Brown v. Cade et al

Filing 51

DECISION AND ORDER GRANTING Defendants' 34 Motion for Summary Judgment; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 10/16/2016. (MEAL) Copy mailed to Plaintiff. - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES BROWN,
Plaintiff,
v.

DECISION AND ORDER
11-CV-1023S

BETH CADE, N. SHARP, DR. JADOW RAO,
and R. KILLINGER,
Defendants.

I. INTRODUCTION
In this action, pro se plaintiff James Brown alleges, pursuant to 42 U.S.C. § 1983,
that Defendants Beth Cade, Karen Sharp, Dr. Jadow Rao, and Rosalyn Killinger acted with
deliberate indifference to his medical needs, in violation of his Eighth Amendment rights,
all while Brown was an inmate in the custody of the New York Department of Corrections
and Community Services (“DOCCS”) at the Attica Correctional Facility (“Attica”).
Presently before this Court is Defendants’ Motion for Summary Judgment, which
Brown opposes. (Docket No. 34.) For the following reasons, Defendants’ motion is
granted.
II. BACKGROUND
At all times relevant, Brown was an inmate at Attica, where he received treatment
for a number of medical conditions.

(Defendants’ Statement of Undisputed Facts

(“Defendants’ Statement”), Docket No. 34-1, ¶ 1.) Defendant Dr. Jadow Rao was a
medical doctor at Attica. (Defendants’ Statement, ¶ 2.) Defendants Rosalyn Killinger, Beth
Cade, and Karen Sharp were registered nurses at Attica. (Defendants’ Statement, ¶¶ 3-5.)
Brown’s claims involve Defendants’ treatment of his hepatitis C and the dispensing
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of medicine to treat his back and leg pain.
A.

Hepatitis C Treatment
Brown arrived at Attica in 2005 with a previously diagnosed Hepatitis C condition

that was asymptomatic. (Defendants’ Statement, ¶¶ 9, 11, 13.) Brown had previously
been informed that he was not a candidate for Hepatitis C treatment, and before arriving
at Attica, he had received no treatment. (Defendants’ Statement, ¶¶ 10, 12.)
When Brown arrived at Attica, he was told that his Hepatitis C did not require
treatment, a diagnosis that Defendant Rao confirmed in 2007. (Defendants’ Statement,
¶¶ 14-16.) Rather, Defendant Rao told Brown that he would continue to monitor his liver
status, which he did, ordering a liver biopsy that took place on May 7, 2007. (Defendants’
Statement, ¶¶ 17-18.)

The biopsy revealed the presence of chronic liver disease.

(Defendants’ Statement, ¶ 20.)
Two years later, on May 19, 2009, test results indicated that Brown had elevated
liver enzyme levels and an increased viral load. (Defendants’ Statement, ¶ 57.) On follow
up in October 2009, Defendant Rao determined that Brown was not a candidate for
Hepatitis C treatment because of his elevated liver enzyme levels.
Statement, ¶ 88.)

(Defendants’

Medical staff thereafter continued to monitor Brown’s condition,

including on April 12, 2010, when a physician’s assistant again noted that treatment was
not indicated and monitoring would continue. (Defendants’ Statement, ¶ 103.) At no time
thereafter did Brown’s liver enzyme or viral load test results indicate that treatment was
necessary. (Defendants’ Statement, ¶ 123.)

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B.

Dispensing of Ultram
Along with Hepatitis C, Brown arrived at Attica with back and leg pain, which he had

been more or less experiencing since the 1990s, and which stemmed from his diagnosed
degenerative disc disease. (Defendants’ Statement, ¶¶ 21-24.) Brown had taken a host
of pain medications at different correctional facilities, including Flexural, Naprosyn, and
Tylenol. (Defendants’ Statement, ¶ 25.) Between 2005 and 2008, Brown had occasionally
been prescribed Ultram, an addictive pain medication. (Defendants’ Statement, ¶¶ 26, 27.)
On December 1, 2008, Brown was waiting in line to receive his Ultram from
Defendant Cade when another inmate passed Brown two pills wrapped in cellophane.
(Defendants’ Statement, ¶ 29-31.) When Brown was searched on his way back into the
housing unit, the corrections officer discovered the two pills and informed Defendant Cade
that Brown had been caught with them. (Defendants’ Statement, ¶¶ 32, 33.) Defendant
Cade identified the two pills as Ultram. (Defendants’ Statement, ¶ 34.) After a Misbehavior
Report was filed against Brown, he pled guilty to drug possession and was found guilty of
unauthorized medication and smuggling. (Defendants’ Statement, ¶¶ 35-37.)
The day after this incident, Defendant Rao discontinued Ultram for Brown, after
Defendant Cade informed him that Brown had been caught with the pills in his possession.
(Defendants’ Statement, ¶¶ 38, 39.) Cade maintains that she told Rao about the incident
so that he would know Brown was not taking his medication as prescribed; Brown contends
that Cade informed Rao specifically so that he would discontinue his Ultram. (Defendants’
Statement, ¶¶ 40, 41.) Rao maintains that he discontinued Ultram because Brown was not
taking it, and instead, was hoarding or selling it. (Defendants’ Statement, ¶ 45.)
Brown, however, specifically wanted Ultram, which, as noted, is an addictive pain
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medication. (Defendants’ Statement, ¶ 27.) Ultram, however, was contraindicated due to
Brown’s liver condition. (Defendants’ Statement, ¶¶ 58, 84, 95, 128.) Even so, Brown
claimed that he could not take other pain medications, such as Motrin, Advil, and Tylenol,
because they upset his stomach and made him bleed. (Defendants’ Statement, ¶ 52.) In
addition, Brown walked out of or refused treatment on numerous occasions. (Defendants’
Statement, ¶¶ 19, 53, 55, 60, 67, 68, 114.)
Nonetheless, Brown repeatedly sought Ultram and refused other pain medications.
(Defendants’ Statement, ¶¶ 51 (refusing Motrin on January 6, 2009), 90, 92, 98.) On July
17, 2009, Brown saw Dr. Evans, who prescribed Ultram for 21 days to be administered in
crushed form. (Defendants’ Statement, ¶ 62.) Six days into the course of treatment,
Brown complained that Ultram in its crushed form upset his stomach and made him vomit.
(Defendants’ Statement, ¶ 63.) Brown thereafter refused Ultram in its crushed form on
several occasions. (Defendants’ Statement, ¶¶ 67, 68.)
Dr. Evans changed Brown’s Ultram prescription to 50 mg twice per day on August
7, 2009, but Defendant Rao then discontinued Ultram altogether two days later due to
Brown’s liver issues. (Defendants’ Statement, ¶¶ 72, 76.) But Brown persists in his belief
that Defendant Rao discontinued Ultram because Defendant Cade told him that he (Brown)
was hoarding the pills. (Defendants’ Statement, ¶¶ 77, 82.)
Brown sought Ultram again on January 4, 2010, when he saw a nurse practitioner
for his complaints of pain and told her that he could only take Ultram due to his liver
condition. (Defendants’ Statement, ¶ 92.) The nurse practitioner declined to prescribe
Ultram and instead encouraged Brown to use his TENS unit and back brace. (Defendants’
Statement, ¶ 92.)
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C.

Pain Treatment
In addition to the Ultram that Brown was periodically prescribed, he also received

other forms of treatment for his back and leg pain. He repeatedly saw doctors and other
medical staff, often times several times per month. (Defendants’ Statement, ¶¶ 50, 53, 54,
55, 56, 57, 60, 61, 62, 72, 83, 84, 86, 88, 89, 90, 91, 92, 93, 97, 98, 102, 103, 104.) He
also underwent various diagnostic tests, including full blood panel, CT scan, MRI, and
outside medical consultations. (Defendants’ Statement, ¶¶ 93, 116, 117, 118.) Brown
also received multiple treatments for his pain, including a TENS unit, physical therapy, a
back brace, as well as accommodations, such as a double mattress and a feed-in-cell
order to eliminate having to walk to the mess hall. (Defendants’ Statement, ¶¶ 49, 59, 87,
88, 92, 104, 105, 106.)
III. DISCUSSION
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596,
30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since Brown
is proceeding pro se, this Court has considered his submissions and arguments
accordingly.
Brown has four surviving causes of action, which assert that Defendants
intentionally denied him medical treatment in violation of his Eighth Amendment rights.1
First, Brown alleges that Defendant Cade interfered with his medical treatment plan by

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Brown’s fifth cause of action and part of his fourth cause of action were dismissed by the court on
March 29, 2013. (Docket No. 9.)

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discontinuing his medication and/or influencing Defendant Rao to discontinue his
medication because he had been hoarding or selling it. Second, Brown alleges that
Defendant Sharp refused to give him his medication on several occasions, told lies to get
his medication discontinued, and had his double mattress and TENS unit taken away from
him. In his third cause of action, Brown alleges that Defendant Rao refused to treat his
Hepatitis C and discontinued his pain medication. And in what survives of his fourth cause
of action, Brown alleges that Defendant Killinger interfered with his medical treatment plan
by telling Defendant Rao that Defendants Cade and Sharp had previously noted that he
was hoarding or selling his medication.
Defendants seek summary judgment on each of Brown’s causes of action.
A.

Summary Judgment Standard
Summary judgment is appropriate 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 law.”
Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn
from the evidence must be "viewed in the light most favorable to the party opposing the
motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609, 26
L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of
evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). The function of the court is not “to weigh the evidence and determine the truth of
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the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S.
at 249. “Assessments of credibility and choices between conflicting versions of the events
are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence
showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); D’Amico
v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be evidence from
which the jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 252.
B.

42 U.S.C. § 1983
Civil liability is imposed under 42 U.S.C. § 1983 only upon persons who, acting

under color of state law, deprive an individual of rights, privileges, or immunities secured
by the Constitution and laws. See 42 U.S.C. § 1983. On its own, § 1983 does not provide
a source of substantive rights, but rather, a method for vindicating federal rights conferred
elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490 U.S. 386,
393-94,109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 145 n.3, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979)). Accordingly, as a
threshold matter in reviewing claims brought pursuant to § 1983, it is necessary to precisely
identify the constitutional violations alleged. See Baker, 443 U.S. at 140. Here, Brown’s
claims are grounded in the Eighth Amendment.

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C.

Brown’s Claims
Brown maintains that Defendants were deliberately indifferent to his medical needs

by denying him pain medication (Ultram), refusing to treat his Hepatitis C, and interfering
with his prescribed medical treatment.
The Eighth Amendment, which applies to the States through the Fourteenth
Amendment, “prohibits the infliction of ‘cruel and unusual punishments’ on those convicted
of crimes.” Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271
(1991); U.S. Const. amend. VIII. As such, prison conditions and the treatment prisoners
receive while incarcerated are subject to scrutiny under the Eighth Amendment. See
DeShaney v. Winnebago County Dept. of Social Svcs., 489 U.S. 189, 199-200, 109 S.Ct.
998, 1005-1006, 103 L.Ed.2d 249 (1989).
In addition, the Supreme Court has recognized that a prisoner’s claim that he was
intentionally denied medical treatment is cognizable under the Eighth Amendment and §
1983:
We therefore conclude that deliberate indifference to serious
medical needs of prisoners constitutes the unnecessary and
wanton infliction of pain proscribed by the Eighth Amendment.
This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison
guards in intentionally denying or delaying access to medical
care or intentionally interfering with the treatment once
prescribed.
Regardless of how evidenced, deliberate
indifference to a prisoner’s serious illness or injury states a
cause of action under § 1983.
...
In order to state a cognizable claim, a prisoner must allege
acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs. It is only such
indifference that can offend evolving standards of decency in
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violation of the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 104, 106, 97 S.Ct. 285, 291, 292, 50 L.Ed.2d 25
(1976)(quotations and citations omitted).
“A claim of cruel and unusual punishment in violation of the Eighth Amendment
has two components – one subjective, focusing on the defendant's motive for his conduct,
and the other objective, focusing on the conduct's effect.” Sims v. Artuz, 230 F.3d 14, 20
(2d Cir. 2000) (citing Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 999, 117
L.Ed.2d 156 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). With respect
to a claim of deliberate indifference to a serious medical need, a prisoner must show that
he suffered from a “sufficiently serious” medical condition, see Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998), and that the defendants acted with a “sufficiently culpable
state of mind,” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
The subjective component “requires a showing that the defendant "had the
necessary level of culpability, shown by actions characterized by 'wantonness' in light of
the particular circumstances surrounding the challenged conduct.” Sims, 230 F.3d at 21
(citations omitted).

The objective component is "contextual and responsive to

contemporary standards of decency.” Id. (quoting Hudson, 503 U.S. at 8).
“An official acts with the requisite deliberate indifference when
he ‘knows of and disregards an excessive risk to inmate health
or safety; the official must be both 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.’”
Brown v. Picarelli, No. 96 Civ. 1222, 2003 WL 1906180, at *6 (S.D.N.Y. Apr. 15,
2003)(quoting Farmer, 511 U.S. at 837).
Boiled to its essence, at issue here is Brown’s unhappiness about having his Ultram
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prescription discontinued. It is undisputed, however, that Brown was caught secreting
Ultram pills—whether his or someone else’s is immaterial—on December 8, 2008. That
information was relayed to Defendant Rao, who quite reasonably discontinued Ultram, both
for institutional security concerns and because it was contraindicated for Brown’s liver
condition. The relaying of this information to Defendant Rao by the other defendants is
also quite reasonable since Defendant Rao, as Brown’s physician, must be aware of all
information relevant to Brown’s treatment. More to the point, there is no evidence
suggesting that Defendants Cade, Sharp, and Killinger relayed this information to
Defendant Rao specifically to interfere with Brown’s medical treatment, to the exclusion of
other legitimate reasons.
It is further undisputed that Brown engaged in behavior that Defendant Rao, through
his education, training, and experience, recognized as drug-seeking behavior: refusing
other pain medicine and treatment; refusing crushed Ultram; claiming side effects that were
not medically indicated; insisting on Ultram in pill form. In addition, evidence in the record
demonstrates that Brown was offered and received other forms of treatment for his pain,
including other pain medications, Ultram in crushed form, physical therapy, a TENS unit,
back brace, and double mattress. Based on these undisputed facts, which establish
legitimate reasons for Defendants’ refusal to provide Brown with Ultram in pill form, Brown
is unable to establish that Defendants acted with wantonness or an otherwise sufficiently
culpable state of mind in treating his pain. His claim therefore fails.
The same holds true for Defendant Rao’s treatment of Brown’s Hepatitis C.
Although Brown insists that Defendant Rao failed to treat him, he has come forth with no
evidence that his Hepatitis C required treatment.
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Rather, the undisputed record

demonstrates that Defendant Rao assessed Brown’s condition, ordered medical tests, and
determined, in his professional judgment, that Brown was not a candidate for treatment.
Moreover, Defendant Rao and other medical staff continued to monitor Brown’s Hepatitis
C and re-evaluate his candidacy for treatment. That treatment was not medically indicated
does not equate to deliberate indifference to a serious medical need. Brown’s claim
therefore fails.
Further, although it is clear from the record that Brown wanted Ultram in pill form to
treat his pain and wanted some sort of treatment for his Hepatitis C, treatment decisions
are not Brown’s to make, and his disagreement with his treatment regiment is insufficient
to state a constitutional claim. See Chance, 143 F.3d at 703 (“It is well-established that
mere disagreement over the proper treatment does not create a constitutional claim. So
long as the treatment given is adequate, the fact that the prisoner might prefer a different
treatment does not give rise to an Eighth Amendment violation.”) Consequently, because
Brown’s disagreement with Defendants’ treatment of his Hepatitis C and pain does not
support an Eighth Amendment claim, Defendants are entitled to summary judgment.
Finally, Defendants vigorously dispute Brown’s claims that he was denied
medication and his TENS unit and double mattress were taken from him on certain
occasions, but even if true, these allegations do not support a claim under the Eighth
Amendment, because such de minimis deprivations are not objectively sufficiently serious
to state a claim under the Eighth Amendment, particularly in light of the undisputed
evidence that Brown walked out of treatment and refused to accept medication several
times. Thus, these claims also fail.

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IV. CONCLUSION
Brown has failed to establish the existence of any disputed issues of material fact
as it relates to Defendants’ subjective intent in the treatment of his medical conditions,
which is fatal to each of his Eighth Amendment claims. Defendants’ motion for summary
judgment will therefore be granted in its entirety.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment (Docket
No. 34) is GRANTED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:

October 16, 2016
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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