    15-3171
    Mercer v. APS Healthcare, Inc.


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 22nd day of September, two thousand sixteen.

    PRESENT:
                Robert A. Katzmann,
                      Chief Judge,
                Robert D. Sack,
                Peter W. Hall,
                      Circuit Judges.
    ________________________________________

    James R. Mercer, Jr.,

                                Plaintiff-Appellant,

                       v.                                                 15-3171

    APS Healthcare, Inc., in its individual and official
    capacity, Marika V. Winkler, APS Medical
    Reviewer, in her individual and official capacity,
    Jonathan S. Strenio, APS Medical Director, in his
    individual and official capacity, M. Christina Misa,
    Regional Medical Director, in her individual and
    official capacity, Gerald R. Amatucci, Regional
    Medical Director, in his individual and official
    capacity,

                                Defendants-Appellees.

    ________________________________________
FOR APPELLANT:                       James R. Mercer, pro se, Collins, NY.

FOR APPELLEES:                       William C. Firth and Michael Joseph Murphy, Carter,
                                     Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany,
                                     NY; Barbara D. Underwood, Solicitor General, Andrew
                                     Ayers, Senior Assistant Solicitor General, Jeffrey Lang,
                                     Assistant Solicitor General, for Eric T. Schneiderman,
                                     Attorney General of the State of New York, Albany, NY.

       Appeal from a judgment of the United States District Court for the Northern District of

New York (Hurd, J., Treece, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant James R. Mercer, proceeding pro se, appeals from the district court’s

denial of his 42 U.S.C. § 1983 complaint, which alleged that a prison health services provider, two

of its employees, and two prison physicians were deliberately indifferent to his serious medical

needs, in violation of the Eighth Amendment, by repeatedly denying him an orthopedic evaluation.

The district court granted summary judgment in favor of the defendants, finding that Mercer failed

to present evidence that the defendants acted with the requisite level of culpability for deliberate

indifference. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

       We review de novo a district court’s grant of summary judgment. Garcia v. Hartford

Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted

if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). When determining whether a genuine dispute exists, we

must “resolve all ambiguities and draw all inferences against the moving party.” Garcia, 706

F.3d at 127. A party cannot overcome summary judgment by relying on “mere speculation or

conjecture as to the true nature of the facts” because “conclusory allegations or denials . . . cannot
by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d

Cir. 1995)). We review discovery rulings for abuse of discretion. Export-Import Bank of the

Republic of China v. Grenada, 768 F.3d 75, 85 (2d Cir. 2014).

       To establish a constitutional claim of inadequate medical care, a prisoner must prove that

the defendants were deliberately indifferent to his serious medical needs. Smith v. Carpenter, 316

F.3d 178, 183 (2d Cir. 2003). The deliberate indifference standard has an objective and a

subjective prong. Id. To satisfy the objective prong, “the alleged deprivation of adequate

medical care must be ‘sufficiently serious.’” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.

2006) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The subjective prong requires

that the prison official acted “with a sufficiently culpable state of mind.” Id. at 280. The

requisite level of culpability is akin to criminal recklessness; the defendant must have acted or

failed to act “while actually aware of a substantial risk that serious inmate harm [would] result.”

Id. “[T]he [defendant] must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and [he or she] must also draw the inference.” Farmer,

511 U.S. at 837. “Thus, even if objectively unreasonable, a defendant’s mental state may be

nonculpable.” Salahuddin, 467 F.3d at 281.

       Upon review, we agree with the district court that Mercer did not satisfy the subjective

prong of the deliberate indifference test. Specifically, Mercer failed to submit evidence creating a

genuine issue of material fact as to whether the defendants were “actually aware of a substantial

risk” of harm to Mercer when they denied several orthopedic evaluation referrals. See id. at 280.

The evidence shows that the defendants denied the orthopedic referrals in favor of having Mercer


                                                 3
fully explore less invasive options, and does not suggest that they were aware of any substantial

risk of harm created by these denials. Even if their decision to delay a surgical evaluation in favor

of physical therapy or a physiatrist evaluation amounted to medical malpractice, “medical

malpractice does not become a constitutional violation merely because the victim is a prisoner.”

See Smith, 316 F.3d at 184 (alteration omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)).

       Mercer’s challenge to the magistrate judge’s denial of a motion to compel production of

standardized clinical care guidelines relied upon by the defendants also fails. As an initial matter,

we have jurisdiction to review this order even though Mercer’s notice of appeal did not identify the

discovery order, because “we read a pro se appellant’s appeal from an order closing the case as

constituting an appeal from all prior orders.” Elliott v. City of Hartford, 823 F.3d 170, 171 (2d Cir.

2016) (per curiam). However, Mercer waived review of this issue by failing to object to the

magistrate judge’s order denying his discovery request. See Caidor v. Onondaga Cty., 517 F.3d

601, 605 (2d Cir. 2008). In any event, the denial was not an abuse of discretion because, in lieu of

requiring production of the guidelines, the magistrate judge ordered the defendants to provide a

more detailed analysis of their determination of his treatment plan. This alternative is sufficient to

withstand our review.

       We have considered Mercer’s remaining arguments on this appeal and are not persuaded

by them. Accordingly, we AFFIRM the judgment of the district court.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




                                                  4
