Vernon v. Marinello et al

Filing 101

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TYRIK VERNON,
Plaintiff,

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v.
MATTHEW HYDE, et al.,
Defendants.

1:13-cv-0936
Hon. John E. Jones III

MEMORANDUM
July 27, 2016
Plaintiff, Tyrik Vernon (“Vernon” or “Plaintiff”), an inmate who, at all times
relevant, was incarcerated at the State Correctional Institution at Coal Township
(“SCI-Coal Township”), Pennsylvania, commenced this civil rights action pursuant
to 42 U.S.C. § 1983, on April 12, 2013. The action is proceeding via an amended
complaint (Doc. 63) against Defendants Diamond Drugs, Inc. (“Diamond Drugs”),
Kelly Mirolli (“Mirolli”), Matthew Hyde (“Hyde”) and Chad Yordy (“Yordy”).
Presently pending is a motion (Doc. 83) to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) filed on behalf of Diamond Drugs. Also pending is a
motion for summary judgment pursuant to Federal Rule of Civil Procedure Rule 56
filed on behalf of Defendants Mirolli, Hyde and Yordy. For the reasons set forth
below, the motions will be granted.

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I.

MOTION TO DISMISS
A.

Standard of Review

In rendering a decision on a motion to dismiss, a court should not inquire
“whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must accept as
true the factual allegations in the complaint and draw all reasonable inferences
from them in the light most favorable to the plaintiff. Innis v. Wilson, 334 F.
App’x 454, 456 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d
224, 229 (3d Cir. 2008)). A district court ruling on a motion to dismiss generally
“relies on the complaint, attached exhibits, and matters of public record.” Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (stating “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”). “First, the
factual and legal elements of a claim should be separated.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Second, the court must then
determine whether the complaint states a plausible claim for relief, which is “a
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context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 211 (citing Iqbal, 556 U.S. at 679); see also
28 U.S.C. § 1915A(b) (directing the court to identify cognizable claims and to
dismiss any portion of the complaint that fails to state a claim). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679; Fed. R. Civ. P. 8(a)(2).
B.

Allegations Against Diamond Drugs

Vernon alleges that on February 19, 2013, while incarcerated at SCI-Coal
Township, Defendant Mirolli replaced his empty “Q-Var” inhaler with an
“Alvesco Ciclesonide” inhaler. (Doc. 63, ¶¶ 4-6). When he informed Mirolli that
he did not have a prescription for Alvesco Ciclesonide, Mirolli allegedly responded
“we don’t have any more Q-Var inhalers, so this is what we are giving everybody
as a replacement.” (Id. at 6). He states that on February 24, 2013, the replacement
inhaler caused him to suffer severe chest pains, a migraine headache, pain on the
left side of his body, and a swollen right hand. (Id. at 7). After using the inhaler
again on February 28, 2013, he suffered the same side effects. (Id. at 11, 16, 17).
He alleges that during the relevant time period, Diamond Drugs was the
pharmacy provider at SCI Coal Township that was responsible for switching all Q3

Var inhalers statewide. (Id. at 21). It is his contention that Diamond Drugs
replaced the Q-Var inhalers with Alvesco Ciclesonide inhalers without providing
notice and “with clear disregard of how the new brand would affect the health of
Plaintiff and all similarly situated users.” (Id. at 22, 30). He specifically claims
that Diamond Drugs “violated the due process and equal protection clauses of the
Fourteenth Amendment to the United States Constitution when [it] implemented a
statewide policy to alter Plaintiff’s and all similarly situated prisoner’s medication
without a notice and in a manner contrary to law, 49 Pa.C.S. Section 18.158(b)(3),
with clear disregard for Plaintiff’s and all similarly situated prisoners’ health, and
contributing to the physical injury of the Plaintiff constituting a tort under state
law.” (Id. at 38).
C.

Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. §
1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress. . . .
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Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a
plaintiff must allege “the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Whether a private party qualifies as a state actor is determined under one of three
interrelated theories of government action: (i) the “public function” test, (ii) the
“close nexus” test, and (iii) the “symbiotic relationship” test. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 939 (1982); Brown v. Philip Morris Inc., 250
F.3d 789, 801 (3d Cir. 2001). “Regardless of what test is ultimately applied, the
object of the inquiry is to determine whether a private entity has exercised powers
traditionally reserved exclusively to the government.” Brown, 250 F.3d at 802. A
finding of state action under any one of these tests is sufficient to deny a motion to
dismiss. Id. at 801.
Under the first test, a party engages in a public function when “the
government is effectively using the private entity in question to avoid
a constitutional obligation or to engage in activities reserved to the
government.” Id. at 801–802. This test is a rigorous inquiry and
requires that the “traditionally public function must be the ‘exclusive
prerogative of the [government].’ ” Id. at 802 (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004–5, 102 S.Ct. 2777, 73 L.Ed.2d 534
(1982)). Under the second test, a close nexus exists when the
government “has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice must
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in law be deemed to be that of the [government].” Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130
(1999) (quoting Blum, 457 U.S. at 1004, 102 S.Ct. 2777). Finally, the
symbiotic relationship test “asks whether the government has
‘insinuated itself into a position of interdependence’ with the
defendant.” Brown, 250 F.3d at 803 (quoting Burton v. Wilmington
Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961));
see also James v. City of Wilkes–Barre, No. 3:10–cv–1534, 2011 WL
3584775, at *9 (M.D.Pa. Aug. 15, 2011).
Davis v. Holder, 994 F. Supp. 2d 719, 725 (W.D. Pa. 2014).
As stated supra, Vernon alleges that Diamond Drugs violated the due
process and equal protection clauses when it implemented a statewide policy to
alter his, and all similarly situated prisoners’, medication without a notice and in a
manner contrary to law. (Doc. 63, ¶ 38). He contends that Diamond Drugs “acted
as a state actor by virtue of contractual agreement while providing medical services
to the Commonwealth of Pennsylvania.” (Doc. 94, p. 3). He suggests that
“through discovery, [he] may well be able to present facts of interdependence
between Diamond Drugs.” (Id. at 5).
Construing the allegations against Diamond Drugs in a light most favorable
to Vernon, the amended complaint fails to allege circumstances sufficient to
characterize Diamond Drugs, a private entity, as a state actor. The simple act of a
private entity implementing a new statewide policy addressing distribution of a
product is not an indication that it has exercised powers traditionally reserved
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exclusively to the government, as required by each of the above tests. Brown, 250
F.3d at 802. To the extent that he relies on the contractual agreement between
Diamond Drugs and the state to provide pharmaceutical drugs to state inmates, “a
state contractor and its employees are not state actors simply because they are
carrying out a state sponsored program and the contractor is being compensated
therefor by the state.” Black v. Indiana Sch. Dist. 985 F.2d 707, 710 (3d Cir.
1993). “For the nature of the contractor’s activity to make a difference, the
function performed must have been ‘traditionally the exclusive prerogative of the
State.’” Rendell–Baker v. Kohn, 457 U.S. 830, 842 (1982) (quoting Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 353 (1974).
“[W]hile many functions have been traditionally performed by
governments, very few have been ‘exclusively reserved to the state.’ ”
Roberst [sic] S., 256 F.3d at 165–66 (quoting Flagg Brothers Inc. v.
Lefkowitz, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)).
Accordingly, courts have increasingly recognized the rigorous
standard of this test and have rarely found that it is met. Mark, 51 F.3d
at 1142. In Rendell–Baker v. Kohn, the court held that state funding
for a private school for troubled high school students did not serve the
exclusive prerogative of the state. 457 U.S. 830, 842, 102 S.Ct. 2764,
73 L.Ed.2d 418 (1982); see also Black v. Indiana Area Sch. Dist., 985
F.2d 707, 710–11 (3d Cir.1993) (state funding of a private contractor
providing state school bus program was not performing the exclusive
prerogative of the state); Jackson, 419 U.S. at 353 (the furnishing of
utility services is not an exclusive prerogative of the state). Rare
examples of traditional public functions include holding elections and
exercising eminent domain. See Ellison v. Garbarino, 48 F.3d 192,
195 (6th Cir.1995).
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Graham v. City of Philadelphia, 2002 WL 1608230, at *6 (E.D. Pa. July 17, 2002)
The complaint is devoid of allegations that Diamond Drugs performs a
function that is the exclusively reserved for the states or that it acts “in such a way
as to create an integrated alliance with the government and [whose] conduct
therefore is imbued with the power and prestige of government officials.” Gulati
v. Zuckerman, 723 F. Supp. 353, 357 (E.D.Pa. 1989) (quoting Reuber v. United
States, 750 F.2d 1039, 1057 (D.C.Cir. 1984)). Because Diamond Drugs cannot be
deemed a state actor, the complaint fails to state a plausible claim for relief.
The Court recognizes that the sufficiency of this pro se pleading must be
construed liberally in favor of Vernon, even after Iqbal. See Erickson v. Pardus,
551 U.S. 89 (2007). The federal rules allow for liberal amendments in light of the
“principle that the purpose of pleading is to facilitate a proper decision on the
merits.” Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal
quotations omitted). Consequently, a complaint should not be dismissed with
prejudice for failure to state a claim without granting leave to amend, “unless such
an amendment would be inequitable or futile.” Phillips, 515 F.3d at 245 (citing
Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). The legal and factual
deficiencies in Vernon’s amended complaint render the pleading against Diamon
Drugs incurable. Therefore, affording him leave to amend would be futile.
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II.

MOTION FOR SUMMARY JUDGMENT
A.

Standard of Review

Summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340
(3d Cir. 1990). “[T]his standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).
A disputed fact is “material” if proof of its existence or nonexistence would affect
the outcome of the case under applicable substantive law. Id.; Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is
“genuine” if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United
Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d
Cir. 1991).

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The party moving for summary judgment bears the burden of showing the
absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d
Cir. 1996). Once such a showing has been made, the non-moving party must go
beyond the pleadings with affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give rise to a genuine
issue. FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material
facts”); Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party
opposing the motion must produce evidence to show the existence of every
element essential to its case, which it bears the burden of proving at trial, because
“a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex. at 323; see
also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he non-moving
party ‘may not rely merely on allegations or denials in its own pleadings; rather, its
response must . . . set out specific facts showing a genuine issue for trial.’” Picozzi
v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011) (quoting FED. R. CIV. P.
56(e)(2)). “Inferences should be drawn in the light most favorable to the non10

moving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v.
BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
B.

Statement of Material Facts

Vernon’s medical records indicate that on January 19, 2013, prior to
switching inhalers, he was evaluated by Registered Nurse (“RN”) Vanessa
Schooley at SCI-Coal Township for complaints of “chest pain/pressure” that had
been occurring “off and on x 1-2 wks.” (Doc. 80, ¶ 10; Doc. 81-1, p. 2). He was
encouraged to sign up for sick call, but did not do so. (Id.) Vernon disputes that
he was seen by Schooley and that he was “encouraged” to sign up for sick call.
(Doc. 92, ¶ 10).
He was evaluated the following day by RN Lori Alleman for complaints of
chest pain. (Doc. 80, ¶ 11). Vernon indicated the pain existed for one to two
weeks. (Doc. 81-2, p. 2). He was advised to sign up for sick call, but refused.
(Id.) Vernon disputes that he refused to sign up for sick call. (Doc. 92, ¶ 11).
On February 18, 2013, Doctor Alan Jay Popick (“Dr. Popick”) prescribed an
Alvesco 160 mcg inhaler to treat Vernon’s asthma. (Doc. 80, ¶ 12; Doc. 81-3, p. 2;
¶ 6). As a registered nurse, Defendant Mirolli is not permitted to prescribe
medications. (Doc. 81-11, ¶ 5). She did not dispense the inhaler to Vernon; it was
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dispensed by Licensed Practical Nurse (“LPN”) Renee Kerr on February 19, 2013.
(Doc. 80, ¶¶ 12, 13; Doc. 81-11, ¶¶ 6, 7). In relying on the allegations in his
amended complaint, that Defendant Mirolli replaced his empty “Q-Var” inhaler
with an “Alvesco Ciclesonide” inhaler, and that when he informed Mirolli that he
did not have a prescription for Alvesco, Mirolli allegedly responded “we don’t
have any more Q-Var inhalers, so this is what we are giving everybody as a
replacement,” Vernon disputes that Defendant Mirolli did not provide him the
inhaler. (Doc. 63, ¶¶ 4-6. (Doc. 92, ¶¶ 12, 13).
On February 21, 2013, he had blood drawn; the results were documented on
February 22, 2013. (Doc. 80, ¶ 14; Doc. 92, ¶ 14).
On February 24, 2013, at 5:45 p.m., Defendant Hyde treated Vernon for
complaints of chest pain and a headache. (Doc. 80, ¶ 15; Doc. 92, ¶ 15). Vernon
reported eating prior to the onset of chest pain. (Id.) His vital signs were taken and
he was asked numerous questions about the pain. (Doc. 80, ¶ 15). As a registered
nurse, Hyde is not permitted to prescribe medications. (Doc. 81-4, ¶ 15). Hyde
dispensed 400mg of Motrin and advised him to return the next morning if the pain
continued. (Doc. 80, ¶ 15). Vernon disputes that Hyde took vital signs and asked
numerous questions about pain. (Doc. 92, ¶ 15).

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Vernon returned to the medical department at 7:50 p.m. with complaints of
chest pain. (Doc. 80, ¶ 16; Doc. 92 ¶ 16). Defendant Yordy took Vernon’s vital
signs and documented that there was no evidence of acute distress however,
because it was his second complaint for chest pain, an electrocardiogram (EKG)
was administered. (Id.) As a registered nurse, he is not permitted to prescribe
medications. (Doc. 81-6, ¶ 24). Yordy instructed Vernon to report back in the
morning if the pain continued. (Doc. 80, ¶ 16; Doc. 92 ¶ 16). Dr. Popick reviewed
the EKG on February 26, 2013. (Doc. 80, ¶¶ 17, 19).
On February 28, 2013 at 7:50 p.m., Defendant Yordy addressed Vernon’s
complaints of “pressure like” pain in his chest. (Id. at 20). Vernon’s vital signs
were normal. (Id.) Yordy suggested Vernon request a sick call the following
morning for further evaluation if pain continued. (Id.) Vernon did not request
sick call the following morning. (Id. at 21). Vernon asserts that his placement in
the Restrictive Housing Unit prevented him from going to sick call unless
summoned by medical staff. (Doc. 92, ¶ 21).
C.

Discussion

Vernon argues that Defendants Mirolli, Hyde and Yordy violated his Eighth
Amendment rights when the exhibited “deliberate indifference. . . regarding the
substituting of his prescribed asthma inhaler that resulted in injury, pain and
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suffering. . . in the form of headaches, chest pains as well as swelling of and pain
to the left side of his body.” (Doc. 90, p. 1).
Individual liability will be imposed under Section 1983 only if the state actor
played an “affirmative part” in the alleged misconduct. See Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1998)). Defendants in Section 1983 civil rights actions “must have
personal involvement in the alleged wrongs . . . shown through allegations of
personal direction or of actual knowledge and acquiescence.” Atkinson v. Taylor,
316 F.3d 257, 271 (3d Cir. 2003); Rode, 845 F.2d at 1207-08. When a plaintiff
merely hypothesizes that an individual defendant may have had knowledge of or
personal involvement in the deprivation of his or her rights, individual liability will
not follow. Atkinson, 316 F.3d at 271; Rode, 845 F.2d at 1207-08.
To establish a violation of the right to adequate medical care, a plaintiff must
show a serious medical need and acts or omissions by prison officials that
indicated a deliberate indifference to that need. Estelle v. Gamble, 429 U.S. 97,
106 (1976); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate
indifference requires proof that the official “knows of and disregards an excessive
risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d
575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
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Deliberate indifference has been found where a prison official: “(1) knows of a
prisoner’s need for medical treatment but intentionally refuses to provide it; (2)
delays necessary medical treatment based on a nonmedical reason; or (3) prevents
a prisoner from receiving needed or recommended treatment.” Rouse, 182 F.3d at
197. Deference is given to prison medical authorities in the diagnosis and
treatment of patients, and courts “disavow any attempt to second-guess the
propriety or adequacy of a particular course of treatment . . . (which) remains a
question of sound professional judgment.” Inmates of Allegheny Cnty. Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d
44, 48 (4th Cir. 1977)). Allegations of negligent treatment or medical malpractice
do not trigger constitutional protections. Estelle, 429 U.S. at 105–06.
With regard to Defendant Mirolli, despite Vernon’s contentions to the
contrary, it is clear from the record that Dr. Popick prescribed the inhaler on
February 18, 2013. Mirolli is not permitted to prescribe medication. Mirolli did
not provide Vernon with the inhaler; LPN Kerr dispensed the inhaler. The record
is devoid of any facts that Mirolli was personally involved in treating Vernon in
any manner at the relevant time. Notably, even had Mirolli directly dispensed the
inhaler to Vernon, she would have simply been following Dr. Popick’s prescribed

15

treatment plan. Defendant Mirolli is entitled to summary judgment based on lack
of personal involvement.
As concerns Hyde and Yordy, the record clearly demonstrates that they were
not involved in prescribing the inhaler to Vernon. On each occasion that Vernon
presented with complaints, both Hyde and Yordy immediately addressed medical
concerns. Exams were conducted and, when warranted, blood work and diagnostic
tests were performed and, at the conclusion of his visits, Vernon was advised to
return to the medical department if his problems persisted. No claim of deliberate
indifference is made out where a significant level of care has been provided, as is
the case here, and all that is shown is that the prisoner disagrees with the
professional judgment of a physician. Estelle, 429 U.S. at 105–06, 107 (finding
that “in the medical context, . . . 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”); Parham v. Johnson, 126 F.3d 454,
458 n. 7 (3d Cir. 1997) (recognizing “well-established law in this and virtually
every circuit that actions characterizable as medical malpractice do not rise to the
level of ‘deliberate indifference’ ”); Durmer, 991 F.2d at 67 (same). See also
Taylor v. Norris, 36 F. App’x. 228, 229 (8th Cir. 2002) (finding that deliberate
indifference claim failed because it involved a disagreement over recommended
16

treatment for hernias and decision not to schedule a doctor’s appointment); AbdulWadood v. Nathan, 91 F.3d 1023, 1024–35 (7th Cir. 1996) (holding that an
inmate’s disagreement with selection of medicine and therapy for sickle cell
anemia falls well short of demonstrating deliberate indifference); Czajka v.
Caspari, 995 F.2d 870, 871 (8th Cir. 1993) (finding inmate’s mere disagreement
with doctor’s informed decision to delay surgery does not establish Eighth
Amendment claim). Courts will not second guess whether a particular course of
treatment is adequate or proper. See Parham v. Johnson, 126 F.3d 454, 458 n.7
(3d Cir. 1997) (quoting Inmates of Allegheny Cnty. Jail, 612 F.2d at 762). See
also, e.g., Gause v. Diguglielmo, 339 F. App’x 132, 136 (3d Cir. 2009) (a dispute
over the choice of medication does not rise to the level of an Eighth Amendment
violation); Rush v. Fischer, No. 09-9918, 2011 WL 6747392, at *3 (S.D.N.Y.
2011) (“The decision to prescribe one form of pain medication in place of another
does not constitute deliberate indifference to a prisoner’s serious medical needs.”).
Hyde and Yordy provided Vernon with a significant level of medical treatment. He
clearly disagrees with Dr. Popick’s course of treatment in prescribing him a
different asthma inhaler and the manner in which medical staff handled his
complaints and managed his treatment. Consequently, Defendants Hyde and
Yordy are entitled to an entry of summary judgment.
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III.

STATE LAW CLAIMS
Vernon’s state law claims will also be dismissed. Supplemental jurisdiction

over state-law claims is governed by 28 U.S.C. § 1367(a), which provides that
“district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a). The Court may decline to exercise
supplemental jurisdiction if it “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). Since the claims that form the basis of this
Court’s original jurisdiction will be dismissed, the Court declines to exercise
supplemental jurisdiction.
IV.

CONCLUSION
Based on the foregoing, the motion (Doc. 83) to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) filed on behalf of Diamond Drugs will be
granted. The motion (Doc. 78) for summary judgment pursuant to Federal Rule of
Civil Procedure Rule 56 filed on behalf of Defendants Mirolli, Hyde and Yordy
will also be granted.
A separate order will enter.

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