Feder v. Sposato et al

Filing 133

MEMORANDUM AND OPINION. For the reasons set forth herein, the Court grants defendants' motion for summary judgment. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/7/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-193 (JFB) (WDW)

_____________________

ROBERT M. FEDER,
Plaintiff,
VERSUS

MICHAEL J. SPOSATO, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
May 7, 2014
___________________

JOSEPH F. BIANCO, District Judge:

for his physical pain, and psychiatric
medication for his mental health issues.

Robert M. Feder (“plaintiff”), proceeding
pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against
Armor Correctional Health Services of New
York, Inc. (“Armor”), and Dr. Chang Soo
Rhim (“Rhim”), alleging that Armor and
Rhim violated his Eighth Amendment right
to be free from cruel and unusual punishment
by failing to provide him with adequate
medical care while he was an inmate in the
Nassau County Correctional
Center
1
(“NCCC”). Specifically, plaintiff claims
that he was deprived of morphine medication

Before the Court is Armor and Rhim’s
motion to dismiss the amended complaint
pursuant to Federal Rule of Civil Procedure
12(b)(6), which the Court (with notice to
plaintiff) converted into a motion for
summary judgment pursuant to Federal Rule
of Civil Procedure 56. For the reasons that
follow, the Court grants the motion in its
entirety. Specifically, there is no evidence
that Rhim was deliberately indifferent to
plaintiff’s pain by failing to prescribe him
morphine. In fact, it is uncontroverted that
Rhim prescribed plaintiff Tylenol #3 and
monitored plaintiff’s morphine withdrawal

1

Plaintiff initially commenced this action on January
10, 2011 against Michael J. Sposato (“Sposato”),
James L. Capoziella (“Capoziella”), Dr. Benjamin
Okonta (“Okonta”), Dr. Vincent Manetti (“Manetti”),
Dr. Kanth (“Kanth”), Captain Ford (“Ford”), and CO
Mark Zimmer (“Zimmer”), alleging violations of his
civil rights pursuant to Section 1983. On December

17, 2012, plaintiff filed an amended complaint, adding
as defendants Nassau County (the “County”), the
NCCC, Armor, and Rhim, and adding a claim pursuant
to the Americans with Disabilities Act, 42 U.S.C.
§§ 12101 et seq. (“ADA”). The parties have since
stipulated to the dismissal of plaintiff’s claims with
prejudice as to all defendants except Armor and Rhim.

1

upon plaintiff’s transfer to the NCCC.
Although plaintiff contends that the Tylenol
#3 was insufficient to manage his pain,
plaintiff’s disagreement with Rhim over his
course of treatment does not rise to the level
of an Eighth Amendment violation. In other
words, given the uncontroverted evidence of
the treatment plaintiff did receive, no rational
jury could find that Rhim was deliberately
indifferent to a serious medical need. In
addition, because Rhim’s failure to prescribe
morphine does not constitute a constitutional
violation, plaintiff has no basis to hold
Armor—Rhim’s employer—liable. Finally,
plaintiff cannot hold Armor liable for its
employees’ failures to prescribe morphine or
psychiatric medications because, even if any
of those failings did violate plaintiff’s
constitutional rights, there is no evidence in
the summary judgment record establishing
that Armor had a policy or custom that led to
those alleged constitutional violations.

and out of an SUV, which caused him great
pain. (Id.)
While at the NCCC, plaintiff alleges that
he did not receive proper medical treatment
for his physical pain and mental health issues.
With respect to his physical pain, plaintiff
had been taking morphine pain medication
for almost two years before arriving at the
NCCC. At the NCCC, doctors working for
Armor told plaintiff, “We don’t give that
here.” (Id.) Plaintiff persisted in attempting to
obtain morphine by asking all medical
personnel he saw for his morphine
medication. (Id.) Rhim did prescribe Tylenol
#3 for plaintiff; however, this did nothing to
alleviate plaintiff’s pain or morphine
withdrawal symptoms. (Id. at 4, ¶ IV.A.)
Thereafter, plaintiff endured one week of
throwing up, shakes, and fever as a result of
morphine withdrawal. (Id. at 7.)
Plaintiff filed a grievance, which was
denied. (Id.) He also sent a letter dated
August 13, 2012 to this Court, requesting
information on how to amend the complaint
that he had already filed in this action
(presumably so that he could add allegations
concerning the denial of morphine). (Id.; see
ECF No. 56.) By letter dated August 17,
2012, the Court replied and sent plaintiff
information on how to amend his complaint.
(Am. Compl. at 7; see ECF No. 57.) Two
days later, on August 19, 2012, Rhim learned
that plaintiff was seeking to amend his
complaint and asked plaintiff about it. (Am.
Compl. at 7.) According to plaintiff, Rhim
said that the NCCC had no record of plaintiff
being on morphine, and said that the NCCC
would request his medical records from
Green Haven Correctional Facility (“Green
Haven”), where plaintiff had previously been
an inmate. (Id.) Plaintiff had already signed a
release authorizing the NCCC to access his

I. BACKGROUND
A. Facts
1. The Amended Complaint
The following facts are taken from the
amended complaint filed on December 17,
2012 (“Am. Compl.”), and are not findings of
fact by the Court. Instead, the Court recites
plaintiff’s allegations in order to provide
context for the present motion.
Plaintiff is a New York State prisoner
serving a sixteen year sentence. (Am. Compl.
at 4, ¶ IV.) On August 2, 2012, the Nassau
County Sheriff’s Department transferred
plaintiff from the Downstate Correctional
Facility to the NCCC. (Id.) Although plaintiff
is in a wheelchair and cannot walk, he was
handcuffed, shackled, and told to crawl in

2

monitored plaintiff’s morphine withdrawal
from August 3, 2012 to August 8, 2012—the
first six days after his transfer to the NCCC.
(Doody Decl., Mar. 21, 2013, Ex. B
(“Withdrawal Assessment”). 2 ) This form,
signed by Rhim, indicates that plaintiff
experienced only “mild nausea, no vomiting
and/or diarrhea,” mild anxiety, and “very
mild” headaches during that period of time.
(Id.) In deposition testimony submitted by
Armor and Rhim in support of their
converted motion for summary judgment,
plaintiff confirmed that Armor employees
monitored him during his morphine
withdrawal. Specifically, he testified that a
nurse on the Medical Unit visited him
“[t]hree times a day.” (Doody Decl., Feb. 21,
2014, Ex. 3, Dep. of Robert Michael Feder,
May 30, 2013 (“Feder Dep”), at 71.)

medical records at Green Haven on August 3,
2012. (Id.)
As for his mental health issues, plaintiff
consulted with Manetti at the NCCC on
August 6, 2012. (Id.) Before prescribing
plaintiff any medication, Manetti told
plaintiff that he needed to send a release to
Green Haven to find out what medications
plaintiff was on at the time. (Id.) In the
meantime, Manetti prevented plaintiff from
taking his mental health medication, which
plaintiff had brought with him. (Id.) One
week later, plaintiff met with Manetti again,
and Manetti informed him that he had
experienced difficulty contacting plaintiff’s
doctor at Green Haven. (Id.) Plaintiff could
see his Green Haven file on Manetti’s desk,
however, and he alleges that Manetti never
had any intention of treating his mental
illness. (Id.) As a result of Manetti’s failure
to prescribe plaintiff any psychiatric
medication, plaintiff experienced panic
attacks and hallucinations, and worried that
he might hurt himself. (Id. at 8.) Plaintiff did
talk to a social worker as treatment for his
mental illness. (Id.)

During his morphine withdrawal and
afterward, plaintiff filed multiple “Sick Call
Request” forms complaining about physical
pain and demanding pain medication. (See
Pl.’s Reply Ex. D.) He filed such a form on
August 8, August 13, September 6,
September 13, September 19, September 25,
October 4, and October 11, 2012. (Id.)
Although plaintiff was not given morphine,
Armor’s records (which are uncontroverted)
show that Rhim prescribed him Tylenol,
Motrin, and Tylenol #3. Specifically, Rhim
and other Armor employees prescribed the
following medications on the following
dates: Tylenol on August 3, 2012; Tylenol #3
on August 4 and August 9, 2012; 400 mg of
Motrin two times per day for three days,
beginning on August 8, 2012; and Tylenol #3
two times per day for the period from August

By letter dated October 21, 2012, plaintiff
informed the Court that he had been
transferred back to Green Haven. (ECF No.
77.)
2. Summary Judgment Record
In support of their motion, Armor and
Rhim submitted a “Drug and Alcohol
Withdrawal Assessment Flowsheet,” which
demonstrates how Armor employees
2

By letter dated February 10, 2014, plaintiff objects to
Armor and Rhim’s use of his medical records, and he
requests that the Court “look into” how they acquired
his medical records without his consent. (See ECF No.
127.) “Where, however, a litigant puts his physical or
mental condition into issue in the litigation, he waives
his right to privacy in any relevant medical records.”
Manessis v. N.Y.C. Dep’t of Transp., No. 02-CV-

359SASDF, 2002 WL 31115032, at *2 (S.D.N.Y.
Sept. 24, 2002); see, e.g., Anderson v. City of New
York, No. 05-CV-4422 (ERK) (MDG), 2006 WL
1134117, at *1 (E.D.N.Y. Apr. 28, 2006) (“[T]his
Court finds that plaintiff has placed her mental
condition at issue in this litigation and consequently
has waived her right to prevent the disclosure of her
mental health records.”).

3

17 to October 19, 2012. (See Doody Decl.,
Feb. 21, 2014, Ex. 6, Order Sheet.) Plaintiff
confirmed in his deposition that he received
Tylenol #3 for his pain, which he described
as a “small dosage opiate” that was much
weaker than his morphine medication. (Feder
Dep. at 68.)

22, 2013, and Armor, Rhim, and Manetti
replied on May 6, 2013. Plaintiff filed a surreply on June 12, 2013, to which Armor,
Rhim, and Manetti objected on June 18,
2013.
While the instant motion was pending, on
August 15, 2013, the parties stipulated to the
dismissal of all claims with prejudice against
Sposato, Ford, Zimmer, the County, the
NCCC, Capoziella, Okonta, Manetti, and
Kanth, which the Court so ordered on August
22, 2013. As a result of the stipulation of
dismissal, Armor and Rhim are the only
remaining defendants in this action.

Armor has also submitted Manetti’s notes
on plaintiff’s mental health. (Doody Decl.,
Mar. 21, 2013, Ex. C (“Mental Health
Notes”).) There, Manetii noted that there
were “no objective signs of any
hallucinations or delusions,” of which
plaintiff complained, and that his diagnostic
impression was that plaintiff was
malingering. (Id.) Plaintiff has countered this
evidence with medical records showing that,
before his incarceration at the NCCC,
plaintiff had been hospitalized for three
weeks for serious psychiatric problems. (See
Pl.’s Reply Ex. G.)

Because Armor and Rhim submitted
medical records as exhibits to their motion to
dismiss, the Court converted their motion
into a motion for summary judgment on
December 18, 2013. The Court also afforded
plaintiff the opportunity to submit additional
arguments and supporting evidence in
opposition to Armor and Rhim’s motion, and
provided plaintiff with a copy of the Court’s
Local Rules 56.1 and 56.2. On February 4,
2014, plaintiff submitted a letter in response
to the Court’s order. With leave of the Court,
Armor and Rhim submitted a reply to
plaintiff’s letter, along with supporting
evidence, on February 21, 2014. Plaintiff
then requested leave to submit additional
evidence in opposition to the summary
judgment motion, which the Court granted on
February 24, 2014. Plaintiff submitted
additional evidence on March 19, 2014. This
matter is now fully submitted, and the Court
has fully considered all submissions of the
parties.

B. Procedural History
Plaintiff commenced this action on
January 10, 2011 against Sposato,
Capoziella, Okonta, Manetti, Kanth, Ford,
and Zimmer. At about the same time, on
December 28, 2010, plaintiff commenced a
related action against Edward P. Mangano
(“Mangano”), Sposato, Hon. Mureal
Berkowitz (“Berkowitz”), Hon. Kathleen M.
Rice (“Rice”), and the County. (See Feder v.
Cnty. of Nassau, No. 10-CV-6034
(JFB)(WDW).) On February 3, 2012, the
Court dismissed plaintiff’s claims against
Mangano, Berkowitz, and Rice, and, with the
consent of the parties, consolidated that case
with this case. Thereafter, on December 17,
2012, plaintiff filed an amended complaint in
this action, adding as defendants the County,
the NCCC, Armor, Manetti, and Rhim.

II. STANDARD OF REVIEW
It is well accepted that “‘[w]hen matters
outside the pleadings are presented in
response to a [Fed. R. Civ. P.] 12(b)(6)
motion,’ a district court must either ‘exclude

Armor, Rhim, and Manetti moved to
dismiss the amended complaint on March 21,
2013. Plaintiff opposed the motion on April
4

the additional material and decide the motion
on the complaint alone’ or ‘convert the
motion to one for summary judgment under
Fed. R. Civ. P. 56 and afford all parties the
opportunity to present supporting material.”
Friedl v. City of New York, 210 F.3d 79, 83
(2d Cir. 2000) (quoting Fonte v. Bd. of
Managers of Cont’l Towers Condominium,
848 F.2d 24, 25 (2d Cir. 1988)); see Fed. R.
Civ. P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded
by the court, the motion must be treated as
one for summary judgment under Rule 56.
All parties must be given a reasonable
opportunity to present all the material that is
pertinent to the motion.”). Generally, “a
district court has discretion to convert a
motion to dismiss into a motion for summary
judgment.” Garcha v. City of Beacon, 351 F.
Supp. 2d 213, 216 (S.D.N.Y. 2005). Exercise
of such discretion will turn on “‘whether or
not the proffered material, and the resulting
conversion from the Rule 12(b)(6) to the Rule
56 procedure, is likely to facilitate the
disposition of the action.’” Carione v. United
States, 368 F. Supp. 2d 186, 191 (E.D.N.Y.
2005) (quoting 5C Charles Alan Wright &
Arthur R. Miller, Federal Practice and
Procedure, Civil § 1366 (3d ed. 2004)).

converted motion under the governing
standards for summary judgment.
The moving party bears the burden of
establishing that it is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). This burden requires a
movant to establish “that there is no genuine
dispute as to any material fact and [that] the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In order to do so,
a party must support their position 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 (1986) (summary judgment is
unwarranted if “the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party”).

Here, the Court has concluded, in its
discretion, that conversion of defendants’
motion to dismiss is proper. Specifically,
defendants expressly referenced and
submitted materials outside of the pleadings
for the Court’s consideration. Moreover,
plaintiff was given the opportunity to present
any material pertinent to a summary
judgment motion and was supplied with
copies of Local Civil Rule 56.1 and 56.2 so
that he understood the consequences of a
motion for summary judgment. See
Hernandez v. Coffey, 582 F.3d 303, 309 (2d
Cir. 2009). Thus, the Court will review the

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.
5

Zenith Radio Corp., 475 U.S. 574, 586–87
(1986)) (emphasis in original). As the
Supreme Court stated in Anderson, “If the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” 477 U.S. at 249–50
(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 (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. Grp., 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).

NCCC at all times relevant to this case (id.
¶¶ 4–5). Because Armor was hired to fulfill
the state’s constitutional obligation to
provide necessary medical care for its
inmates, Armor and Rhim were “acting under
the color of state law” for purposes of Section
1983. See, e.g., West v. Atkins, 487 U.S. 42,
54 (1988) (“Contracting out prison medical
care does not relieve the State of its
constitutional duty to provide adequate
medical treatment to those in its custody, and
it does not deprive the State’s prisoners of the
means to vindicate their Eighth Amendment
rights. The State bore an affirmative
obligation to provide adequate medical care
to [plaintiff]; the State delegated that function
to respondent [doctor]; and respondent
voluntarily assumed that obligation by
contract.”); Sykes v. McPhillips, 412 F. Supp.
2d 197, 202 (N.D.N.Y. 2006) (“It is clear that
medical care providers working in a prison
are state actors.”). The Court thus proceeds to
consider whether Armor and Rhim violated
plaintiff’s Eighth Amendment right to be free
from cruel and unusual punishment, such that
they would be liable to plaintiff under Section
1983.

III. DISCUSSION
Pursuant to Section 1983, Plaintiff asserts
that Armor and Rhim denied him medical
care in violation of the Eighth Amendment.
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).

A. Rhim
Plaintiff alleges that Rhim was
deliberately indifferent to plaintiff’s serious
medical needs by denying plaintiff morphine.
As discussed infra, based upon the
uncontroverted evidence in the record, no
rational jury could conclude that Rhim was
deliberately indifferent to plaintiff’s serious
medical needs by denying him morphine.
1. Legal Standard
“Claims for deliberate indifference to a
serious medical condition or other serious
threat to the health or safety of a person in
custody should be analyzed under the same
standard irrespective of whether they are
brought under the Eighth or Fourteenth

As an initial matter, the Court notes that
Armor is a private entity contracted to
provide medical services to inmates at the
NCCC (Doody Aff. ¶ 3), and Manetti and
Rhim were both employed by Armor at the
6

Amendment.” Caiozzo v. Koreman, 581 F.3d
63, 72 (2d Cir. 2009). The Court analyzes
plaintiff’s deliberate indifference claim under
Eighth Amendment jurisprudence.

by failing to take reasonable measures to
abate it.’” Harrison v. Barkley, 219 F.3d 132,
137 (2d Cir. 2000) (quoting Farmer v.
Brennan, 511 U.S. 825, 847 (1994)). Where
an official exhibits deliberate indifference to
a known injury, he or she may be held liable
under Section 1983. See Ortiz v. Goord, 276
F. App’x 97, 98 (2d Cir. 2008).

“[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 (1976) (citation and internal
quotation marks omitted). As the Second
Circuit has explained,

The deliberate indifference standard
consists of both objective and subjective
elements: (1) “the alleged deprivation must
be, in objective terms, ‘sufficiently serious,’”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991)), and (2) “the charged
official must act with a sufficiently culpable
state of mind,” id.; see also Salahuddin v.
Goord, 467 F.3d 263, 279–80 (2d Cir. 2006)
(elaborating on two-part test and describing
first prong as objective and second prong as
subjective); Hayes, 84 F.3d at 620 (stating
that deliberate indifference test requires a
plaintiff to show both an objective
“substantial risk of serious harm,” and that
“prison officials possessed sufficient
culpable intent”). Thus, in order for a plaintiff
to establish a deliberate indifference claim,
he must satisfy both the objective and
subjective prongs. See generally Allah v.
Michael, 506 F. App’x 49, 51 (2d Cir. 2012)
(affirming district court’s dismissal of
plaintiff’s deliberate indifference claim
where plaintiff failed to satisfy objective
prong of the test); Goris v. Breslin, 402 F.
App’x 582, 584 (2d Cir. 2010) (affirming
district court’s grant of summary judgment to
defendants where plaintiff failed to satisfy
objective prong of deliberate indifference
claim); Skates v. Vanbockstaele, No. 11-CV4414 (LAP)(MHD), 2013 WL 658253, at *4–
5 (S.D.N.Y. Feb. 25, 2013) (granting motion
to dismiss where plaintiff could satisfy

[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 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) (internal 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).
Deliberate indifference exists “when an
official ‘knows that inmates face a substantial
risk of serious harm and disregards that risk
7

neither the objective nor the subjective
prongs to his deliberate indifference claim).

(2d Cir. 2003) (quoting Chance, 143 F.3d at
702).

2. Application

Considering the facts in the light most
favorable to plaintiff, the Court cannot
determine as a matter of law whether
plaintiff’s condition—physical pain and
morphine withdrawal—constituted a serious
medical
need.
Armor’s
Withdrawal
Assessment, signed by Rhim, shows that
plaintiff experienced only “mild nausea, no
vomiting and/or diarrhea,” mild anxiety, and
“very mild” headaches during the first six
days following his transfer to the NCCC.
(Withdrawal Assessment.) In his letter to the
Court in response to the Court’s order
converting the instant motion into one for
summary judgment, plaintiff counters that he
suffered “total agony,” “extreme pain,”
vomiting, and an inability to eat that lasted
ten days. (Pl.’s Letter, Jan. 29, 2014.) The
Court need not resolve this factual dispute to
grant summary judgment to Rhim, however,
because,
as
discussed
infra,
the
uncontroverted evidence makes clear that
plaintiff cannot satisfy the subjective prong
of his deliberate indifference claim, even
construing the evidence in plaintiff’s favor.
See Warren v. Purcell, No. 03-CV-8736
(GEL), 2004 WL 1970642, at *8 (S.D.N.Y.
Sept. 3, 2004) (where a plaintiff cannot
establish the subjective prong to his
deliberate indifference claim, the court need
not resolve the issue of whether he has
satisfied the objective prong and shown a
serious medical need). For this reason, even
if a factfinder credited plaintiff’s assertions
concerning the extent of his pain and
suffering, the fact that no rational jury could
find that Rhim acted with the requisite
culpable state of mind requires the grant of
summary judgment for Rhim.

Here, plaintiff alleges that Rhim denied
plaintiff adequate medical care by
discontinuing plaintiff’s morphine treatment
and prescribing plaintiff Tylenol #3 instead.
The Court considers the objective and
subjective elements of this claim.
a. Objective Element
As previously set forth, to determine
whether a deprivation of medical care meets
the objective prong, a plaintiff must show
that “the alleged deprivation [was] . . . in
objective terms, ‘sufficiently serious.’”
Hathaway, 37 F.3d at 66 (quoting Wilson,
501 U.S. at 298). That is, that the alleged
“deprivation ‘den[ied] the minimal civilized
measure of life’s necessities.’” Branham v.
Meachum, 77 F.3d 626, 630–31 (2d Cir.
1996) (alteration in original) (quoting
Wilson, 501 U.S. at 298). It is well known
that “medical conditions[] may be of varying
severity,” but “[t]he standard for Eighth
Amendment violations contemplates ‘a
condition of urgency’ that may result in
‘degeneration’ or ‘extreme pain.’” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)
(quoting Hathaway, 37 F.3d at 66).
There is no specific yardstick by which
courts are to measure the seriousness of a
prisoner’s medical need. There are factors,
however, that courts have referred to in
making such an assessment, including: “(1)
whether a reasonable doctor or patient would
perceive the medical need in question as
‘important and worthy of comment or
treatment,’ (2) whether the medical condition
significantly affects daily activities, and (3)
‘the existence of chronic and substantial
pain.’” Brock v. Wright, 315 F.3d 158, 162

b. Subjective Element
The second requirement for an Eighth
Amendment violation asks whether a prison
8

official acted with a “sufficiently culpable
state of mind.” Salahuddin, 467 F.3d at 280.
This occurs when an 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.”
Farmer, 511 U.S. at 837. Stated differently,
deliberate indifference requires a greater
showing than simply “an inadvertent failure
to provide adequate medical care” or
“negligen[ce] in diagnosing or treating a
medical condition.” Estelle, 429 U.S. at 105–
06; see Hill v. Curcione, 657 F.3d 116, 123
(2d Cir. 2011) (“Medical malpractice does
not rise to the level of a constitutional
violation unless the malpractice involves
culpable recklessness—‘an act or a failure to
act by [a] prison doctor that evinces a
conscious disregard of a substantial risk of
serious harm.’” (quoting Chance, 143 F.3d at
703)).

constitutional claim. So long as the treatment
given is adequate, the fact that a prisoner
might prefer a different treatment does not
give rise to an Eighth Amendment violation.”
Chance, 143 F.3d at 703. “‘The prisoner’s
right is to medical care—not the type or scope
of medical care which he personally
desires.’” United States ex rel. Hyde v.
McGinnis, 429 F.2d 864, 867–68 (2d Cir.
1970) (quoting Coppinger v. Townsend, 398
F.2d 392, 394 (10th Cir. 1968)); see also
Barrett v. Goldstein, No. 07-CV-2483
(RJD)(LB), 2009 WL 1873647, at *3
(E.D.N.Y. June 29, 2009) (stating that “mere
disagreement with prison officials about what
constitutes appropriate care does not state a
claim cognizable under the Eighth
Amendment” (internal quotation marks and
citation omitted)). Indeed, case law is very
clear that a court’s role in reviewing disputes
concerning an inmate’s medical treatment is
“not [to] sit as a medical board of review.
Where the dispute concerns not the absence
of help, but the choice of a certain course of
treatment, or evidences mere disagreement
with considered medical judgment, [a court]
will not second guess the doctors.’”
Hathaway, 37 F.3d at 70 (quoting Sires v.
Berman, 834 F.2d 9, 13 (1st Cir. 1987)); see
also Butler v. Suffolk Cnty. Corr. Facility
Med. Ctr., No. 11-CV-1463 (JFB)(ETB),
2013 WL 1193065, at *8 (E.D.N.Y. Mar. 22,
2013) (“[T]he Court will not attempt to don
the doctor’s white coat in place of its judicial
black robe.”); Madison v. Nesmith, No. 06CV-1488(NAM/DEP), 2009 WL 666398, at
*9 (N.D.N.Y. Mar. 11, 2009) (“[T]he Eighth
Amendment does not afford prisoners a right
to medical treatment of their choosing; the
question of what diagnostic techniques and
treatments should be administered to an
inmate is a ‘classic example of a matter for
medical judgment’ and accordingly, prison
medical personnel are vested with broad
discretion to determine what method of care

Here, it is uncontroverted that plaintiff
was examined shortly after his transfer to the
NCCC, and Rhim and others in Armor’s
employ monitored plaintiff’s morphine
withdrawal for the first six days following his
transfer. (See Withdrawal Assessment.)
Although plaintiff asserts in a conclusory
fashion that Rhim “did nothing” for his
withdrawal (Pl.’s Letter, Jan. 29, 2014), it is
undisputed that Rhim and others monitored
plaintiff’s morphine withdrawal and
prescribed him Tylenol #3. In essence,
plaintiff disagrees with Rhim’s determination
concerning the strength of pain medication
most appropriate for plaintiff’s condition.
However, “[t]he failure to provide stronger
pain medication does not constitute
deliberate
indifference.”
Harris
v.
Westchester Cnty. Med. Ctr., No. 08-CV1128 (RJH), 2011 WL 2637429, at *3
(S.D.N.Y. July 6, 2011). “It is wellestablished that mere disagreement over . . .
proper treatment does not create a
9

and treatment to provide to their patients.”
(quoting Estelle, 429 U.S. at 107)).

that this case . . . involved a consideration of
the inmate’s overall condition and a medical
determination as to the appropriate treatment.
[Plaintiff’s] disagreement with that judgment
does not render it constitutionally infirm.”).

Given that it is uncontroverted that Rhim
monitored plaintiff’s morphine withdrawal
and prescribed him pain medication, no
rational jury could conclude that Rhim was
deliberately indifferent to plaintiff’s medical
needs. See, e.g., Washington v. City of New
York, No. 10-CV-389 (LTS)(JLC), 2011 WL
566801, at *2 (S.D.N.Y. Feb. 15, 2011)
(“The documented medical attention paid to
Plaintiff’s injury and the pain he reported is
patently inconsistent with the showing of
deliberate indifference that would be required
to satisfy the subjective element of the
claim.”). Other courts addressing similar
factual circumstances have reached the same
conclusion. See Hill v. Cavanagh, 223 F.
App’x 595, 596 (9th Cir. 2007) (concluding
that state prison officials were not
deliberately indifferent to a state prisoner’s
medical
needs,
including
alleged
hypertension and back and knee pains, where
medical staff monitored prisoner and
prescribed Motrin for his pains); Mack v.
Wilkinson, 90 F. App’x 866, 867–68 (6th Cir.
2004) (affirming district court’s grant of
summary
judgment
on
deliberate
indifference claim to medical defendants
where medical staff treated plaintiff’s back
pain with Motrin and took necessary steps to
have plaintiff supplied with a substitute
prescription while his Motrin was refilled);
Lewis v. Naku, 650 F. Supp. 2d 1090, 1093
(E.D. Cal. 2009) (where defendant doctor
prescribed Motrin for plaintiff’s ailments,
court noted that “[w]hether [d]efendant made
the correct diagnosis is an issue of negligence
and not deliberate indifference”); Ortiz v.
Makram, No. 96-CV-3285 (AGS), 2000 WL
1876667, at *10 (S.D.N.Y. Dec. 21, 2000)
(“It is not for this Court to determine whether
[plaintiff’s] condition warranted Percocet, or
whether, in light of his condition and his
history of drug addiction . . . [plaintiff]
should have received Motrin. It is sufficient

Accordingly, with respect to plaintiff’s
Section 1983 claim against Rhim, there is no
genuine dispute as to any material fact, and
Rhim is entitled to judgment as a matter of
law.
B. Armor
Plaintiff also seeks to hold Armor liable
for its employees’ denial of morphine and
psychiatric medications. As set forth infra,
the Court concludes that summary judgment
for Armor is warranted.
1. Legal Standard
In Monell v. Department of Social
Services of the City of New York, the Supreme
Court held that “a municipality cannot be
held liable under § 1983 on a respondeat
superior theory,” but may be held liable
where a plaintiff demonstrates that the
constitutional violation complained of was
caused by a municipal “policy or custom.”
436 U.S. 658, 691, 694 (1978). Since then, in
Rojas v. Alexander’s Department Store, Inc.,
the Second Circuit explicitly extended
Monell to Section 1983 suits against private
employers. See 924 F.2d 406, 408 (2d Cir.
1990). There, the Second Circuit held,
“Private employers are not liable under
§ 1983 for the constitutional torts of their
employees, unless the plaintiff proves that
‘action pursuant to official . . . policy of some
nature caused a constitutional tort.’” Id.
(emphasis in original) (quoting Monell, 436

10

U.S. at 691); see Green v. City of New York,
465 F.3d 65, 82 (2d Cir. 2006).

allegations of municipal liability will not
defeat a motion for summary judgment on a
Monell claim.’” Carter v. Cnty. of Suffolk,
No. 12-CV-1191 (JFB)(ARL), 2013 WL
6224283, at *4 (E.D.N.Y. Dec. 2, 2013)
(quoting Sheikh v. City of New York, Police
Dep’t, No. 03-CV-6326 (NGG), 2008 WL
5146645, at *11 (E.D.N.Y. Dec. 5, 2008)).

2. Application
a. Failure to Prescribe Morphine
Here, as noted supra, plaintiff has not
demonstrated that the deprivation of
morphine by Rhim violated his constitutional
rights. Accordingly, there is no basis on
which plaintiff could hold Armor liable for
Rhim’s action under Monell. When a plaintiff
lacks an underlying claim of a deprivation of
a constitutional right, the Monell claim must
be dismissed, as well. See Segal v. City of
New York, 459 F.3d 207, 219 (2d Cir. 2006)
(“Because the district court properly found
no underlying constitutional violation, its
decision not to address the municipal
defendants’ liability under Monell was
entirely correct.”); see also Genovese v.
Town of Southampton, 921 F. Supp. 2d 8, 24–
25 (E.D.N.Y. 2013).

b. Failure to Prescribe Psychiatric
Medication
For substantially the same reasons,
plaintiff cannot hold Armor liable for
Manetti’s failure to prescribe him psychiatric
medications. 3 Plaintiff has neither alleged
any facts nor submitted any evidence
establishing that Manetti was acting pursuant
to an Armor policy or custom when he denied
plaintiff
psychiatric
medication.
Accordingly, the Court must grant summary
judgment to Armor on this claim. See Carter,
2013 WL 6224283, at *4 (“Because there is
absolutely no evidence of an unconstitutional
policy, practice, or custom by the County, the
Court concludes that the County is entitled to
summary judgment on plaintiffs’ Section
1983 claim.”).

Even assuming arguendo that the absence
of an underlying constitutional violation did
not preclude a Monell claim in this case, the
Court concludes that Armor would still be
entitled to summary judgment because of the
absence of any evidence of an
unconstitutional policy, practice, or custom
by Armor as it relates to the denial of
morphine to plaintiff. The only hint of such a
policy comes in the amended complaint, in
which plaintiff alleges that Armor never
prescribed morphine to inmates. (See Am.
Compl. at 4, ¶ IV (in response to plaintiff’s
request for morphine, Armor doctors told
him, “We don’t give that here.”).) However,
plaintiff did not submit any supporting
evidence in opposition to the present motion
for summary judgment, and “‘[c]onclusory

***
In sum, plaintiff has presented no
evidence that would permit a reasonable jury
to find Armor liable for the alleged
constitutional violations committed by its

medication only insofar as it bears on Armor’s liability
under Section 1983.

3

As noted, the parties have stipulated to the dismissal
of all claims against Manetti. The Court thus considers
plaintiff’s claim that he was denied psychiatric

11

employees, and the Court thus grants
summary judgment to Armor.4
IV. CONCLUSION
For the reasons set forth herein, the Court
grants Armor and Rhim’s motion for
summary judgment. 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 and, therefore, in forma pauperis
status is denied for purpose of an appeal. The
Clerk of the Court shall enter judgment
accordingly and close the case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: May 7, 2014
Central Islip, NY
***
Plaintiff proceeds pro se. Defendants
Armor and Rhim are represented John J.
Doody and Suzanne Emily Aribakan, Lewis
Brisbois Bisgaard & Smith, LLP, 77 Water
Street, Suite 2100, New York, NY 10005.

4

Because the Court concludes that Armor and Rhim
are entitled to summary judgment as to all claims on
the merits, the Court need not address Armor and
Rhim’s affirmative defense that plaintiff failed to

exhaust his administrative remedies before filing suit
in federal court. See Jones v. Bock, 549 U.S. 199, 216
(2007) (prisoner’s failure to exhaust administrative
remedies is affirmative defense).

12