Mitchell v. Braselmann et al

Filing 42

DECISION AND ORDER DENYING Plaintiff's 30 Motion for Summary Judgment; DENYING Defendants' 37 Cross-Motion for Summary Judgment; DISMISSING the Complaint; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 1/31/2015. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL MITCHELL,
Plaintiff,
v.

DECISION AND ORDER
13-CV-150S

PETER BRASELMANN, et al.,
Defendants.

I. INTRODUCTION
Plaintiff Michael Mitchell, proceeding pro se and in forma pauperis, commenced this
action pursuant to 42 U.S.C. § 1983, alleging that while he was incarcerated, Defendants
denied him appropriate medical treatment in violation of the Eighth Amendment. Pending
before this Court are Plaintiff’s motion for partial summary judgment and Defendants’
motion for summary judgment dismissing the Complaint. This Court finds the matter fully
briefed and oral argument unnecessary. For the reasons discussed below, Plaintiff’s
motion is denied, and Defendants’ motion is granted.

II. BACKGROUND
Plaintiff commenced this action in February 2013 against Defendant Peter
Braselmann, M.D., and several unidentified Jane and John Doe nurses. Two nurses,
Joanne Seeley and Candice Rae Baker,1 were subsequently identified as being scheduled

1

Baker’s last name is misstated as “Bauer” at several points in the record.

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for duty during the relevant time period. (Docket Nos. 6, 9.) At all times relevant to his
complaint, Plaintiff was an inmate under the care of the Health Services Department of the
New York State Department of Corrections and Community Services (“DOCCS”). (Defs’
Statement of Undisputed Facts (“Defs’ Stmt”) ¶ 15, Docket No. 37-1.) Although
incarcerated at Southport Correctional Facility, Plaintiff’s claims arise from his alleged
mistreatment while assigned to the Elmira Correctional Facility’s Mental Health Unit.
(Complaint, Docket No. 1, at 1-2; Defs’ Stmt ¶¶ 2, 15.) He was transferred there from
Southport in March 2012 after he reported suicidal thoughts resulting from sexual abuse
by a correctional officer. (Pl’s Statement of Undisputed Facts (“Pl’s Stmt”) ¶¶ 1-5, Docket
No. 30.) While there, Plaintiff purposefully struck his head against the cell bars in a
purported suicide attempt, at which time he was seen by Defendant Braselmann. (Pl’s Stmt
¶¶ 6-7; Defs’ Stmt ¶ 20.) Dr. Braselmann shortly transferred Plaintiff to an outside
emergency room, Arnot Ogden Medical Center (“AOMC”), for further treatment. (Pl’s Stmt
¶ 11; Defs’ Stmt ¶ 19.) There, Plaintiff received a CT scan of his head and cervical spine,
which indicated no evidence of a fracture. (Pl’s Stmt ¶ 13; Defs’ Stmt ¶¶ 21-22.)
Defendant Candice Rae Baker saw Plaintiff upon his return from AOMC, and states
that he reported no complaints at that time. (Baker Decl ¶¶ 8-11, Docket No. 37-3.) Dr.
Braselmann reviewed the medical records and cleared Plaintiff to return to the Mental
Health Unit. (Braselmann Decl ¶ 16, Docket No. 37-4.) Plaintiff’s AOMC general discharge
instructions state that Plaintiff may need acetaminophen or ibuprofen, and that Plaintiff
may have a “mild headache” for a few days. (Braselmann Ex A, Docket No. 37-4 at 15.)
Plaintiff asserts that he repeatedly requested pain medication following his return to the
Mental Health Unit, but no medication was ordered or given to him over the course of nine
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days. (Pl’s Stmt ¶¶ 21-24; Pl’s Mem of Law at 5-6, Docket No. 31.) Plaintiff purposely cut
his arm out of frustration with Defendants’ failure to treat his continued severe pain. (Pl’s
Stmt ¶ 25.) Plaintiff alleges that when Defendant Seeley saw Plaintiff’s self-inflicted
wounds, she said he would “be fine,” and walked away without treating Plaintiff. (Pl’s Stmt
¶¶ 26-27.) Following Plaintiff’s completion of the grievance process, this action ensued.

III. DISCUSSION
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A court’s function on a
summary judgment motion “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609
F.3d at 545. “A dispute regarding a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’ ” Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248), cert denied, 540
U.S. 811 (2003). A court must also “construe the facts in the light most favorable to the
non-moving party and must resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). Where, as here, both parties move for summary judgment, “each party's motion
must be examined on its own merits, and in each case all reasonable inferences must be
drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t,
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249 F.3d 115, 121 (2d Cir. 2001).
Further, “[i]t is well established that the submissions of a pro se litigant2 must be
construed liberally and interpreted ‘to raise the strongest arguments that they suggest.’ ”
Triestman v. Federal Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)(emphasis in
original) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). “A pro se plaintiff,
however, cannot defeat a motion for summary judgment by simply relying on the
allegations of his complaint; he must present admissible evidence from which a reasonable
jury could find in his favor.” Belpasso v. Port Auth. of New York & New Jersey, 400 F. App’x
600, 601 (2d Cir. 2010); see Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (summary
judgment properly entered against pro se plaintiff who failed to oppose motion with
admissible evidence after receiving plainly worded warning of the consequences of such
failure). “The mere existence of a scintilla of evidence in support of the plaintiff's position
will be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252.
Plaintiff seeks partial summary judgment with respect to the liability of only
Defendants Braselmann and Seeley without reference to or reservation of any claim
against Defendant Baker. (Pl’s Notice of Motion ¶ 2, Docket No. 2.) In his Complaint,
Plaintiff seeks damages for Defendants’ alleged violations of his constitutional rights
pursuant to 42 U.S.C. § 1983. This section imposes civil liability 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. Section 1983 does not itself provide

2

In accordance with Local Rule of Civil Procedure 56(b), Defendants filed and served a notice
advising Plaintiff of the requirements in opposing a summary judgment motion. (Docket No. 37 at 2.)

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a source of substantive rights, but instead provides the mechanism by which a plaintiff may
seek vindication of federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386,
393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
Defendants oppose Plaintiff’s motion and seek summary judgment dismissing the
Complaint in its entirety. Initially, as Defendants argue, to the extent that Plaintiff seeks
damages from Defendants in their official capacities, such claims must be dismissed as
barred by the Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45(1989) (a state is not a ‘person’ within the
meaning of § 1983, and a suit against a state agent acting in his or her official capacity is
a suit against the state). Further, the claims against the still unidentified John and Jane
Doe defendants must be dismissed because, having never been served with the
Complaint, they did not become parties to this action. See Fed. R. Civ. P. 4(m); Jackson
v. Bederman, No. 12 Civ. 1338(KPF), 2014 WL 2805242, *12 (S.D.N.Y. June 20, 2014).
Plaintiff’s remaining claims are grounded in the Eighth Amendment. A “deliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,
104, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976) (internal quotation marks and citation omitted).
In order to establish a violation of a prisoner’s rights under this theory, a plaintiff must
establish two conditions: (1) that his or her medical condition was objectively a serious one;
and (2) that each defendant alleged to have violated the prisoner’s rights acted with
deliberate indifference to that medical need. Brock v. Wright, 315 F.3d 158, 162 (2d Cir.
2003) (citing Estelle, 429 U.S. at 104).
Plaintiff asserts that he meets the objective prong because, as recognized by the
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Second Circuit, “ ‘the Eighth Amendment forbids not only deprivations of medical care that
produce physical torture and lingering death, but also less serious denials which cause or
perpetuate pain.’ ” Brock, 315 F.3d at 163 (quoting Todaro v. Ward, 565 F.2d 48, 52 (2d
Cir. 1977)). He alleges that the pain he experienced for nine days after his suicide
attempt affected his daily activities, his memory, and caused insomnia. (Pl’s Mem of Law
at 4 .) Notably, Plaintiff neither argues that the self-inflicted scratches or cuts on his arm
independently constituted an objectively serious medical condition nor alleges that these
cuts became infected or otherwise had trouble healing. Cf. Smith v. Carpenter, 316 F.3d
178, 186 (2d Cir. 2003) (the failure to treat otherwise insignificant wounds can amount to
an Eighth Amendment violation if that wound develops signs of infection, thereby creating
a substantial risk of injury).
Defendants correctly contend that the objective component has not been satisfied
in this case. Initially, although the severity of pain allegedly suffered by a plaintiff is a
significant factor in determining whether an objectively serious medical condition exists,
subjective complaints of pain alone are insufficient to meet Eighth Amendment standards.
Thomas v. Nassau County Corr. Ctr., 288 F. Supp. 2d 333, 338 (E.D.N.Y.2003); see Sonds
v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 310 (S.D.N.Y. 2001)
(mild or moderate pain or discomfort insufficient to establish objectively serious medical
need); cf. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (objective conditions
satisfied by allegations of “extreme pain,” deterioration of teeth, and inability to eat
properly). Unlike Brock, where two physicians opined that the plaintiff’s condition had the
potential to cause constant pain and warranted further treatment, 315 F.3d at 161, 163,
here the alleged severity of Plaintiff’s pain allegations is undermined by his medical
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records. See Grant v. Burroughs, No. 96 Civ. 2753 (MGC), 2000 WL 1277592, *4
(S.D.N.Y. Sept. 8, 2000) (plaintiff’s allegation that he was left in pain for two months failed
to establish objective condition where his medical records undermined the conclusion that
the underlying medical condition was one that would produce extreme pain).
Further, as Defendant’s argue, (Defs’ Mem of Law at 6), contrary to Plaintiff’s
assertion that Defendants denied him medication prescribed by medical personnel at
AMOC, no prescription pain medication was ordered during his treatment there. Instead,
Plaintiff was given anti-inflammatory medication to treat the cervical neck strain.
(Braselmann Decl ¶ 14; see Pl’s Exs, Docket No. 32 at 27.) CT scans of Plaintiff’s head
and neck showed no acute intracranial hemorhage, significant mass effect, large infarct,
fracture, or subluxation. (Braselmann Decl ¶ 13, Ex A, Docket No. 37-4 at 16-17; see Pl’s
Exs, Docket No. 32 at 26-27.) No further medication was prescribed upon discharge;
instead, the preprinted instructions refer to acetaminophen or ibuprofen (Tylenol or Motrin)
due to the possibility of a “mild headache” for a few days. (Braselmann Ex A, Docket No.
37-4 at 13, 15; see Pl’s Exs, Docket No. 32 at 17, 21.) There is therefore insufficient
evidence that Plaintiff was suffering from an objectively serious medical condition.
There is also insufficient evidence that any Defendant acted with deliberate
indifference to Plaintiff’s medical needs. To the extent that Plaintiff asserts he should have
received stronger pain medication, a preference for a different treatment does not give rise
to an Eighth Amendment violation. Chance, 143 F.3d at 703; Dean v. Coughlin, 804 F.2d
207, 215 (2d Cir.1986) (essential test is one of medical necessity, not desirability); see Hill
v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (issues of medical judgment cannot be the
basis of a deliberate indifference claim). Finally, the failure to provide a mild pain-relief
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medication, such as Tylenol or Motrin, does not establish deliberate indifference where the
record reflects that Plaintiff was otherwise adequately treated for his head injury and
appropriately monitored. See Alvarez v. Liscum, 89 F. App’x 297, 297 (2d Cir. 2004) (citing
Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)). Indeed, Plaintiff does not allege
any misconduct in the treatment of, or lasting repercussions from, the underlying head
trauma itself.

IV. CONCLUSION
Defendants established their entitlement to summary judgment dismissing the
Complaint in its entirety, and Plaintiff failed to raise a triable issue of material fact in
opposition.3 The Complaint is therefore dismissed.

V. ORDERS
IT HEREBY IS ORDERED that Plaintiff’s Motion for Partial Summary Judgment
(Docket No. 30) is DENIED;
FURTHER, that Defendants’ Cross-Motion for Summary Judgment (Docket No. 37)
is GRANTED and the Complaint is dismissed;

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Although any response by Plaintiff in opposition to Defendants’ summary judgment cross-motion
was due by November 21, 2014, no response was filed. On January 29, 2015, Plaintiff filed a request for
an extension of time in which to file due to an unresolved motion to compel. (Docket No. 40 (referencing
the May 8, 2014 motion at Docket No. 26).) An order denying that motion was filed on February 3, 2015.
(Docket No. 41.) Moreover, an extension is not warranted because Plaintiff does not explain how
Defendants’ response to that motion to compel – which appears responsive to all of the document
requests (Docket Nos. 28, 29) – was insufficient such that he was precluded from adequately opposing
Defendant’s summary judgment motion.

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FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.

Dated: January 31, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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