On a motion to dismiss for failure to state a claim upon which relief can be granted, the court accepts the factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 113 S. Ct. 1412 (1993); Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988). A complaint should not be dismissed for failure to state a claim unless, "after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of New York, 974 F.2d at 298 (quoting Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)). Moreover, pro se complaints are to be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir. 1986).
A claim under § 1983 for inadequate medical treatment is governed by the standards of the Eighth and Fourteenth Amendments to the Constitution, violation of which may be shown by prison officials' "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976).
A challenge to a decision based on medical judgment generally does not implicate the Eighth Amendment's cruel and unusual punishment clause but constitutes, at most, a medical malpractice claim which may be cognizable in a state court but not in a federal § 1983 action. Estelle v. Gamble, 429 U.S. at 106-07; Arroyo v. Schaefer, 548 F.2d 47, 49-50 (2d Cir. 1977); Church v. Hegstrom, 416 F.2d 449, 451 (2d Cir. 1969); Kaminsky v. Rosenblum, 737 F. Supp. 1309, 1316 (S.D.N.Y. 1990), appeal dismissed, 929 F.2d 922 (2d Cir. 1991). There is no right to the treatment of one's choice, McCullough v. Scully, 784 F. Supp. 115, 117 (S.D.N.Y. 1992); Harding v. Kuhlmann, 588 F. Supp. 1315, 1317 n.8 (S.D.N.Y. 1984), aff'd, 762 F.2d 990 (2d Cir. 1985), and "mere negligence in the treatment of a prisoner's physical condition, or claims based on differences of opinion over matters of medical judgment, fail to rise to the level of a § 1983 violation," Sloan v. Zelker, 362 F. Supp. 83, 84 (S.D.N.Y. 1973) (quoting Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972)); see Gill v. Mooney, 824 F.2d at 195.
Furthermore, while a municipality and its agencies are subject to liability under § 1983, such liability cannot result merely from an improper or even unconstitutional act of its employees under a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 690-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Rather, the conduct for which liability is sought to be imposed must have been taken pursuant to a municipality's "official policy." This "official policy" requirement was found by the Supreme Court in Monell on analyses of the language of § 1983 itself (imposing liability on a person who "subjects or causes to be subjected" someone to a deprivation of federal rights) and of the legislative history of the provision (showing Congress doubted its power to impose liability on a municipality to control the conduct of others as opposed to itself). It was intended "to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (emphasis in original; footnote omitted). A single act of a governmental official or employee thus does not give rise to liability unless it was one taken pursuant to or caused by an official policy or the official or employee was one who possessed final authority to establish municipal policy with respect to the conduct at issue. Only thus can it be said that the activity is that of the municipality.
The New York City Health and Hospitals Corporation is a public benefit corporation created to provide health and medical services to New York City residents pursuant to the New York City Health and Hospitals Corporation Act, N.Y. Unconsol. Laws §§ 7382 et seq. (McKinney 1979 & 1993 Supp.). As a municipal corporation, NYCHHC's liability under § 1983 is governed by the principles set forth in Monell v. Department of Social Services and its progeny. Rookard v. Health & Hosps. Corp., 710 F.2d 41, 44-45 (2d Cir. 1983); Brown v. Coughlin, 758 F. Supp. 876, 884 (S.D.N.Y. 1991). According to the defendants' memorandum of law in support of their motion to dismiss the complaint, Bellevue Hospital is one of several NYCHHC facilities that provides services and is operated, managed, administered and controlled by NYCHHC. (The defendants state that "accordingly, Bellevue Hospital and HHC should be construed as one and the same defendant." Memorandum at 4, n.2.) The New York City Department of Corrections is an agency of the City of New York, and the scope of § 1983 liability for its unconstitutional acts is thus also defined by the principles discussed above. See Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir. 1986); Griffin v. Rikers Island House of Detention, No. 91 Civ. 1694 (LBS), 1993 U.S. Dist. LEXIS 389 at *3-6, 1993 WL 17203 at *1-2 (S.D.N.Y. Jan. 19, 1993).
Defendants contend that plaintiff has failed to allege the existence of any official policy which gave rise to the alleged violation of his rights and has not pleaded any facts that could be read to constitute such a policy. Therefore, they argue, his complaint is based merely on a respondeat superior theory and must be dismissed. They do acknowledge that plaintiff makes a "conclusory allegation that the doctor was 'acting under the policies of Bellevue Hospital,'" but state that "he fails to state or establish exactly what that policy is." Memorandum at 7. They also appear to contend that the complaint is insufficient because plaintiff has not alleged "that there were any other incidents where defendants violated any policy of [sic] practice." Id.2
A plaintiff is not required to "state or establish exactly" in his complaint the policy by which he alleges the defendants violated his rights, nor is he required to plead more than a single instance of misconduct. Both these contentions were recently dealt with by the Supreme Court in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993), in which the Court held § 1983 complaints should not be held to a "heightened pleading standard" beyond what is required generally by Fed. R. Civ. P. 8(a). In rejecting a heightened pleading standard for § 1983 cases applied by the Fifth Circuit, the Court endorsed the following language of the Ninth Circuit in Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988):
. . . a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice.