17-2876-pr
Neary v. Wright

                             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 A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
19th day of February, two thousand nineteen.

Present:          RALPH K. WINTER,
                  ROSEMARY S. POOLER,
                             Circuit Judges.
                  RONNIE ABRAMS,1
                             District Judge.

_____________________________________________________

CHRISTOPHER R. NEARY,

                               Plaintiff-Appellee,

                        v.                                                 17-2876-pr

JOHNNY WU, M.D., MONICA FARINELLA, M.D., CARY
FRESTON, M.D., RICARDO RUIZ, M.D., and JOHNNY
WRIGHT, M.D., in their individual capacities,

                        Defendants-Appellants.2
_____________________________________________________

Appearing for Appellants:      Zenobia G. Graham-Days, Assistant Attorney General, for George
                               Jepsen, Attorney General of Connecticut, Hartford, C.T.


1
  Judge Ronnie Abrams, United States District Court for the Southern District of New York,
sitting by designation.
2
  The Clerk of Court is directed to amend the caption as above.
Appearing for Appellee:       Andraya B. Pulaski, Day Pitney LLP (Thomas D. Goldberg,
                              Matthew J. Shiroma, on the brief), Hartford, C.T.

Appeal from the United States District Court for the District of Connecticut (Bryant, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

         Appellants Drs. Johnny Wright, Monica Farinella, Cary Freston, Ricardo Ruiz, and
Johnny Wu appeal from the September 6, 2017 order of the United States District Court for the
District of Connecticut (Bryant, J.), denying their defense of qualified immunity against
Christopher Neary’s claim that they were deliberately indifferent to his serious medical needs.
We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

       Defendants-Appellants, all doctors who work in the Connecticut Department of
Corrections System, here appeal from an order denying their motion to dismiss and holding that
they were not entitled to qualified immunity. At all relevant times, Neary was an inmate under
the control of the Connecticut Department of Corrections. Approximately seven years into his
sentence, Neary began experiencing severe pain in his breasts and found several irregular,
growing lumps. Neary now alleges that Defendants-Appellants (1) repeatedly prescribed
medication that did not treat his pain, (2) denied him a recommended surgical consultation to
consider removal of breast tissue, (3) prescribed and then refused to serve him a soy-free diet
designed to reduce his symptoms, and (4) abruptly stopped a narcotic pain medication that
caused Neary to suffer withdrawal when he was not appropriately weaned from the medication.
Neary subsequently brought a complaint alleging that personnel in the Connecticut Department
of Corrections were deliberately indifferent to his serious medical needs.

        As a threshold matter, we consider Dr. Wu’s appeal independently from the appeals of
Drs. Wright, Farinella, Freston, and Ruiz. That is because unlike the other Defendants-
Appellants, Dr. Wu was named in the First Amended Complaint and Second Amended
Complaint, waived service of process, and had an attorney appear on his behalf prior to the first
motion to dismiss. In contrast, the remaining Defendant-Appellants were not named as parties
until after the first motion to dismiss had been decided, much less could they have participated in
the motion.

        Dr. Wu now seeks appellate review of a qualified-immunity defense he has raised twice
on two motions to dismiss. In the district court’s order to deny Dr. Wu’s first motion to dismiss,
the court rejected Dr. Wu’s qualified-immunity defense at the pleadings stage, inviting him to
raise the defense again at summary judgment. Critically, Dr. Wu did not appeal that decision. In the
same opinion, the court ordered the Connecticut Attorney General’s Office to provide Neary
with the proper names of defendants then listed as “John Does 1-10” and ordered Neary to file a
second amended complaint naming those defendants. When Neary did so, Defendants-
Appellants, including Dr. Wu and the defendants now named and served in the action for the first
time, moved to dismiss, arguing that they were entitled to qualified immunity. Dr. Wu joined in




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this motion and made the same arguments for qualified immunity a second time. The district
court rejected the defense. Thereafter, Defendants-Appellants noticed this interlocutory appeal.

         The district court was correct to reject Dr. Wu’s second motion to dismiss that raised
substantially the same arguments as the first. Neary’s Second Amended Complaint did not
substantively modify the allegations against Dr. Wu. Dr. Wu thus moved to dismiss the same
substantive allegations against him twice on the same grounds. This second motion was
precluded by the “law of the case” doctrine: after the first motion to dismiss was decided, it was
the “law of the case” that Dr. Wu was not entitled to a qualified-immunity defense on the
pleadings. See Arizona v. California, 460 U.S. 605, 618 (1983); see also Virgin Atl. Airways, Ltd.
v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (“[W]here litigants have once battled
for the court’s decision, they should not be required, nor without good reason permitted, to battle
for it again.” (internal quotation marks omitted)). Dr. Wu was required to appeal the first adverse
qualified-immunity decision within thirty days of the order, and he did not. Fed. R. App. P.
4(a)(1). This Court therefore lacks jurisdiction to hear Dr. Wu’s interlocutory appeal.

        The remaining Defendants-Appellants—Drs. Farinella, Freston, Ruiz, and Wright—
argued for the first time that they were entitled to qualified immunity on the presently appealed
order denying their qualified-immunity defense. Their appeal is timely, and we consider it on the
merits. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

        We review a district court’s decision on qualified immunity de novo. Anderson v. Recore,
446 F.3d 324, 328 (2d Cir. 2006). Defendants advancing a qualified-immunity defense at the
motion to dismiss stage “face[] a formidable hurdle.” McKenna v. Wright, 386 F.3d 432, 434 (2d
Cir. 2004). On such a motion, “the plaintiff is entitled to all reasonable inferences from the facts
alleged, not only those that support his claim, but also those that defeat the immunity defense.”
Id. at 436. With the benefit of those inferences, we then ask whether the plaintiff has pled “facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.” Ganek v. Leibowitz, 874 F.3d 73, 80
(2d Cir. 2017) (internal quotation marks omitted).

        Neary’s complaint does exactly that. The Supreme Court has established that deliberate
indifference to a prisoner’s serious medical needs violates the Eighth Amendment’s prohibition
of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). We have
previously held that a prisoner-plaintiff establishes a “serious medical need” where she suffered
“chronic pain the magnitude of which probably falls somewhere between ‘annoying’ and
‘extreme.’” Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (emphasis omitted). And in
McKenna v. Wright, we found allegations that doctors failed to run required tests despite obvious
symptoms, failed “to initiate treatment when the need for treatment was apparent,” failed to
arrange follow-up visits despite doctors’ orders, and denied treatment based on flawed policies,
were sufficient to defeat the doctors’ qualified-immunity defense on a motion to dismiss. 386
F.3d at 437.

       Here, Neary has alleged that he suffered chronic pain due to gynecomastia and that his
pain was insufficiently treated. He alleges that doctors repeatedly prescribed inadequate pain
medication, denied recommended tests and surgical consultations, terminated a prescription diet



                                                  3
without explanation, and ended narcotic pain medication without appropriately weaning him off
the medication or substituting another pain medication. Taking all these allegations as true and
drawing all permissible inferences in Neary’s favor and against Defendants-Appellants’
qualified-immunity defense, there is no doubt that Defendants-Appellants are not entitled to
qualified immunity at this juncture. As the district court correctly noted, Defendants-Appellants
may raise the immunity defense after discovery, but it is not available to them now.

       We have considered the remainder of Drs. Wu, Farinella, Freston, Ruiz, and Wright’s
arguments and find them to be without merit. Accordingly, the order of the district court hereby
is AFFIRMED as to Dr. Farinella, Dr. Freston, Dr. Ruiz, and Dr. Wright. We lack jurisdiction
over Dr. Wu’s appeal. Each side to bear its own costs.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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