Bolden v. County of Sullivan , 523 F. App'x 832 ( 2013 )

11-4337
Bolden v. County of Sullivan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 6th day of May, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 SUSAN L. CARNEY,
9 J. CLIFFORD WALLACE,*
10 Circuit Judges.
11
12 _____________________________________
13
14 Carolyn Brown Bolden, Artie C.
15 Bolden,
16
17
18 Plaintiffs-Appellants,
19
20 v. 11-4337
21
22 County of Sullivan, et al.,
23
24
25
26 Defendants-Appellees.
27 _____________________________________
28
*
Judge J. Clifford Wallace, of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
1
2 FOR PLAINTIFFS-APPELLANTS: Carolyn Brown Bolden, Artie C.
3 Bolden, pro se, Albany, NY.
4
5 FOR DEFENDANTS-APPELLEES: Samuel S. Yasgur, Sullivan
6 County Attorney’s Office,
7 Monticello, NY; Michael
8 Davidoff, Drew, Davidoff &
9 Edwards Law Offices, LLP,
10 Monticello, NY.
11
12 Appeal from a judgment and order of the United States
13 District Court for the Southern District of New York
14 (Stanton, J.).
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment is AFFIRMED.
17 Appellants Carolyn Brown Bolden and Artie C. Bolden,
18 pro se, appeal from the district court’s summary judgment in
19 favor of the defendants, dismissing their complaint alleging
20 claims of deliberate indifference to Brown Bolden’s life and
21 safety in violation of the Fourteenth Amendment and 42
22 U.S.C. § 1983, negligence, medical malpractice, false
23 imprisonment, the County’s tolerance and deliberate
24 indifference towards a pattern and practice of permitting
25 illegal detentions, and Artie C. Bolden’s loss of his wife’s
26 consortium. We assume the parties’ familiarity with the
27 underlying facts, the procedural history of the case, and
28 the issues on appeal. The Boldens have abandoned their
2
1 negligence, medical malpractice, and loss of consortium
2 claims by not raising them on appeal, and their false
3 imprisonment claim by not raising arguments concerning it.
4 See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
5 The district court properly granted summary judgment in
6 favor of Nurse Joanne Ozolins and dismissed the complaint as
7 to all defendants, including the County of Sullivan
8 (“County”) and the Sullivan County Jail (“County Jail”).1
9 To substantiate an Eighth Amendment claim for medical
10 indifference, a plaintiff must prove that the defendant was
11 deliberately indifferent to a serious medical need. See
12 Farmer v. Brennan, 511 U.S. 825, 834-35 (1994). The
13 deliberate indifference standard is comprised of an
14 objective and subjective component. Hathaway v. Coughlin,
15 99 F.3d 550, 553 (2d Cir. 1996). “Objectively, the alleged
16 deprivation must be sufficiently serious, in the sense that
17 a condition of urgency, one that may produce death,
18 degeneration, or extreme pain exists.” Id. (internal
19 quotation marks omitted). “Subjectively, the charged
1
We review de novo a district court’s summary judgment, with
the view that “[s]ummary judgment is appropriate only if the
moving party shows that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a
matter of law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
292, 300 (2d Cir. 2003).
3
1 official must act with a sufficiently culpable state of
2 mind,” i.e., “something more than mere negligence,” and akin
3 to criminal recklessness. Id. Moreover, not every claim of
4 inadequate medical treatment made by a prisoner states a
5 violation of the Eighth Amendment. See Salahuddin v. Goord,
6 467 F.3d 263, 279-80 (2d Cir. 2006). Indeed, we have held
7 that a disagreement with the type of medical care provided
8 is insufficient to state a constitutional claim; “the
9 essential test is one of medical necessity and not one
10 simply of desirability.” Dean v. Coughlin, 804 F.2d 207,
11 215 (2d Cir. 1986); see also Chance v. Armstrong, 143 F.3d
12 698, 703 (2d Cir. 1998).
13 Although the Boldens allege that the defendants failed
14 to provide Brown Bolden with her necessary medications, the
15 evidence showed that Brown Bolden was provided with
16 medications on a daily basis during her incarceration. The
17 declarations and exhibits included with Ozolins’s motion for
18 summary judgment indicated that: (1) Brown Bolden received
19 the medications prescribed by the jail physician, as well as
20 finger sticks to monitor her blood sugar, on a daily basis;
21 (2) she was evaluated on several occasions by the County
22 Jail’s medical staff, as well as by an endocrinologist; and
4
1 (3) after her fall, she was evaluated and sent to the
2 hospital. In response to these factual findings and the
3 information contained in the exhibits, the Boldens continued
4 to rely only on conclusory allegations that Brown Bolden
5 fell and was injured as a result of the defendants’ failure
6 to provide her medications on a daily basis.
7 While the district court stated that the Boldens did
8 not demonstrate that Brown Bolden failed to receive any
9 particular medication during her incarceration, Ozolins’s
10 summary judgment exhibits demonstrated that Brown Bolden was
11 not given Januvia, Nexium, or Ambien, which she had taken
12 before she was incarcerated, and that her Naproxen
13 prescription was discontinued on April 10, 2009. However,
14 the Boldens at no point argued that the discontinuance of
15 any one of these medications, specifically, caused Brown
16 Bolden’s fall. Accordingly, because the first step in
17 analyzing an Eighth Amendment claim is to determine “whether
18 the prisoner was actually deprived of adequate medical
19 care,” Salahuddin, 467 F.3d at 280, that the record
20 demonstrates that Brown Bolden actually received appropriate
21 and reasonable care given her medical conditions—and that
22 she simply disagrees with the medical judgment of the County
5
1 Jail medical staff regarding the proper course of treatment
2 during her incarceration—confirms that the Boldens’
3 constitutional claim fails as a matter of law, see Chance,
4 143 F.3d at 703; Dean, 804 F.2d at 215. Therefore, the
5 district court did not err in granting summary judgment in
6 favor of Ozolins.
7 Moreover, the district court properly dismissed the
8 complaint as to the remaining defendants, the County and the
9 County Jail. Although the district court did not explain
10 its reasoning for dismissing the Boldens’ complaint as to
11 these defendants, the Boldens failed to allege, beyond
12 conclusory statements in their complaint, any unlawful
13 municipal policy or custom. See Monell v. Dep’t of Soc.
14 Servs., 436 U.S. 658 (1978). Further, because the district
15 court properly found no underlying constitutional violation,
16 its decision not to address the County defendants’ liability
17 under Monell was correct. See Segal v. City of New York,
18 459 F.3d 207, 219 (2d Cir. 2006). To the extent that the
19 Boldens, for the first time in their brief on appeal,
20 attempt to present a new claim that the stress of Brown
21 Bolden’s alleged illegal detention contributed to her fall,
22 we decline to consider it. See Singleton v. Wulff, 428 U.S.
23 106, 120-21 (1976).
6
1 We have considered all of the Boldens’ remaining
2 arguments and find them to be without merit.
3 Accordingly, we AFFIRM the judgment of the district
4 court.
5
6 FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7