         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
