letter,
dated January 9, 2009 indicating that he wanted to
“vacate” NYC Corrections and NYC Health and file
an amended complaint against the County and
NHCC. (Letter from Pl., Jan. 9, 2009, ECF No. 12.)
Accordingly, the Court terminated NYC Corrections
and NYC Health as defendants by Order dated
February 5, 2010. Plaintiff filed an amended
complaint on February 22, 2010 against the County.
On May 12, 2010, plaintiff filed a letter stating that
he intended to sue NHCC, not the County. (Letter
from Pl., May 12, 2010, ECF No. 35.) At a telephone
conference on May 13, 2010, plaintiff indicated that
he would file an amended complaint naming NHCC

defendant showed deliberate indifference to
the plaintiff’s serious medical need when it
(1) allegedly administered the wrong
medication to the plaintiff the evening
before he vomited blood, and (2) failed to
transport the plaintiff to the hospital when
he first reported his dizziness and vomiting
in the early morning hours of October 18,
2008.
The defendant now moves for summary
judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure, on the grounds
that (1) no rational jury could find that
defendant acted with deliberate indifference
to a serious medical need, and (2) plaintiff
has not alleged, or provided any evidence of,
a policy, custom, or practice that led to a
violation of his constitutional rights. For the
reasons set forth below, the Court agrees and
as the defendant. On May 28, 2010, plaintiff filed an
amended complaint naming only NHCC as a
defendant.

56.1 Statements of Facts (“Def.’s 56.1”). 2
Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of New York, 422 F.3d 47, 50 (2d Cir. 2005).

grants defendant’s motion for summary
judgment in its entirety. In particular,
plaintiff’s own sworn testimony (and the
uncontroverted
medical
records)
demonstrates that NHCC administered only
Tylenol to the plaintiff on October 17, 2008.
However, even assuming arguendo that
NHCC employees administered the wrong
medication to plaintiff, no rational jury
could conclude that NHCC acted with
deliberate indifference to plaintiff’s medical
needs because there is no evidence that
NHCC employees acted “while actually
aware of a substantial risk that serious
inmate harm [would] result.” See
Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006).
Additionally, the Court
concludes that no rational jury could
conclude that NHCC was deliberately
indifferent to plaintiff’s medical needs when
its employee sent plaintiff back to his cell
after plaintiff had vomited a clear liquid and
complained of dizziness. Even construing
the facts most favorably to plaintiff, no
rational jury could find that the employee
failed to provide reasonable care or find that
the employee acted “with a sufficiently
culpable state of mind.” Id. Similarly, it is
undisputed that plaintiff was immediately
taken to the hospital once he started
vomiting blood and, thus, no constitutional
violation could have occurred at that
juncture either. Finally, the Monell claim
against the NHCC cannot survive summary
judgment because there is no underlying
Eighth Amendment violation against the
defendant’s employees, and, in any event,
because there is no evidence of a policy,
practice, or custom at the NHCC that
deprived plaintiff of his constitutional rights.

Miller
entered
Nassau
County
Correctional Center (“NCCC”) on or about
July 19, 2008, and was seen at Medical
Intake. (Def.’s 56.1 ¶ 1.) 3 At Medical Intake,
2

The Court notes that plaintiff has failed to file and
serve a response to defendant’s Rule 56.1 statement
of facts, in violation of Local Civil Rule 56.1.
Generally, a “plaintiff[’s] failure to respond or
contest the facts set forth by the defendants in their
Rule 56.1 statement as being undisputed constitutes
an admission of those facts, and those facts are
accepted as being undisputed.” Jessamy v. City of
New Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y.
2003) (quoting NAS Elecs., Inc. v. Transtech Elecs.
PTE Ltd., 262 F. Supp. 2d 134, 139 (S.D.N.Y.
2003)). However, “[a] district court has broad
discretion to determine whether to overlook a party’s
failure to comply with local court rules.” Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(citations omitted); see also Gilani v. GNOC Corp.,
No. 04 Civ. 2935 (ILG), 2006 U.S. Dist. LEXIS
23397, at *4-5 (E.D.N.Y. Apr. 25, 2006) (exercising
court’s discretion to overlook the parties’ failure to
submit statements pursuant to Local Civil Rule 56.1).
Accordingly, in the exercise of its broad discretion
and given plaintiff’s pro se status, the Court will
overlook this defect and will deem admitted only
those facts in defendant’s Rule 56.1 statement that
are supported by admissible evidence and not
controverted by other admissible evidence in the
record. See Jessamy, 292 F. Supp. 2d at 504. Thus, in
the instant case, although plaintiff has failed to
submit any response to the Rule 56.1 statement and
submitted only a one-page, conclusory opposition to
the summary judgment motion, the Court has
carefully reviewed the evidence submitted in the
moving papers and determined that the undisputed
facts demonstrate that his claims create no material
issues of fact and cannot survive summary judgment,
as set forth infra.
3
At his deposition, plaintiff stated that he arrived at
NCCC on July 17, 2008. (Pl.’s Dep. at 6.) The
medical records reflect that he was seen by Medical
Intake on July 19, 2008. (NCCC Medical Intake
Chart.) Whether plaintiff entered NCCC on July 17,

I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the defendant’s Local Civil Rule
2

he was asked about his history and was
examined with a report of “no current
illness” and a “well exam.” (Id. at ¶ 2.) On
October 14, 2008, plaintiff made a sick call
request, and was examined by William
Kupec (“Kupec”), Physician’s Assistant (Id.
at ¶ 3.) At the time, plaintiff was
complaining of a hemorrhoid problem and
pain in his shoulder. (Id.) Kupec examined
the plaintiff, then prescribed Colace,
Metamucil, a suppository for plaintiff’s
hemorrhoid and bowel problem, and Tylenol
for his shoulder pain. (Id.) Kupec also
requested a proctology consult. (Id.)
Plaintiff started receiving the prescribed
medications on October 15, 2008. (Id. at
¶ 4.) He received his last dose of Tylenol
from the medication nurse around 9:00 p.m.
on October 17, 2008. (Id.; Plaintiff’s
Deposition, June 10, 2011 (“Pl.’s Dep.”) at
16-17.)

At 10:45 that same morning, plaintiff was
brought back to Medical because he was
complaining of dizziness with facial
numbness, and reporting that he had
vomited. (Progress Note; Def.’s 56.1 at ¶ 7.)
David Teer (“Teer”), Nurse Practitioner,
examined plaintiff and conducted an EKG.
(Def.’s 56.1 ¶ 8.) During the exam, plaintiff
vomited blood. (Id.) Teer issued a request
that plaintiff be transported immediately to
Nassau
University
Medical
Center
(“NUMC”) by ambulance. (Id.) Plaintiff was
taken to NUMC where he was seen in the
emergency room at 12:30 p.m., and admitted
to the hospital. (Id. at ¶ 9.) After being
treated in the hospital, plaintiff was
discharged
with
a
diagnosis
of
gastrointestinal bleeding and osephegitis and
prescribed Nexium. (Id. at ¶ 10.) During the
remainder of his incarceration at NCCC,
plaintiff had no further stomach problems
and did not complain of dizziness or
vomiting. (Id. at ¶ 11.)

In the early hours of October 18, 2008,
plaintiff felt dizzy and vomited a clear
liquid. (Def.’s 56.1 ¶ 5.) 4 He requested that
Corrections bring him to Medical. (Id.) In
response, plaintiff was taken to Medical,
where he was examined by Perry Intal
(“Intal”), Nurse Practitioner, and returned to
his cell with instructions to return if the
dizziness reoccurred. 5 (Id. at ¶ 6;
Correctional Health Services, Mental Health
Clinic, Progress Note (“Progress Note”).) 6

Plaintiff’s opposition is a one-page
document in which he alleges that he was
given an unlabeled pill on October 18, 2008
that caused him “to get sick.” (Pl.’s Opp.,
Jan. 17, 2012, ECF No. 88.) He alleges that
the doctor refused to take him to the “out
side hospital” and it “almost cost [him his
life.” (Id.)
B. Procedural Background

2008 or July 19, 2008 is not relevant to the outcome
of this motion.
4
At his deposition, plaintiff stated that it was about
midnight when he called for corrections to take him
to sick call. (Pl.’s Dep. at 17.) The medical records
reflect that plaintiff saw Perry Intal at 6:50 a.m.
(Correctional Health Services, Mental Health Clinic,
Progress Note.)
5
Plaintiff asserts that he told the doctor that he was
“not feeling well,” but the doctor “just told me I am
fine.” (Pl.’s Dep. at 20.) Plaintiff “went back to [his]
cell, dizzy, couldn’t walk.” (Id. at 21.)
6
Plaintiff contends that he began to vomit again five
minutes after returning to his cell. He “kicked on the
door to call the C.O.” and they “came back and took

Pro se plaintiff filed the complaint in
this action on October 29, 2009. Plaintiff
filed an amended complaint on January 29,
me back down.” (Id. at 21-22.) Once at Medical,
plaintiff says he saw the same doctor, who called an
ambulance after plaintiff started vomiting blood. (Id.
at 23.) However, medical records reflect that
plaintiff’s first visit to Medical was at 6:50 a.m.,
when he saw Intal, his second visit was at 10:45 a.m.,
when he saw David Teer, and his admission to
NUMC was around 12:30 p.m. (Progress Note;
NUMC Physician Attestation Form.)

3

2010. Plaintiff filed a second amended
complaint on February 22, 2010. Plaintiff
filed a third amended complaint on May 28,
2010. 7 On April 29, 2011, plaintiff filed a
revised Narrative Statement of Facts.

law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).

On September 23, 2011, defendant
moved for summary judgment, which
included the requisite Notice to Pro Se
Litigants pursuant to Local Rule 56.2. On
November 7, 2011, plaintiff filed a letter
asking for an extension of time to file his
opposition to the motion. On November 10,
2011, the Court granted that motion and
gave plaintiff until December 9, 2011 to file
his opposition. On December 7, 2011,
plaintiff filed another request for an
extension of time to respond to the summary
judgment motion, and also requested the
appointment of counsel. On December 19,
2011, the Court denied the request for the
appointment of counsel, but granted plaintiff
another extension of time to file his
opposition to the summary judgment motion
until February 6, 2012.
Plaintiff filed a
one-page letter on January 17, 2012, which
the Court will construe as his opposition.
Defendant submitted a letter on February 27,
2012 asking that the Court consider the
motion fully submitted. The Court has fully
considered the arguments and submissions
of the parties.
II. STANDARD OF REVIEW

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the

The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment 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
7

It appears that the third amended complaint was
meant to supplement the second amended complaint.
Therefore, the Court is considering the allegations in
both the second and third amended complaints for
purposes of this motion.

4

evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

There is no dispute for purposes of this
motion that defendant was acting under
color of state law. The question presented,
therefore, is whether defendant’s alleged
conduct deprived plaintiff of his Eighth
Amendment rights. Plaintiff’s second
amended complaint contains essentially two
allegations in support of his contention that
the defendant was deliberately indifferent to
his medical needs. The first allegation is that
the plaintiff received some unknown
medication the evening before he became
sick. The second allegation is that medical
personnel should have transported the
plaintiff when he first reported his dizziness
and vomiting in the early morning hours of
October 18, 2008.
Defendant argues that, even construing
the facts most favorably to plaintiff, its
actions do not rise to the level of deliberate
indifference as a matter of law. As set forth
below, the Court agrees. Even accepting
plaintiff’s evidence as true and drawing all
reasonable inferences in his favor, a rational
jury could not conclude that defendant was
deliberately indifferent to a serious medical
need.

III. DISCUSSION
A.

Deliberate Indifference to Serious
Medical Need

1.
For the reasons set forth below, the
Court grants summary judgment to
defendant on plaintiff’s Section 1983 claim
for deliberate indifference to a serious
medical need.

Legal Standard

“[D]eliberate indifference to serious
medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment” and
therefore “states a cause of action under
§ 1983.” Estelle v. Gamble, 429 U.S. 97,
104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251
(1976) (quotation marks and citation
omitted).
As the Second Circuit has
explained,

To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
its laws; (2) by a person acting under the
color of state law. 42 U.S.C. § 1983.
“Section 1983 itself creates no substantive
rights; it provides only a procedure for
redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993).

[t]he Eighth Amendment requires
prison officials to take reasonable
measures to guarantee the safety of
inmates in their custody. Moreover,
under 42 U.S.C. § 1983, prison
5

‘knows that inmates face a substantial risk
of serious harm and disregards that risk by
failing to take reasonable measures to abate
it.’”) (quoting Farmer v. Brennan, 511 U.S.
825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994)); Curry v. Kerik, 163 F. Supp. 2d
232, 237 (S.D.N.Y. 2001) (“‘[A]n official
acts
with
the
requisite
deliberate
indifference when that official knows of and
disregards an excessive risk to inmate health
or safety; the official must both be aware of
facts from which the inference could be
drawn that a substantial risk of serious harm
exists, and he must also draw the
inference.’” (quoting Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998) (internal
quotation marks omitted))).

officials are liable for harm incurred
by an inmate if the officials acted
with “deliberate indifference” to the
safety of the inmate. However, to
state a cognizable section 1983
claim, the prisoner must allege
actions or omissions sufficient to
demonstrate deliberate indifference;
mere negligence will not suffice.
Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614,
620 (2d Cir. 1996) (citations omitted).
Within this framework, “[d]eliberate
indifference to a prisoner’s serious medical
needs constitutes cruel and unusual
punishment, in violation of the Eighth
Amendment, as made applicable to the
states through the Fourteenth Amendment.”
Bellotto v. Cnty. of Orange, 248 F. App’x
232, 236 (2d Cir. 2007). Thus, according to
the Second Circuit,

In particular, the Second Circuit has set
forth a two-part test for determining whether
a prison official’s actions or omissions rise
to the level of deliberate indifference:

[d]efendants may be held liable
under § 1983 if they . . . exhibited
deliberate indifference to a known
injury, a known risk, or a specific
duty, and their failure to perform the
duty or act to ameliorate the risk or
injury was a proximate cause of
plaintiff’s deprivation of rights under
the
Constitution.
Deliberate
indifference is found in the Eighth
Amendment context when a prison
supervisor knows of and disregards
an excessive risk to inmate health or
safety . . . . Whether one puts it in
terms of duty or deliberate
indifference, prison officials who act
reasonably cannot be found liable
under the Cruel and Unusual
Punishments Clause.

The test for deliberate indifference is
twofold. First, the plaintiff must
demonstrate that he is incarcerated
under conditions posing a substantial
risk of serious harm. Second, the
plaintiff must demonstrate that the
defendant prison officials possessed
sufficient culpable intent. The
second prong of the deliberate
indifference test, culpable intent, in
turn, involves a two-tier inquiry.
Specifically, a prison official has
sufficient culpable intent if he has
knowledge that an inmate faces a
substantial risk of serious harm and
he disregards that risk by failing to
take reasonable measures to abate
the harm.
Hayes, 84 F.3d at 620 (internal citation
omitted); see also Phelps v. Kapnolas, 308
F.3d 180, 185-86 (2d Cir. 2002) (setting
forth two-part deliberate indifference test).

Ortiz v. Goord, 276 F. App’x 97, 98 (2d Cir.
2008) (citations and quotation marks
omitted); see also Harrison v. Barkley, 219
F.3d 132, 137 (2d Cir. 2000) (“Deliberate
indifference will exist when an official
6

to the seriousness of a medical
condition
include
whether
a
reasonable doctor or patient would
find [it] important and worthy of
comment, whether the condition
significantly affects an individual’s
daily activities, and whether it causes
chronic and substantial pain. In cases
where the inadequacy is in the
medical treatment given, the
seriousness inquiry is narrower. For
example, if the prisoner is receiving
on-going treatment and the offending
conduct is an unreasonable delay or
interruption in that treatment, the
seriousness inquiry focus[es] on the
challenged delay or interruption in
treatment rather than the prisoner’s
underlying medical condition alone.
Thus, although we sometimes speak
of a serious medical condition as the
basis for an Eighth Amendment
claim, such a condition is only one
factor in determining whether a
deprivation of adequate medical care
is sufficiently grave to establish
constitutional liability.

In Salahuddin v. Goord, the Second
Circuit elaborated on this two-part test,
explaining that that the first part is objective
and the second part is subjective. 467 F.3d
263 (2d Cir. 2006). In particular, with
respect to the first, objective element, the
Second Circuit explained:
The first requirement is objective:
the alleged deprivation of adequate
medical care must be sufficiently
serious. Only deprivations denying
the minimal civilized measure of
life’s necessities are sufficiently
grave to form the basis of an Eighth
Amendment violation. Determining
whether a deprivation is an
objectively
serious
deprivation
entails two inquiries. The first
inquiry is whether the prisoner was
actually deprived of adequate
medical care. As the Supreme Court
has noted, the prison official’s duty
is only to provide reasonable care.
Thus, prison officials who act
reasonably [in response to an inmatehealth risk] cannot be found liable
under the Cruel and Unusual
Punishments
Clause,
and,
conversely, failing to take reasonable
measures in response to a medical
condition can lead to liability.

467 F.3d at 279-80 (citations and quotation
marks omitted); see also Jones v.
Westchester Cnty. Dep’t of Corr. Med.
Dep’t, 557 F. Supp. 2d 408, 413-14
(S.D.N.Y. 2008).

Second, the objective test asks
whether the inadequacy in medical
care is sufficiently serious. This
inquiry requires the court to examine
how the offending conduct is
inadequate and what harm, if any,
the inadequacy has caused or will
likely cause the prisoner. For
example, if the unreasonable medical
care is a failure to provide any
treatment for an inmate’s medical
condition, courts examine whether
the inmate’s medical condition is
sufficiently serious. Factors relevant

With respect to the second, subjective
component, the Second Circuit further
explained:
The second requirement for an
Eighth Amendment violation is
subjective: the charged official must
act with a sufficiently culpable state
of mind. In medical-treatment cases
not
arising
from
emergency
situations, the official’s state of mind
need not reach the level of knowing
and purposeful infliction of harm; it
7

question “Was it two Tylenol?” the plaintiff
said, “Yes.” (Id. at 32.) In addition,
defendant has offered uncontroverted
medical records demonstrating that plaintiff
was prescribed Tylenol, as well as an
affidavit from Teer stating that Kupec
prescribed Tylenol for plaintiff’s shoulder
pain. (Affidavit of David Teer at ¶ 4.) Thus,
not only has the plaintiff admitted under
oath that he was given only Tylenol, he
points to no evidence that he was given the
incorrect medicine, other than the fact that
he makes a conclusory allegation
(contradicting his sworn testimony) that he
took an “unlabeled” pill and subsequently
vomited blood. Based upon this record,
there is insufficient evidence for a rational
jury to find that he was given the wrong
medicine.

suffices if the plaintiff proves that
the official acted with deliberate
indifference to inmate health.
Deliberate indifference is a mental
state equivalent to subjective
recklessness, as the term is used in
criminal law. This mental state
requires that the charged official act
or fail to act while actually aware of
a substantial risk that serious inmate
harm will result. Although less
blameworthy than harmful action
taken intentionally and knowingly,
action
taken
with
reckless
indifference is no less actionable.
The reckless official need not desire
to cause such harm or be aware that
such harm will surely or almost
certainly result. Rather, proof of
awareness of a substantial risk of the
harm suffices. But recklessness
entails more than mere negligence;
the risk of harm must be substantial
and the official’s actions more than
merely negligent.

Assuming arguendo that plaintiff had, in
fact, received the wrong medication, and it
caused him to vomit blood, a rational jury
could conclude that defendant’s actions
satisfy the objective prong of the test for
deliberate indifference. A rational jury could
conclude that administering the wrong
medication and causing the patient to vomit
blood constitutes a “sufficiently serious”
deprivation of medical care. Salahuddin,
467 F.3d at 279; compare Price v. Reilly,
697 F. Supp. 2d 344, 359 (E.D.N.Y. 2010)
(no “objectively serious health risk” where
plaintiff received the incorrect dosage of
renal medication, but “testified merely that
the prescribed dosage was ‘wrong’ and was
‘hurting’ him”).

Salahuddin, 467 F.3d at 280 (citations and
question marks omitted); see also Jones, 557
F. Supp. 2d at 414.
2.

Plaintiff Alleges that He Received
the Wrong Medication

In his second amended complaint and
opposition, plaintiff alleges that he was
given an unlabeled pill on October 17, 2008
that caused him to vomit blood. However,
plaintiff admitted at his deposition that he
was given only Tylenol on October 17,
2008. Plaintiff was prescribed Tylenol by
Kupac, a Physician’s Assistant, on October
14, 2008, for shoulder pain. On October 17,
2008, the nurse brought plaintiff his
medication. (Pl.’s Dep. at 16.) Plaintiff
stated in his deposition, “the only
medication that I received on the 17th was
the Tylenol.” (Id. at 17.) In response to the

However, even assuming arguendo
plaintiff was given the wrong medication,
plaintiff has offered no evidence to support
the subjective prong of the test for deliberate
indifference, and, accordingly, cannot show
that defendant was deliberately indifferent to
a serious medical need. As discussed above,
the second requirement for an Eighth
Amendment violation is subjective: whether
8

administered the wrong medication to
plaintiff on October 18, 2008.

the prison official acted with a “sufficiently
culpable state of mind.” Salahuddin, 467
F.3d at 280 (citation omitted). “Deliberate
indifference . . . requires that the charged
official act or fail to act while actually aware
of a substantial risk that serious inmate harm
will result.” Id. Even accepting plaintiff’s
version of events as true and drawing all
reasonable inferences in his favor, no
rational jury could conclude that defendant
acted with deliberate indifference to
plaintiff.

3.

Plaintiff Alleges that He Was Not
Treated Promptly

Additionally, plaintiff alleges that he
should have been taken to the hospital after
his first visit to Medical, rather than after his
second visit. The plaintiff’s and defendant’s
versions of events differ as to the timing and
certain details of these visits.
According to the plaintiff, he began to
feel dizzy and vomit a clear liquid at
approximately midnight on October 18,
2008. (Pl.’s Dep. at 17.) He was taken to
Medical, but says that the doctor told him he
was fine and to return to his cell. (Id. at 20.)
Plaintiff contends that he began to vomit
again five minutes after returning to his cell.
(Id. at 21.) He “kicked on the door to call the
C.O.” and they “came back and took me
back down.” (Id. at 21-22.) Once at Medical,
plaintiff says he saw the same doctor, who
called an ambulance after plaintiff started
vomiting blood. (Id. at 23.)

According to plaintiff’s second amended
complaint (which plaintiff subsequently
contradicted at his deposition), NCCC
officials administered the wrong medication
to plaintiff in the evening of October 17,
2008, and plaintiff later vomited blood. Such
an action does not satisfy the subjective
element of the test for deliberate
indifference. See Rodriguez v. Correct Care
Solutions, 11 Civ. 2285 (PKC)(FM), 2012
U.S. Dist. LEXIS 33444, at *1-2, 7-8
(S.D.N.Y. Mar. 8, 2012) (dismissing
complaint alleging deliberate indifference
where nurse administered the wrong
medication to plaintiff, immediately realized
her mistake, advised plaintiff to “drink a lot
of water,” and plaintiff was not taken to the
jail clinic until later that evening, when he
vomited blood). Accidentally administering
the wrong medication in this situation does
not constitute recklessness, and, at worst,
reaches only the level of negligence. See
Smith v. Carpenter, 316 F.3d 178, 184 (2d
Cir.
2003)
(“Because
the
Eighth
Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute
for state tort law, not every lapse in prison
medical care will rise to the level of a
constitutional violation.” (citing Estelle, 429
U.S. at 105-06)). Accordingly, even
construing the evidence most favorably to
plaintiff, no rational jury could find that
defendant was deliberately indifferent to a
serious medical need when it allegedly

According to the defendant, however,
plaintiff’s first visit to Medical took place at
6:50 a.m., where he saw Nurse Practitioner
Intal and reported that he had felt dizzy and
had vomited a clear liquid. In the medical
record, which indicates that the time of
plaintiff’s visit was 6:50 a.m., Intal wrote
that plaintiff “[d]oes not feel dizzy at
present.” (Progress Note.) Plaintiff asserts,
however, that he still felt dizzy as he
returned to his cell. (Pl.’s Dep. at 21.) Intal’s
notes reflect that he instructed plaintiff to
return to his cell, but to come back to
Medical if the dizziness reoccurred.
(Progress Note; Def.’s 56.1 at ¶ 6.) Plaintiff,
however, asserts that Intal did not tell him to
come back if he felt sick again. (Pl.’s Dep. at
20.)

9

Clause[.]” (citations omitted) (alteration in
Salahuddin)).
Based
upon
the
uncontroverted facts, Intal’s determination
that plaintiff could return to his cell and
report back to Medical if he continued to
feel dizzy constituted a reasonable exercise
of medical judgment. “An inmate is not
entitled to treatment by every available
medical alternative as long as his treatment
is reasonable.” Castro-Sanchez v. New York
State Dep’t of Corr. Servs., 10 Civ. 8314
(DLC), 2011 U.S. Dist. LEXIS 140003, at
*29 (S.D.N.Y. Dec. 6, 2011) (citing Estelle,
429 U.S. at 107). Even assuming arguendo
that Intal’s decision not to provide further
treatment to plaintiff was unreasonable, a
reasonable jury could not conclude that Intal
was deliberately indifferent to a serious
medical need. See Estelle, 429 U.S. at 10506 (“[A]n inadvertent failure to provide
adequate medical care cannot be said to
constitute ‘an unnecessary and wanton
infliction of pain’ or to be ‘repugnant to the
conscience of mankind.’ Thus, a complaint
that a physician has been negligent in
diagnosing or treating a medical condition
does not state a valid claim of medical
mistreatment under the Eighth Amendment.
Medical malpractice does not become a
constitutional violation merely because the
victim is a prisoner.”)

According to the medical record, at
10:45 that same morning, plaintiff was
brought back to Medical because he was
complaining of dizziness with facial
numbness, and reporting that he had
vomited. (Progress Note; Def.’s 56.1 at ¶ 7.)
Nurse Practitioner Teer examined plaintiff
and conducted an EKG. (Def.’s 56.1 at ¶ 8.)
During the exam, plaintiff vomited blood.
(Id.) Teer issued a request that plaintiff be
transported immediately to NUMC by
ambulance. (Id.) Plaintiff was taken to
NUMC where he was seen in the emergency
room at 12:30 p.m., and admitted to the
hospital. (Id. at ¶ 9.) Multiple medical
records indicate that plaintiff was admitted
to NUMC around 12:30 p.m. on October 18,
2008.
Plaintiff’s account that he was seen five
minutes after his initial dizzy spell and then
promptly sent to the hospital actually
presents defendant’s actions in a more
positive light than if approximately four
hours passed between plaintiff’s two visits
to Medical. Nonetheless, regardless of
whether the Court credits the plaintiff’s or
the defendant’s timeline of events, no
rational jury could find that defendant was
deliberately indifferent to a serious medical
need when it did not refer plaintiff to the
hospital until after plaintiff’s second visit to
Medical.

With respect to the subjective element of
the test for deliberate indifference, there is
no evidence from which a rational jury
could find that the NHCC officials acted
with a “sufficiently culpable state of mind.”
Salahuddin, 467 F.3d at 280 (citation
omitted). Intal’s notes indicate that plaintiff
was not dizzy “at present” when Intal
evaluated him on October 18, 2008.
Accordingly, Intal advised plaintiff to return
to the clinic if the dizziness persisted.
Plaintiff asserts, however, that he was still
dizzy when he left Medical and returned to
his cell. (Pl.’s Dep. at 21.) Even assuming
that plaintiff’s version is correct, no rational

With respect to the objective element of
the test for deliberate indifference, the
uncontroverted evidence demonstrates that
Intal provided reasonable care to plaintiff
when he sent plaintiff back to his cell after
the plaintiff had vomited a clear liquid and
complained of dizziness. See Salahuddin,
467 F.3d at 279-80 (“As the Supreme Court
has noted, the prison official’s duty is only
to provide reasonable care. Thus, prison
officials who act reasonably [in response to
an inmate-health risk] cannot be found liable
under the Cruel and Unusual Punishments
10

set forth below, his claim also cannot
survive summary judgment because there is
no basis for Monell liability.

jury could conclude that Intal “fail[ed] to act
while actually aware of a substantial risk
that serious inmate harm will result.” Id.; see
Johnson v. McDonough, 278 F. App’x 866,
868-69, 871 (11th Cir. 2008) (per curiam)
(granting summary judgment to defendants
on deliberate indifference claim where
inmate reported headache, dizziness, and
nausea after being hit on the head, and, after
personnel released inmate from medical
observation on multiple occasions, inmate
ultimately died of an intracerebral
hemorrhage).

Under Monell, a municipal entity may be
held liable under Section 1983 where a
plaintiff demonstrates that the constitutional
violation complained of was caused by a
municipal “policy or custom.” 436 U.S. at
694; see also Patterson v. Cnty. of Oneida,
375 F.3d 206, 226 (2d Cir. 2004). “The
policy or custom need not be memorialized
in a specific rule or regulation.” Kern v.
City of Rochester, 93 F.3d 38, 44 (2d Cir.
1996) (citing Sorlucco v. New York City
Police Dep’t, 971 F.2d 864, 870 (2d Cir.
1992)). A policy, custom, or practice of the
municipal entity may be inferred where
“‘the municipality so failed to train its
employees as to display a deliberate
indifference to the constitutional rights of
those within its jurisdiction.’” Patterson,
375 F.3d at 226 (quoting Kern, 93 F.3d at
44).

Moreover, when plaintiff complained
again of dizziness, corrections officials
immediately returned him to Medical. As
Teer examined the plaintiff, plaintiff
vomited blood. On Teer’s orders, plaintiff
was immediately transported to NUMC by
ambulance. He was seen in the emergency
room at 12:30 p.m., admitted to the hospital,
and ultimately discharged with a diagnosis
of gastrointestinal bleeding and osephegitis
and prescribed Nexium. As the record
reflects, even under plaintiff’s version of the
events, Teer reacted immediately to
plaintiff’s illness by requesting an
ambulance and sending plaintiff to the
hospital.

However, a municipal entity may only
be held liable where the entity itself
commits a wrong; “a municipality cannot be
held liable under § 1983 on a respondeat
superior theory.” Monell, 436 U.S. at 691;
see also Segal v. City of N.Y., 459 F.3d 207,
219 (2d Cir. 2006) (“Monell does not
provide a separate cause of action for the
failure by the government to train its
employees; it extends liability to a municipal
organization where that organization’s
failure to train, or the policies or customs
that it has sanctioned, led to an independent
constitutional violation.”); Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995)
(“A municipality may not be held liable in
an action under 42 U.S.C. § 1983 for actions
alleged to be unconstitutional by its
employees below the policymaking level
solely on the basis of respondeat
superior.”); Vippolis v. Haverstraw, 768
F.2d 40, 44 (2d Cir. 1985) (“A plaintiff who

In sum, given the uncontroverted
evidence in the record, the Court concludes
that no rational jury could conclude that
defendant acted with deliberate indifference
to plaintiff’s medical needs. Accordingly,
the Court concludes that summary judgment
is warranted on the merits in favor of
defendant on plaintiff’s Section 1983 claims.
4. Municipal Liability against NHCC
Liberally construing the complaint,
plaintiff alleges that NHCC is liable under
Section 1983 pursuant to Monell v.
Department of Social Services of the City of
New York, 436 U.S. 658, 690-91 (1978). As
11

IV. CONCLUSION

seeks to hold a municipality liable in
damages under section 1983 must prove that
the municipality was, in the language of the
statute, the ‘person who . . . subjected, or
cause[d] [him] to be subjected,’ to the
deprivation of his constitutional rights.”
(quoting 42 U.S.C. § 1983)).

For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment on plaintiff’s Section 1983
claims. 8 The Clerk of the Court shall enter
judgment accordingly and close the case.
The Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this order
would not be taken in good faith; therefore,
in forma pauperis status is denied for
purposes of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45, 82 S.
Ct. 917, 8 L. Ed. 2d 21 (1962).

Because plaintiff has failed to
demonstrate any Eighth Amendment
violations as to any particular NHCC
employee (for the reasons discussed infra),
he cannot demonstrate that constitutional
violations occurred pursuant to a custom or
policy at NHCC. See Mercado v. City of
New York, 08 Civ. 2855 (BSJ)(HP), 2011
U.S. Dist. LEXIS 140430, at *26 (S.D.N.Y.
Dec. 5, 2011) (because there was “no
independent,
underlying”
Eighth
Amendment violation, there was “no basis
for municipal or supervisory liability”). In
any event, plaintiff has not provided any
evidence of an alleged policy, practice or
custom at NHCC that deprived plaintiff of
his constitutional rights. Accordingly, the
Court grants summary judgment to NHCC
on this claim.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 11, 2012
Central Islip, NY
***
Plaintiff is proceeding pro se, Glen Miller,
17 Creek Street, Montego Bay, WI, Jamaica.
Nassau Health Care Corporation is
represented by Edward J. Troy and
Alexander V. Sansone, Law Office of
Edward J. Troy, 44 Broadway, Greenlawn,
NY 11740.

8

Although plaintiff appears only to be alleging
federal claims under Section 1983, to the extent his
complaint, liberally construed, could be attempting to
assert a state law claim, the Court declines in its
discretion to exercise supplemental jurisdiction over
any such state claims given that no federal claim
survives summary judgment.

12