Santana v. Correct Care Solutions LLC et al

Filing 70

OPINION AND ORDER re: 51 MOTION for Summary Judgment filed by June Yozzo, Wanda Smithson, Correct Care Solutions LLC, Ulloa, Lynda Beyer, Westchester County, J Watson, New York Correct Care Solutions Medical Services P.C. For the foregoing reasons, defendants' motion for summary judgment is GRANTED. The Clerk of the Court is directed to close this motion (Docket No. 51) and this case. (Signed by Judge Shira A. Scheindlin on 5/6/2014) (lmb)

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STATES DISTRICT COURT
SOUT!ffERN DISTRICT OF NEW YORK

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DATEfILED: 5'/itr1 JL\
J

PEDRO SANTANA,
Plaintiff,

OPINION AND O@ER

"-against -

COiltECT CARE SOLUTIONS, LLC,
NEWiYORK CORRECT CARE
SOLQtIONS MEDICAL SERVICES, P.C.,
WANDA SMITHSON, DR. RAUL ULLOA,
JUN:E1 YOZZO, LINDA BEYER,
WES]CHESTER COUNTY, JEAN
WATSON,

13 Civ. 1549

(S~S)

Defendants.

SHIRJA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Pedro Santana, presently incarcerated and proceeding pro se,'brings

this a¢tion pursuant to section 1983 of Title 42 of the United States Code. Santana
I

.

sues Westchester County ("the County"), Correct Care Solutions, LLC ("CCS"),
New York Correct Care Medical Solutions, P.C. ("NYCCS"), Linda Bey~r, Wanda
Smitqson, Dr. Raul Ulloa, Jean Watson, and June Yozzo alleging that the$e
!

.

defentlants deprived Santana of medical treatment in violation of the Eighth
Amendment. Santana seeks injunctive relief, a declaration that
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defendant~

violated

\

his constitutional rights, and punitive damages in the amount of $9,999,000 against
each defendant.
Defendants move for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure on the grounds that Santana was not deprived of
any constitutional right and that defendants were not deliberately indifferent to
Santana’s serious medical needs. For the reasons stated below, defendants’ motion
for summary judgment is GRANTED.
II.

BACKGROUND1
CCS is a limited liability company that provides medical care to

inmates at Westchester County Jail, and NYCCS is its wholly owned subsidiary.2
Dr. Ulloa, Nurse Beyer, and Nurse Watson were employees of CCS working at
Westchester County Jail at all relevant times.3 Smithson is the Deputy

1

The facts recited below are drawn from the pleadings, the parties’
Local Civil Rule 56.1 Statements, the declarations submitted in connection with
this motion, and the exhibits attached thereto. These facts are undisputed unless
otherwise noted. Where disputed, the facts are viewed in the light most favorable
to the nonmoving party. See Beard v. Banks, 548 U.S. 521, 529–30 (2006).
2

See Memorandum of Law in Support of Defendants’ Motion for
Summary Judgment (“Def. Mem.”) at 1.
3

See id. at 2.
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Commissioner of Corrections for the County, and Yozzo is the County’s former
Medical Liaison for the Westchester County Jail.4
On October 10, 2012, Santana was arrested in Westchester County
and held for twenty-four hours at the police precinct.5 He was then transferred to
Westchester County Jail where Nurse Watson performed his medical intake
examination.6 During this examination, Santana informed Watson that he has
multiple medical conditions including diabetes, hypertension, high cholesterol, and
sleep apnea.7 Santana explained that he had been prescribed a continuous positive
airway pressure (“CPAP”) machine to treat his sleep apnea.8 Watson made a note
in the record that Santana has “unspecified sleep apnea,” but told Santana that she
could not issue a CPAP machine “without a prescription.”9 Santana submitted a
4

See id.

5

See Deposition of Santana (“Santana Dep.”), Ex. A to Declaration of
John M. Murtaugh (“Murtaugh Decl.”), counsel for defendants, at 14:2–16:6.
6

Id. at 18:2–16.

7

See id. at 18:6–19:4.

8

See Santana’s Rule 56.1 Statement of Material Facts in Opposition to
Summary Judgment (“Santana 56.1”) ¶ 3. Defendants contend that Santana denied
being treated for any illness or health problem other than flat feet. See Defendants’
Rule 56.1 Statement of Material Facts in Support of Summary Judgment (“Def.
56.1”) ¶ 2.
9

Medical Records of Santana (“Medical Records”), Ex. B to Murtaugh
Decl., at D00035; Santana Dep. at 19:10–13.
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health service request for a CPAP machine the next day.10 On October 12, a
different nurse took Santana’s vitals and observed “no acute distress,” but did not
respond to his CPAP request or make any notes related to sleep apnea.11 Santana
had another medical examination on October 21.12 The record from this
examination, electronically signed by Nurse Watson and Dr. Ulloa, notes that
Santana’s physical and mental status was normal, and he did not report any pain.13
The notes state that Santana intended to submit another health service request for a
“sleep apnea machine and evaluation.”14 Santana submitted no further health
service requests for his sleep apnea until November 9.15
On November 7, Nurse Beyer asked Santana to sign a release
authorizing Westchester County Jail medical personnel to obtain medical records
related to his sleep apnea.16 The next day, a CCS employee spoke to the office
manager at Santana’s primary health care provider and was told that the office had

10

See id. at 21:2–22; Medical Records at D00147.

11

Medical Records at D00134.

12

Id. at D00026–32.

13

Id.

14

Id. at D00032.

15

See Def. 56.1 ¶ 5; Santana 56.1 ¶ 7.

16

See Def. 56.1 ¶ 6; Medical Records at D00091.
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no record that Santana was being treated for sleep apnea.17 The employee then
called multiple health care providers in an attempt to learn where Santana had been
treated.18 She reached a sleep center whose staff could not access its records, but
was told to call back the following week.19 The medical staff made further efforts
to obtain records related to Santana’s sleep apnea treatment over the next three
weeks.20
In the meantime, on November 15, Santana submitted a grievance
complaining that he had yet to be issued a CPAP machine.21 On November 20, the
grievance coordinator denied Santana’s grievance after receiving an email from
Director of Nursing Michael Kelly finding that there was no record of Santana’s
sleep apnea at any of the clinics contacted by the medical staff.22 However, in a
letter to Smithson, Kelly noted that Santana had submitted a request for care on
October 12 and that there was “no documentation to support that the [nurse
17

See Medical Records at D00133.

18

See id.

19

See id.

20

See id.; Def. 56.1 ¶ 8.

21

See J-255-12 New York State Commission of Correction Grievance
Forms (“J-255-12 Grievance Forms”), Ex. C to Declaration of Santana (“Santana
Decl.”), at 1.
22

See id. at 3.
-5-

practitioner] addressed [Santana’s] concern about sleep apnea or a CPAP unit.”23
Santana appealed this denial.24 On November 28, Dr. Ulloa finally verified
Santana’s prescription and recorded in his progress notes that Santana would be
called and started on a CPAP machine that day.25 However, Santana did not have
continuous access to a CPAP machine adjusted to his prescribed setting until
approximately five days later, in part because one of the nurses was not authorized
to adjust the CPAP machine.26 On December 3, Smithson, who had reviewed
Santana’s grievance appeal, sent a memorandum to Santana stating that the
medical staff had had difficulty verifying that Santana had been prescribed a CPAP
machine, but that his complaint had been substantiated and his remedy granted.27
Santana testified that he had access to a CPAP machine on a daily basis and made

23

11/20/12 Letter from Kelly to Smithson, Ex. D to Santana Decl., at 1.

24

See J-255-12 Grievance Forms at 3.

25

See Def. 56.1 ¶ 9; Santana 56.1 ¶ 11.

26

See Santana 56.1 ¶ 5. It is not clear from this record precisely when
Santana had access to an adequate CPAP machine. On December 3, Santana
complained that his CPAP machine was “being taken away from him before he
want[ed] it taken from him.” Medical Records at D00127. Records indicate that
Santana’s CPAP machine was initially kept at “the bubble” where it was not
immediately accessible to him. Id. at D00127–29, D00143–44. Notes in his
medical file indicate that Santana was in “no acute distress” when he was seen by
medical staff on December 3. Id.
27

See J-255-12 Grievance Forms at 5.
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no complaints from December 3 through December 11 when he was transferred out
of the Westchester County Jail.28 Santana was in the custody of the New York City
Department of Corrections between December 11, 2012 and January 29, 2013,
when he was returned to the Westchester County Jail.29
Santana received a CPAP machine as soon as he was returned to the
Westchester County Jail.30 This machine was faulty, but he was issued a
replacement that same day.31 On January 31, Santana submitted a health service
request because his CPAP machine was on the wrong setting and was giving him
“too much pressure.”32 This problem was not addressed by medical staff for three
days.33 Santana testified that he was “continuously complaining” during this time
because his chest and stomach were hurting.34 On February 3, Dr. Ulloa ordered
that Santana was to be kept in the infirmary until a new CPAP machine could be

28

See Def. 56.1 ¶¶ 11–12; Santana Dep. at 27:2–25.

29

See Def. 56.1 ¶¶ 11–12.

30

See Medical Records at D00125; Santana Dep. at 30:10–14.

31

See Santana Dep. at 30:10–25.

32

Id. at 31:3–8; Medical Records at D00142.

33

See Def. 56.1 ¶ 15; Medical Records at D000124.

34

Santana Dep. at 32:4–15.
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obtained.35 Medical staff procured a new CPAP machine, but the machine needed
service, so Santana was held overnight in the infirmary for observation.36 The
notes of the nurse on duty that evening report, “[Santana] is ambulatory and in no
acute respiratory distress. He denies c/o or discomfort [of] any nature.”37 Santana
testified that “everything was fine” with his CPAP machine between February 3
and some time in March, when he had an issue that was “immediately” addressed.38
Santana submitted a grievance on February 10, claiming that the
medical personnel at the Westchester County Jail were not qualified to treat his
sleep apnea and that the CPAP machines were faulty.39 This grievance was denied
on appeal through the final level of review, the Citizens’ Policy and Complaint
Review Board.40 Nonetheless, Santana maintains that medical care at the
Westchester County Jail is inadequate because there is no sleep specialist on staff,
multiple members of the medical staff were not trained to adjust his CPAP

35

See Def. 56.1 ¶ 15; Medical Records at D00124.

36

See Medical Records at D00122.

37

Id.

38

Santana Dep. at 34:6–12.

39

See J-22-13 New York State Commission of Correction Grievance
Forms (“J-22-13 Grievance Forms”), Ex. E to Santana Decl., at 1.
40

See id. at 2–8.
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machine to the proper setting, and he has been given a CPAP machine on the
wrong setting and has had to adjust the settings himself.41 In further support of this
contention, Santana has cited to the case of another Westchester County inmate
whose sleep apnea treatment was similarly delayed.42 He also cites to a 2009
report stating that grievance forms were unavailable to prisoners at Westchester
County Jail, and detailing deficiencies in infection control and dental care.43
Prior to Santana’s incarceration, Dr. Ahmed Fadil diagnosed him with
“moderate” sleep apnea and prescribed a CPAP machine.44 In a “Letter of Medical
Necessity” dated August 20, 2013, Fadil characterized Santana’s condition as
“Severe Obstructive Sleep Apnea,” for which a CPAP machine is “medically
necessary,” and directed that Santana should continue using the CPAP machine

41

See Staffing Plan, Ex. H to Santana Decl. (prison does not have a
sleep specialist on medical staff); Santana Dep. at 33:10–11 (testifying that Ulloa,
Yozzo and a third member of the medical staff “couldn’t even program the [CPAP]
machine”); Id. at 36:9–17 (testifying that Ulloa asked Santana set up his own
CPAP machine); Santana 56.1 ¶ 5 (alleging that a nurse practitioner not named as
a defendant told Santana she was not authorized to touch the CPAP machine).
42

Ross v. Westchester Cnty., No. 10 Civ. 3937, 2013 WL 5178354, at *6
(S.D.N.Y. Sept. 16, 2013), appeal dismissed (Feb. 20, 2014) (inmate raised a
material question of fact as to the County’s deliberate indifference to treating his
sleep apnea over a three month period).
43

See CRIPA Investigation of the Westchester County Jail, Ex. G to
Santana Decl., at 23.
44

Insomnia and Sleep Medicine Records, Ex. A to Santana Decl., at 14.
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indefinitely.45 According to Dr. Fadil, “[f]ailure to treat sleep apnea will result in a
wide range of medical complications to name a few, heart attacks, strokes,
hypertension, and chronic fatigue[.]”46
Defendants’ medical expert, Dr. Fred Lin, who is the Director of the
Mount Sinai Sleep Surgery Center, reviewed Santana’s medical records and
deposition testimony.47 In Dr. Lin’s medical opinion, Santana suffers from
“moderate” sleep apnea.48 Dr. Lin opines that there are no physiological
complications of untreated moderate sleep apnea besides loss of sleep and states
with “a reasonable degree of medical certainty” that Santana’s “moderate sleep
apnea was not the cause of” Santana’s other medical conditions.49 Santana claims

45

8/20/13 Letter of Medical Necessity (“Fadil Letter”), Ex. A to Santana

Decl., at 1A.
46

Id.

47

See Def. Mem. at 12.

48

Report of Dr. Fred Lin (“Lin Report”), Ex. E to Murtaugh Decl., at 1.

49

Id. at 2. Santana objects to the use of this expert report because it was
submitted after the date initially set by Magistrate Judge Peck, September 30,
2013. See Santana 56.1 ¶ 21; Transcript of 9/4/13 Conference before Magistrate
Judge Peck at 8:13–25. However, both the discovery deadlines and the deadline to
file motions for summary judgment were extended after that conference. See
11/4/13 Letter from Murtaugh to Magistrate Judge Peck. Santana does not allege
that he did not receive defendants’ expert report, or that disclosure was not made in
accordance with the new deadlines, merely that defendants did not file an expert
report before September 30.
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that the failure to treat his sleep apnea has caused him physical pain, loss of sleep,
and emotional anguish stemming from his worries that he would die without access
to a CPAP machine.50
III.

APPLICABLE LAW
A.

Summary Judgment
“Summary judgment is appropriate ‘only where, construing all the

evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party’s favor, there is no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.’”51 “A genuine
dispute exists ‘if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’”52 “‘A fact is material if it might affect the outcome of
the suit under the governing law.’”53

50

See Complaint ¶¶ 21, 25; Santana Dep. at 41:13–42:20.

51

Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d
Cir. 2014) (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96
(2d Cir. 2009)) (other quotations omitted).
52

Benn v. Kissane, 510 Fed. App’x 34, 36 (2d Cir. 2013) cert. denied,
134 S. Ct. 78 (2013) (quoting General Star Nat’l Ins. Co. v. Universal Fabricators,
Inc., 585 F.3d 662, 669 (2d Cir. 2009)) (other quotations omitted).
53

Niagara Mohawk Power Corp. v. Hudson River-Black River
Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012) (quoting Bessemer Trust Co. v.
Branin, 618 F.3d 76, 85 (2d Cir. 2010)).
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“The moving party bears the burden of establishing the absence of any
genuine issue of material fact.”54 To defeat a motion for summary judgment, the
non-moving party “‘must do more than simply show that there is some
metaphysical doubt as to the material facts,’”55 and “‘may not rely on conclusory
allegations or unsubstantiated speculation.’”56
“[T]he trial court’s task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are any genuine issues of
material fact to be tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”57 “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.”58

54

Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
55

Valenti v. Penn Mut. Life Ins. Co., 511 Fed. App’x 57, 58 (2d Cir.
2013) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)).
56

Northeast Research, LLC v. One Shipwrecked Vessel, 729 F.3d 197,
214 (2d Cir. 2013) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).
57

Gallo v. Prudential Residential Servs. Ltd. P’ship, 22 F.3d 1219, 1224
(2d Cir. 1994).
58

Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
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Although “[p]ro se parties are entitled to ‘extra consideration’ on
summary judgment motions,” they are not relieved from “the usual requirements of
summary judgment.”59 “Thus, a pro se plaintiff’s ‘failure to allege either specific
facts or particular laws that have been violated renders his attempt to oppose
defendants’ motion [for summary judgment] ineffectual.’”60
B.

Section 1983
“To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege

(1) ‘that some person has deprived him of a federal right,’ and (2) ‘that the person
who has deprived him of that right acted under color of state . . . law.’”61 Section
1983 “does not create a federal right or benefit; it simply provides a mechanism for

59

Maalouf v. Salomon Smith Barney, Inc., No. 02 Civ. 4470, 2004 WL
2008848, at *4 (S.D.N.Y. Sept. 8, 2004) aff’d sub nom. Maalouf v. Citigroup
Global Mkts., Inc., 156 Fed. App’x 367 (2d Cir. 2005) (“‘Proceeding pro se does
not otherwise relieve a litigant from the usual requirements of summary judgment,
and a pro se party’s “bald assertion,” unsupported by evidence, is not sufficient to
overcome a motion for summary judgment.’” (quoting Cole v. Artuz, No. 93 Civ.
5981, 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999))).
60

Anderson v. City of New York Dep’t of Corr., No. 11 Civ. 4069, 2013
WL 702918, at *2 (S.D.N.Y. Feb. 26, 2013) (quoting Kadosh v. TRW, No. 91 Civ.
5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994)).
61

Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v.
Toledo, 446 U.S. 635, 640 (1980)).
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enforcing a right or benefit established elsewhere.”62 Imposition of liability under
section 1983 requires a defendant’s direct involvement in the alleged constitutional
violation.63 “Because vicarious liability is inapplicable to . . . [section] 1983 suits,
a plaintiff must [prove] that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”64 Thus, a
supervisory official cannot be held liable solely on account of the acts or omissions
of her subordinates.65
In Monell v. New York City Department of Social Services, the
Supreme Court held that to establish a claim against a municipality under section
1983, a plaintiff must show harm resulting from an identified municipal “policy or

62

Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423
F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)).
63

See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“It is well
settled in this Circuit that ‘personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under
§ 1983.’” (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991))).
64

Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009) (citations omitted)
(rejecting the argument that “a supervisor’s mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor’s violating the Constitution”).
65

See Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(“[I]n order to establish a defendant’s individual liability in a suit brought under
§ 1983, a plaintiff must show, inter alia, the defendant’s personal involvement in
the alleged constitutional deprivation.”).
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custom.”66 A municipality may not be found liable simply because one of its
employees or agents is guilty of some wrongdoing.67 In the absence of an
established written municipal policy, a plaintiff must prove that a practice “‘was so
persistent or widespread as to constitute a custom or usage with the force of
law,’”68 or that a practice or custom of subordinate employees was “‘so manifest as
to imply the constructive acquiescence of senior policy-making officials.’”69 Thus,
municipal liability under section 1983 may be established through evidence that
“the municipality’s practice, as opposed to its formal policy, is to engage in the
constitutional violation at issue.”70 However, a policy or custom is not established
by a single instance of unconstitutional conduct by an employee.71 “Although
66

436 U.S. 658, 694 (1978).

67

See Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011).

68

Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (quoting
Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004)) (other
quotation marks omitted).
69

Id. (quoting Sorlucco v. New York City Police Dep’t, 971 F.2d 864,
871 (2d Cir. 1992)).
70

Green, 465 F.3d at 80 (citing Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 125–26 (2d Cir. 2004)).
71

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985)
(Brennan, J., concurring in part and concurring in the judgment) (“To infer the
existence of a city policy from the isolated misconduct of a single, low-level
officer, and then to hold the city liable on the basis of that policy, would amount to
permitting precisely the theory of strict respondeat superior liability rejected in
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Monell dealt with municipal employers, its rationale has been extended to private
businesses.”72
C.

Deliberate Indifference to a Serious Medical Need
“[D]eliberate indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the
Eighth Amendment.”73 To establish a claim for deliberate indifference, a plaintiff
must show that the deprivation of medical care was “sufficiently serious” and that
the charged official acted with a “sufficiently culpable state of mind.”74 Thus, “[t]o
show that he has been subjected to cruel and unusual punishment, a prisoner must
satisfy a standard that includes both objective and subjective components.”75
“There is no settled, precise metric to guide a court in its estimation of
the seriousness of a prisoner’s medical condition,”76 and “the serious medical need

Monell.”).
72

Rojas v. Alexander’s Dep’t Store, 924 F.2d 406, 409 (2d Cir. 1990).
Accord Whalen v. Allers, 302 F. Supp. 2d 194, 203 (S.D.N.Y. 2003).
73

Estelle v. Gamble, 429 U.S. 97, 101 (1976).

74

Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).

75

Taylor v. Goorde [sic], No. 13-1196-pr., 2013 WL 6670716, at *1 (2d
Cir. Dec. 19, 2013) (citing Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009)).
76

Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003).
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inquiry must be tailored to the specific circumstances of each case.”77 The Second
Circuit has set forth factors to guide this analysis, 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.”78 A “serious” medical condition is one that may “produce death,
degeneration or extreme pain.”79 “In cases where the inadequacy is in the medical
treatment given, the seriousness inquiry is narrower.”80 When considering an
alleged temporary delay or interruption in the provision of medical care, “the
seriousness inquiry ‘focus[es] on the challenged delay or interruption in treatment
rather than the prisoner’s underlying medical condition alone.’”81
In addition to establishing an objectively serious medical need, a
plaintiff bringing Eighth Amendment deliberate indifference claims must prove

77

Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003).

78

Brock, 315 F.3d at 162 (quoting McGuckin v. Smith, 974 F.2d 1050,
1059–60 (9th Cir. 1992)). Accord Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998).
79

Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005).

80

Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).

81

Id. (quoting Smith, 316 F.3d at 185).
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that the defendants acted with a sufficiently culpable state of mind.82 “An official
acts with the requisite deliberate indifference when that official ‘knows of and
disregards an excessive risk to inmate health or safety.’”83 “[A]n Eighth
Amendment claimant need not show that a prison official acted or failed to act
believing that harm actually would befall an inmate; it is enough that the official
acted or failed to act despite his knowledge of a substantial risk of serious harm.”84
“Deliberate indifference is ‘a state of mind that is the equivalent of criminal
recklessness.’”85 Thus, deliberate indifference is more substantial than mere
disagreement over a course of treatment, negligence or even medical malpractice.86
IV.

DISCUSSION
A.

Seriousness
Santana alleges that he was deprived of sleep apnea treatment in

violation of his constitutional rights. It is undisputed that Santana was not given a
82

See Phelps v. Kapnolas, 308 F.3d 180, 185–86 (2d Cir. 2002).

83

Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825,

837 (1994)).
84

Farmer, 511 U.S. at 842.

85

Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).

86

See Estelle, 429 U.S. at 106 (“[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.”); Chance, 143 F.3d at
703; Stevens v. Goord, 535 F. Supp. 2d 373, 384 (S.D.N.Y. 2008).
-18-

CPAP machine for the first month and a half of his incarceration at the Westchester
County Jail and that he has had intermittent problems with the functioning of
several different CPAP machines. However, the record does not establish that
Santana’s sleep apnea was sufficiently serious such that these lapses in care
amounted to an Eighth Amendment violation.
Both Dr. Lin and Dr. Fadil opine that Santana has “moderate” sleep
apnea.87 Santana’s only evidence that his sleep apnea constitutes a serious medical
condition is an unsworn letter in which Fadil contradicts his medical notes by
stating that Santana has “severe” sleep apnea.88 In his letter, Fadil states that
Santana’s CPAP machine treatment is “medically necessary,” and goes on to list
the complications of untreated sleep apnea: “heart attacks, strokes, hypertension,
and chronic fatigue.”89 But this opinion is not offered as to Santana’s condition. It
is a statement solely about the potential complications of sleep apnea in general.90
But even if Santana had produced sufficient evidence that his sleep
apnea is sufficiently grave to be constitutionally cognizable, because this condition

87

Insomnia and Sleep Medicine Records at 14; Lin Report at 1.

88

Fadil Letter at 1A.

89

Id.

90

I note that Fadil is a treating physician, not a Rule 26 expert. See Fed.
R. Civ. P. 26(a)(2).
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was eventually treated, the focus of the inquiry here is the severity of the delay and
interruption in his care rather than the seriousness of his medical condition.91
There is no indication that Santana’s health declined during the time he was
without a CPAP machine, or that the temporary deprivation significantly affected
his daily activities or caused him chronic and substantial pain.92 Prison medical
records show that Santana did not mention that he was suffering adverse effects
from the lack of a CPAP machine during his October 21 exam or when he was held
for observation on February 3. There is no evidence that Santana was ever in acute
distress or experienced excessive pain. Therefore, Santana has not established that
the delay and intermittent interruption in the provision of a CPAP machine were
sufficiently serious to constitute an Eighth Amendment violation.
B.

Subjective Intent
1.

Watson

When viewed in the light most favorable to Santana, the facts bearing
on Watson’s liability do not give rise to a claim for deliberate indifference to a
serious medical need. The parties dispute whether Santana informed Watson
during his intake exam that he had a prescription for a CPAP machine. Further, it

91

See Salahuddin, 467 F.3d at 280.

92

See Brock, 315 F.3d at 162.
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is unclear whether Kelly’s letter addressing Santana’s grievance refers to Watson
or to the nurse practitioner who failed to follow up on the CPAP request during
Santana’s October 12 medical exam. At most, these facts show that Watson knew
Santana had a prescription for a CPAP machine and failed to follow up on his
CPAP request in a timely manner. There is no indication that she deliberately
denied access to a CPAP machine, or that she knew that the failure to provide a
CPAP machine posed an excessive risk to Santana’s health or safety. Summary
judgment for Watson is GRANTED.
2.

Ulloa

Santana claims that Dr. Ulloa denied Santana CPAP treatment and
was negligent in the supervision and training of subordinates. As evidenced by his
electronic signature on Santana’s medical records, Ulloa learned on October 21
that Santana had sleep apnea and was requesting a CPAP machine. But given that
Santana did not present objective complications or notify staff that he was in pain
during this exam, there is no indication that Ulloa knew or should have known that
Santana’s condition posed a serious risk of “death, degeneration, or extreme
pain.”93 Further, because vicarious liability does not apply in section 1983 cases,
Santana’s claims against Ulloa cannot be based solely on the actions of his

93

Johnson, 412 F.3d at 403.
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subordinates.94 Indeed, the only evidence regarding Ulloa’s supervisory actions
show that he ordered medical personnel to issue Santana a CPAP machine after
speaking to Dr. Fadil. There is no evidence that Ulloa violated Santana’s
constitutional rights through his own acts or omissions or that he was grossly
negligent as a supervisor. Summary judgment for Ulloa is GRANTED.
3.

Beyer

Santana has not produced evidence that Beyer was personally
involved in the alleged deprivation of medical care. He states that Beyer provided
him with a form to authorize the release of his medical records, and after Santana
signed this form, the medical staff endeavored to find his CPAP prescription.
Thus, the only evidence concerning Beyer’s actions shows that she affirmatively
aided Santana’s treatment. Summary judgment for Beyer is GRANTED.
4.

Yozzo

Santana claims that Yozzo refused to authorize his CPAP machine,
failed to provide needed medical attention, and interfered with the orders of a
licensed polysomnographic physician.95 Because Santana has not cited any

94

See Iqbal, 556 U.S. at 676–77.

95

See Complaint ¶ 29.
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evidence of these claims, or even stated specific factual allegations against Yozzo,
summary judgment for Yozzo is GRANTED.
5.

Smithson

Santana claims that Smithson was negligent in her supervision of
subordinates, that she “refused to act on information” of unconstitutional medical
practices in 2009, and that she failed to remedy the medical grievance procedure.96
But Santana has failed to adduce any facts that would support a jury finding that
Smithson was deliberately indifferent to his constitutional rights or that she was
grossly negligent in supervising employees. The record shows that Smithson
reviewed and responded to Santana’s November 15 grievance about his care,
ensuring that his concerns had been investigated and addressed.97 Further, to the
extent that Smithson is responsible for remedying medical grievance policy,
Santana has neither pled nor substantiated that the medical grievance procedure at
the Westchester County Jail is currently ineffective. Santana’s only evidence with
regard to this claim is the 2009 report finding that grievance forms were
unavailable to prisoners at the Westchester County Jail.98 Santana has submitted

96

Id. ¶ 27.

97

See J-255-12 Grievance Forms at 5; 11/20/12 Letter from Kelly to
Smithson at 1.
98

See CRIPA Investigation of the Westchester County Jail at 23.
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multiple grievances, and has not alleged any difficulty in filing these grievances.
Summary judgment for Smithson is GRANTED.99
C.

Monell Claims
Because Santana has not shown that he was deprived of a

constitutional right, there is no basis for Monell liability.100 Summary judgment for
CCS, NYCCS and the County is GRANTED.
V.

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment

is GRANTED. The Clerk of the Court is directed to close this motion (Docket No.
51) and this case.

99

Santana’s submissions have been construed liberally and interpreted
to raise the strongest arguments they suggest. See Triestman v. Federal Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006). It is unclear whether Santana’s claims
that Ulloa, Yozzo, and Smithson were negligent are intended as a theory of liability
under section 1983, or whether he seeks to bring state law claims against these
parties. I do not reach the issue of Ulloa’s alleged negligence, but all pendent state
law claims against Yozzo and Smithson are dismissed without prejudice. See 28
U.S.C. § 1367.
100

See Bobolakis v. DiPietrantonio, 523 Fed. App’x 85, 87 (2d Cir.
2013) (no basis for imposing municipal liability where plaintiff had not suffered a
violation of his constitutional rights).

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Dated: New York, New York
May,, 2014

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- Appearances Plaintiff (Pro Se):
Pedro Santana
# 13R2869
Midstate Correctional Facility
P.O. Box 2500
Marcy, New York 13403

For Defendants:
John Murtaugh, Esq.
Gaines, Novick, Ponzini, Cossu & Venditti LLP
11 Martine Avenue
White Plains, New York 10606
[phone]

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