Phelan v. Chin et al

Filing 39

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 32 Defendants' Motion for Summary Judgment and dismissing Plaintiff's complaint in its entirety as to all Defendants. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/19/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KENNETH PHELAN,
No. 6:10-CV-6344(MAT)
DECISION AND ORDER

Plaintiff,
-vsDR. CHIN,1 et al.,
Defendants.

I.

Introduction
Pro se plaintiff Kenneth Phelan (“Plaintiff”), an inmate in

the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”) filed this action pursuant to
42 U.S.C. § 1983 against Defendants, alleging that they acted with
deliberate medical indifference to his serious medical needs in
violation

of

the

Eighth

Amendment

of

the

United

States

Constitution. Plaintiff alleges that while incarcerated at Collins
Correctional Facility (“Clinton”) he was denied medication and
treatment for his migraine headaches.
Defendants have filed a motion seeking dismissal of the
complaint for failure to state a claim pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure (“F.R.C.P.”) or, in the
alternative, summary judgment pursuant to F.R.C.P. 56(c).
1

Plaintiff has filed suit against a “Dr. Chin”. Defendants state that upon
information and belief, there is no “Dr. Chin” at Collins Correctional Facility.
Defendants believe that the intended individual defendant is Kenneth Jin, M.D.
(“Dr. Jin”) who was assigned to Collins Correctional Facility during the relevant
time period. Defendants accordingly have defended this matter on behalf of Dr.
Jin.

II.

Background
The following facts—viewed in the light most favorable to

Plaintiff—are taken from the complaint and from the parties’
submissions in conjunction with Defendants’ motion. See, e.g.,
Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995) (“For the
purposes of a summary judgment motion, courts are required to view
the facts in the light most favorable to the parties opposing the
motion and to suspend judgments on credibility.”).
Dr. Jin was employed as a doctor by DOCCS and assigned to
Collins during the time when Plaintiff was an inmate there (October
2009,

through

February

2010).

Upon

his

transfer

to

Collins,

Plaintiff’s medical records indicated that he has been prescribed
Imitrex2 for migraine headaches.
Plaintiff arrived at Collins on October 1, 2009, with a 30-day
supply of Imitrex, an anti-migraine medication. Declaration of
Kenneth Jin, M.D. (“Jin Decl.”), ¶ 8. Plaintiff used up his 30-day
supply in 12 days and, on October 13, 2009, requested more Imitrex.
Id., ¶ 9. Plaintiff was counseled by medical staff as to proper use
of the medication and given a new 30-day supply, which was intended
to last until November 12, 2009. Id., ¶¶ 10-11.
On November 1, Plaintiff again requested a refill of Imitrex,
stating

he

had

used

up

his

entire

30-day

supply.

Id.,

¶11.

2

“Imitrex is medically classified as a selective serotonin receptor agonist
and presents the possibility of several serious side effects including
nausea/vomiting, dizziness and muscle cramping.” Jin Decl., ¶ 7.

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Plaintiff was placed on Ibuprofen until November 12, 2009, at which
time he was given a 30-day refill of Imitrex, with the proviso that
the Imitrex was to be dispensed only by Collins’ nursing staff upon
Plaintiff’s request. Id., ¶¶ 12-13.
On November 18, 2009, Dr. Jin examined Plaintiff at Collins
and determined the likely cause of his headaches was a sinus
condition, not migraines. Id., ¶ 14. Dr. Jin prescribed Motrin and
Nasacort.
Plaintiff again used up his entire 30-day supply of Imitrex in
under three weeks. On December 1, 2009, he requested additional
Imitrex. Id., ¶ 15.
On December 7, 2009, Plaintiff was issued a misbehavior ticket
for violating numerous facility rules, all of which involved the
hoarding

of

Declaration

food,
of

clothing,

Hillel

and

Deutsch,

medication.
Esq.

See

generally

(“Deutsch

Decl.”).

Specifically, Plaintiff was found to have in his cell “1 messhall
spoon, 3 juice containers, 1 salad container, 3 chip bags, 12 salt
packets, 1 ketchup packet, 6 sugar packets, 1 milk container,
5 butter cups, 1 extra comb, 2 extra bars of soap, 3 extra [rolls
of] toilet paper, 1 extra sheet, 1 extra green towel, 1 piece of
torn state towel, 1 fishing pole made from newspaper and green
thread, 1 fish line made of green thread, 2 extra undershorts, 3
extra state socks, 3 extra state t-shirts, 2 pages torn from a
state library magazine, 1 ibuprofen packet, 12 [pills] of unknown

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medicine, possibly Tylenol, 5 antidiarrheal packets and 15 medicine
D packets.” Deutsch Decl., Exhibit (“Ex.”) A.
From December 8, 2009, through December 15, 2009, Plaintiff
had no access to Imitrex. During that time, his medical records
indicate that he did not complain of headaches. See Jin Decl., ¶ 17
& Ex. A. On January 4, 2010, despite admitting he had no headache,
Plaintiff nevertheless requested Imitrex. Id., ¶ 18 & Ex. A.
Based upon his examination of Plaintiff, Plaintiff's lack of
headaches when Imitrex was discontinued, and Plaintiff’s tendency
to hoard medication, Dr. Jin concluded Plaintiff did not medically
need Imitrex. Accordingly, he took Plaintiff off Imitrex and
continued him on Nasacort and Motrin to address the sinus condition
he believed was causing Plaintiff’s headaches. Id., ¶¶ 19-20.
Plaintiff, like all other inmates, are permitted to schedule
appointments with Dr. Jin, who saw and examined Plaintiff on the
only date when he was scheduled for an
appointment, November 18, 2009. Plaintiff was seen by staff nurses
nearly every day of his incarceration at Collins, and the nurses
kept Dr. Jin apprised as to Plaintiff’s condition. Id., ¶¶ 21-22.
All of Plaintiff’s causes of action against the various
Defendants, including those in supervisory positions, stem from Dr.
Jin’s refusal to continue to provide Imitrex to Plaintiff.

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III. General Legal Principles
A.

42 U.S.C. § 1983

In order to state a claim under 42 U.S.C.
plaintiff

must

establish

the

following

elements:

§ 1983, the
(1)

conduct

attributable at least in part to a person acting under color of
state law; and (2) deprivation, as the result of the challenged
conduct,

of

a

right,

privilege,

or

immunity

secured

by

the

Constitution or laws of the United States. Dwares v. City of
New York, 985 F.2d 94, 98 (2d Cir. 1993). Section 1983 “is not
itself a source of substantive rights,” but merely provides “a
method for vindicating federal rights elsewhere conferred.” Graham
v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan,
443 U.S. 137, 144, n. 3 (1979)).
B.

Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged.” Id. “Th[is] plausibility standard is not akin

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to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
C.

Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that
there exists “no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c); see generally, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary judgment
motion may properly be made in reliance solely on the ‘pleadings,
depositions, answers to interrogatories, and admissions on file.’”
Celotex Corp., 477 U.S. at 324.
In order to establish a material issue of fact, the nonmovant
need only provide “sufficient evidence supporting the claimed
factual dispute” such that a “jury or judge [is required] to
resolve the parties’ differing versions of the truth at trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)
(quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S.
253, 288–89 (1968)). Thus, the “purpose of summary judgment is to
‘pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.’” Matsushita, 475 U .S.
at 587 (quoting FED. R. CIV. P. 56(e) advisory committee’s note on
1963 amendments).

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D.

Construction of Pro Se Pleadings

Because Plaintiff’s complaint alleges civil rights violations,
and he is proceeding pro se, the Court “construe his complaint with
particular generosity.” Morales v. Mackalm, 278 F.3d 126, 131
(2d Cir. 2002) (per curiam) (citing Vital v. Interfaith Med. Ctr.,
168 F.3d 615, 619 (2d Cir. 1999)), abrogated on other grounds,
Porter v. Nussle, 534 U.S. 516 (2002). Nevertheless, even pro se
complaints “relying on the civil rights statutes are insufficient
unless they contain some specific allegations of fact indicating a
deprivation of rights, instead of a litany of general conclusions
that shock but have no meaning.” Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987).
IV.

Analysis of Defendants’ Motion to Dismiss and Motion for
Summary Judgment
A.

Claims Against Defendants in Their Official Capacities

As

Defendants

argue,

Plaintiff’s

allegations

against

Defendants in their official capacities must be dismissed. See
Davis v. New York, 316 F.3d 93, 102-03 (2d Cir. 2003) (“[T]he
dismissal of Davis’s claims against the State of New York, the
Department, and Attica, and Davis’s claims for damages against all
of the individual defendants in their official capacities is
affirmed,

because

these

claims

are

barred

by

the

Eleventh

Amendment.”) (citing Kentucky v. Graham, 473 U.S. 159, 169 (1985);
other citations omitted)).

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B.

Eighth Amendment: Deliberate Medical Indifference by Dr.
Jin, Nurse Goldteck, and Nurse Manning

The Eighth Amendment protects incarcerated individuals from
being subjected to cruel and unusual punishment, including prison
officials’ deliberate indifference to their serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To make out a
deliberate medical indifference claim, an inmate must establish an
objective as well as a subjective component. First, he must show
that, objectively, he suffered from a “serious medical need,” i.e.,
“‘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 v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994)). Second, he must show that the defendant subjectively knew
of, and disregarded, that serious need, Johnson v. Wright, 412 F.3d
398, 403 (2d Cir. 2005), and that in doing so, the defendant had a
culpable state of mind and intended wantonly to inflict suffering.
Wilson v. Seiter, 501 U.S. 294, 299 (1991).
The Court assumes arguendo that Plaintiff’s migraines were a
sufficiently
objective

serious

prong

of

medical
a

condition

deliberate

for

indifference

purposes
claim.

of

the

However,

Plaintiff cannot establish the subjective component of his Eighth
Amendment claim–i.e., that Dr. Jin acted with a sufficiently
culpable

state

of

mind,

one

that

is

“more

blameworthy

than

negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). The
Supreme

Court

has

described

“deliberate
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indifference”

as

the

“equivalent [of] criminal negligence.” Id. at 835. Thus, “medical
malpractice is . . . insufficient to support an Eighth Amendment”
deliberate indifference claim. Hernandez v. Keane, 341 F.3d 137,
144 (2d Cir. 2003).
Here, the crux of Plaintiff’s claim is that Dr. Jin improperly
discontinued

his

Imitrex

without

consulting

him.

Although

Plaintiff’s medical indifference claim is primarily directed at
Dr. Jin, he asserts in his opposition to Defendants’ summary
judgment motion that Nurse Goldteck refused to give him Imitrex on
October 30-31, 2009, for a migraine; and that Nurse Manning refused
to

give

him

Imitrex

on

December

7,

2009,

for

a

migraine.

Plaintiff’s Declaration, ¶¶ 5, 7.
“It is well established that a difference of opinion between
a prisoner and prison officials regarding medical treatment does
not, as a matter of law, constitute deliberate indifference.”
Joyner v. Greiner, 195 F. Supp.2d 500, 504 (S.D.N.Y. 2002) (citing
Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d
303, 309 (S.D.N.Y. 2001) (citing Chance, 143 F.3d at 703)); see
also Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Here,
Plaintiff’s medical and disciplinary records demonstrate that he
had a tendency to hoard medication and, despite repeated counseling
by Dr. Jin and Clinton medical staff, would not take his medication
in appropriate doses. In Dr. Jin’s professional opinion, based on
his examination of Plaintiff and Plaintiff’s tendency to hoard

-9-

medication,

Plaintiff

did

not

suffer

from

migraines

and,

accordingly, did not require a prescription for Imitrex. Dr. Jin’s
diagnosis was supported by the following factors: (1) while he was
not taking Imitrex for a week in December 2009, Plaintiff did not
complain of headaches; and (2) on January 4, 2010, Plaintiff
admitted to Clinton medical personnel that he did not have a
migraine but nevertheless requested Imitrex.
Plaintiff attempts to raise an issue of fact by asserting in
his opposition papers that when he was transferred to Southport on
January 22, 2010, he was “immediately” placed back on Imitrex
because the medical personnel there diagnosed him with migraines.
Plaintiff’s Declaration, ¶ 15 (citing Exhibit E-10). Plaintiff’s
Exhibit E-10 is an Ambulatory Health Record dated January 22, 2010,
completed by D. Weed, R.N. Under “Chronic Medical Problems”, it
simply indicates “HA - Migraines”, i.e., that Plaintiff selfreported a history of migraines. This record does not indicate that
he was diagnosed with migraines.
In any event, even assuming that Plaintiff was diagnosed with
migraines

at

Southport

and

placed

on

Imitrex,

this

at

most

represents “mere disagreement among professionals [which] does
not[,] in and of itself[,] constitute and establish the existence
of a medical indifference claim.” Williams v. Bailey, 2010 WL
3881024,
Coughlin,

at
10

*8
F.

(N.D.N.Y.
Supp.2d

Sept.
261,

3,
264

-10-

2010)

(citing

(W.D.N.Y.

1998)

Rosales

v.

(citation

omitted); Amaker v. Kelly, No. 9:01–CV–877, 2009 WL 385413, at
*14–16 (N.D.N.Y. Feb. 9, 2009)). While Plaintiff makes conclusory
allegations regarding the seriousness of his medical needs and the
lack of adequate care given to him by prison medical personnel and
prison officials, there is nothing in the complaint or the record
upon which a reasonable juror could infer that Dr. Jin or the
facility nurses possessed the subjective reckless state of mind
needed

to

permit

a

successful

Eighth

Amendment

deliberate

indifference claim. Moreover, there is no basis in the record upon
which a reasonable juror could infer that Dr. Jin or the facility
nurses were aware of any serious risks to which they allegedly
subjected him.
Even

dsregarding

all

of

Dr.

Jin’s

reasonable

bases

for

withholding Imitrex, not the least of which was the desire to avoid
an overdose or adverse side-effects, Plaintiff, at best, has
alleged a medical malpractice claim. The law is clear that medical
malpractice is not actionable under the Eighth Amendment. E.g.,
Hathaway v. Coughlin, 99 F.3d at 553. Accordingly, Plaintiff’s
claim against Dr. Jin and the facility nurses are dismissed as a
matter of law.
C.

Claims Against Karen Bellamy, Eileen Dinisio, Nurse
Goldteck, Nurse Manning, Inspector General Richard Roy,
and Dr. Lester Wright

It is well-settled that for liability to exist under 42 U.S.C.
§ 1983, a defendant must be “personally involved” in the underlying

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conduct or events, meaning that he or she “subjects, or causes [the
plaintiff] to be subjected” to an alleged constitutional violation.
42 U.S.C. § 1983; see also Provost v. City of Newburgh, 262 F.3d
146, 154 (2d Cir. 2001). Personal liability cannot be imposed on a
state official under a theory of respondeat superior. Monell v.
New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); see
also Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003).
Defendants argue that Assistant Commissioner Karen Bellamy
(“Ass’t Comm’r Bellamy”), Eileen Dinisio (“Dinisio”), Inspector
General
(“Dr.

Richard

Wright”)

Roy
lack

(“I.G.

Roy”),

sufficient

and

Dr.

personal

Lester

involvement

Wright
in

the

constitutional violations alleged by Plaintiff.
Plaintiff’s sole allegation against Dr. Wright is that, upon
being informed of Plaintiff’s complaint about Dr. Jin, he conducted
an

investigation

and

determined

that

Dr.

Jin

had

rendered

satisfactory medical care. With regard to Dinisio, Plaintiff’s only
allegation
Dr.

against

Wright’s

behest

her

is

that

informing

she

authored

Plaintiff

of

a

letter

Dr.

at

Wright’s

investigative findings. As to Inspector General Roy, Plaintiff
alleges that he wrote to the Inspector General’s office and Roy
declined to pursue an investigation. Plaintiff explicitly alleges
that

Roy

did

not

have

any

personal

involvement

in

any

constitutional deprivation. There is no constitutional right to an
investigation by government officials. Stone v. Department of

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Investigation, No. 91 Civ. 2471 (MBM), 1992 WL 25202, at *2
(S.D.N.Y. Feb. 4, 1992) (citing, inter alia, Gomez v. Whitney, 757
F.2d 1005, 1006 (9th Cir. 1985)); accord Lewis v. Gallivan, 315 F.
Supp.2d

313,

317

(W.D.N.Y.

2004).

Furthermore,

there

is

“no

instance where the courts have recognized inadequate investigation
as sufficient to state a civil rights claim unless there was
another recognized constitutional right involved.” Gomez, 757 F.2d
at 1005.

Plaintiff’s claims against Dr. Wright, Dinisio, and

Inspector General Roy based upon their inadequate investigation or
refusal to investigate fail to state a colorable constitutional
claim. See Renelique v. Duncan, No. 9:03CV1256, 2007 WL 1110913, at
*14 (N.D.N.Y. Apr. 12, 2007) (dismissing inmate’s claim that
Inspector General Roy failed to investigate an alleged assault upon
receipt of inmate’s letter complaint; finding the “allegations fail
to

state

a

cause

of

action

because

[the

inmate]

has

no

constitutional right to an investigation, and he has failed to
establish the personal involvement of the Inspector General”).
As to Ass’t Comm’r Bellamy, Plaintiff alleges only that she
denied

his

grievance.

administrative
high-level

denial

official

“It
of

is

a

is

clear

prison

that

inmate’s

insufficient

to

affirming
grievance

establish

the
by

a

personal

involvement under section 1983[,]’ particularly if the grievance
involves medical care, and the reviewer has no medical training.”
Hanrahan v.

Menon,

No.

9:07–CV–610,

-13-

2010

WL

6427650,

at

*12

(N.D.N.Y. Dec. 15, 2010) (quoting Manley v. Mazzuca, 01CV5178, 2007
WL 162476, at *10 (S.D.N.Y. Jan. 19, 2007) (citation omitted);
footnote omitted; brackets in original). The fact that Ass’t Comm’r
Bellamy affirmed the denial of Plaintiff’s grievance concerning his
medical care is insufficient to establish her personal involvement
in any alleged constitutional violation. E.g., Foreman v. Goord, 02
Civ. 7089, 2004 WL 1886928, at *7 (S.D.N.Y. Aug. 23, 2004)).
V.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss or,

in the alternative, for summary judgment (Dkt #32) is granted, and
Plaintiff’s complaint is dismissed in its entirety as to all
Defendants. The Clerk of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

August 19, 2013
Rochester, New York

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