10-4594-pr
Bilal v. White
                            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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30th day of August, two thousand twelve.

PRESENT: RALPH K. WINTER,
         REENA RAGGI,
         GERARD E. LYNCH,
                   Circuit Judges.

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SHATEEK AMIN BILAL,
                                 Plaintiff-Appellant,

                           v.                                         No. 10-4594-pr

B. WHITE,
                                  Defendant-Appellee,

NEW YORK STATE DEPARTMENT OF
CORRECTIONS, PHILIP D. HEATH, JAMES PURDY,
LESLIE MALIN, F.N.U. CASELLAS, F.N.U.
PANZARELLA, F.N.U. CARRINGTON, JOHN DOES
1–4,
                                  Defendants.*
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           *
               The Clerk of Court is directed to amend the official caption as shown above.
APPEARING FOR APPELLANT:                   JASON CETEL, JOSEPH JAKAS (Jon Romberg,
                                           Kimberly Franko, on the brief), Center for Social
                                           Justice, Seton Hall University School of Law,
                                           Newark, New Jersey.

APPEARING FOR APPELLEES:                   No appearance.

APPEARING AS AMICUS CURIAE
IN SUPPORT OF APPELLEES:                   WON S. SHIN, Deputy Solicitor General
                                           (Barbara D. Underwood, Solicitor General,
                                           Richard Dearing, Deputy Solicitor General,
                                           Michael S. Belohlavek, Senior Counsel, Marion
                                           R. Buchbinder, Assistant Solicitor General, of
                                           Counsel, on the brief), for Eric T. Schneiderman,
                                           Attorney General of the State of New York, New
                                           York, New York.

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

of New York (Jed S. Rakoff, Judge; Andrew J. Peck, Magistrate Judge).

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

DECREED that the judgment entered on October 21, 2010, is AFFIRMED.

       Plaintiff Shateek Amin Bilal, who at the time of the complaint’s filing was

incarcerated in the Sing Sing Correctional Facility in Ossining, New York, appeals pro se

from a grant of summary judgment in favor of defendants on claims that they denied Bilal

access to the prison law library, showed deliberate indifference to his need for prescription

medication, and retaliated against him for filing inmate grievances, all allegedly in violation

of the United States Constitution. On August 2, 2011, this court appointed counsel to assist

Bilal in appealing his deliberate indifference and retaliation claims against defendant

B. White in connection with delaying Bilal’s medication on July 22, 2009. Because the

remainder of the appeal was dismissed, we do not discuss it further.

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       We review an award of summary judgment de novo, construing the record evidence

in the light most favorable to the non-moving party. See Salahuddin v, Goord, 467 F.3d 263,

272 (2d Cir. 2006). We will affirm summary judgment only when the record, so viewed,

reveals “no genuine dispute as to any material fact” and the movant’s entitlement to judgment

as a matter of law. Fed. R. Civ. P. 56(a). Because Bilal has verified his complaint, we treat

it as an affidavit for summary judgment purposes. See Colon v. Coughlin, 58 F.3d 865, 872

(1995). Moreover, because Bilal proceeded pro se below, “we read his papers liberally and

interpret them to raise the strongest arguments that they suggest.” Brownell v. Krom, 446

F.3d 305, 310 (2d Cir. 2006).1 In applying these principles, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Eighth Amendment Claim

       Bilal, an asserted epileptic with compressed vertebrae and arthritis in his back, faults

the district court’s conclusion that he failed to adduce sufficient evidence to support his

Eighth Amendment claim of deliberate indifference to an objectively serious medical need

on July 22, 2009. See Salahuddin v. Goord, 467 F.3d at 279–80 (describing objective and

subjective components to Eighth Amendment deliberate indifference claim). We are not

persuaded. The objective component of an Eighth Amendment deliberate indifference claim



       1
       That same solicitude is unnecessary in construing plaintiff’s submissions on appeal,
where he is ably represented by appointed counsel.

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“requires that the alleged deprivation must be sufficiently serious, in the sense that a

condition of urgency, one that may produce death, degeneration, or extreme pain exists.”

Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (emphasis added; internal quotation marks

omitted). Moreover, where, as here, a prisoner alleges “a temporary delay or interruption

in the provision of otherwise adequate medical treatment, it is appropriate to focus on the

challenged delay or interruption in treatment rather than the prisoner’s underlying medical

condition alone in analyzing whether the alleged deprivation is, in ‘objective terms,

sufficiently serious,’ to support an Eighth Amendment claim.” Smith v. Carpenter, 316 F.3d

178, 185 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998))

(emphases in original).

       Although epilepsy and arthritis arguably are serious underlying conditions, the record

evidence here, taken as true, demonstrates a temporary delay or interruption in the provision

of otherwise adequate medical treatment for those ailments lasting only a few hours. Even

assuming that Bilal’s conditions could produce serious complications if neglected over

sufficient time, cf. Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (recognizing

possibility of complications from long-term failure to treat dental cavity), there is no

evidence that Bilal’s conditions worsened over the hours of delay here, see Smith v.

Carpenter, 316 F.3d at 187 (holding severity of condition informed by “absence of adverse

medical effects or demonstrable physical injury”). Moreover, while Bilal asserts that he

could have had a grand mal seizure, he does not claim to have had one during the period of


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delay or to have suffered any other consequential injurious effects. See generally Harrison

v. Barkley, 219 F.3d at 137 (holding that potential consequences of untreated condition may

support claim for “refused treatment,” if not one for “delayed treatment” (emphases in

original)).

       In fact, the only evidence that Bilal suffered “extreme pain” is his own allegation in

the verified complaint, which does no more than to recite the phrase, without any indication

of the duration, location, or nature of his pain. Furthermore, despite access through

discovery to his complete medical records, Bilal offered none of those records in opposition

to summary judgment, and thus failed to corroborate his allegation with any details, beyond

the general diagnoses described above, of his medical history, the severity of his prior

suffering, or the medications he has been prescribed. On this record, Bilal’s mere recitation

of the formula that he suffered “extreme pain” is insufficient to raise an issue of fact as to

whether the delay of the pain medication was sufficiently serious to rise to the level of an

Eighth Amendment violation.

       The lack of objective record evidence of consequential injury also defeats Bilal’s

alternative argument that White’s alleged retaliatory animus in ignoring Bilal’s pleas for

medication equates to the malicious and sadistic infliction of physical force in violation of

the Eighth Amendment. See, e.g., Wright v. Goord, 554 F.3d 255, 268–69 (2d Cir. 2009)




                                              5
(citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)).1 While a defendant’s decision “to delay

emergency medical aid—even for ‘only’ five hours—in order to make [an inmate] suffer”

can state a claim for deliberate indifference to medical needs, Archer v. Dutcher, 733 F.2d

14, 16 (2d Cir. 1984); see also Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987), the record

here demonstrates no such emergency condition, much less any serious consequence at all

from the delay in treatment.

2.     First Amendment Claim

       We summarily reject Bilal’s argument that the district court erred in awarding

summary judgment on plaintiff’s First Amendment claim for retaliation. To pursue such a

claim, a prisoner must adduce evidence of (1) protected speech or conduct, (2) adverse action

by defendant, and (3) a causal connection between the protected speech and the adverse

action. See Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009). Even where evidence

satisfies each element, a defendant may avoid liability by showing that he “would have

disciplined the plaintiff even in the absence of the protected conduct.”          Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal quotation marks omitted).

       Arguing as amicus curiae in support of White, the State of New York does not dispute

that Bilal’s filing of an inmate grievance qualifies as protected activity for First Amendment


       1
         Thus, we need not here define the contours of such a claim based on a defendant’s
“omissions for the very purpose of causing harm,” Farmer v. Brennan, 511 U.S. 825, 835
(1994), rather than on affirmative acts that interfere with bodily integrity, see Hudson v.
McMillian, 503 U.S. at 9 (concluding that maliciously inflicted “bruises, swelling, loosened
teeth, and a cracked dental plate” constituted actionable Eighth Amendment injury).

                                              6
purposes. Rather, amicus questions Bilal’s Article III standing to pursue a claim for

retaliation for alleged events on July 22, 2009, in the absence of evidence that Bilal was

subjectively chilled by the adverse action. In fact, we have held that an inmate who claims

retaliation for filing grievances need not show that defendants’ conduct thereafter chilled his

own exercise of rights. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (holding

that inmate’s responding to retaliation for filing grievances “with greater than ‘ordinary

firmness’” by filing additional grievances “does not deprive him of a cause of action”).

Nevertheless, we have suggested that the petitioning prisoner must adduce evidence of some

other harm. See id. at 381–83; Espinal v. Goord, 558 F.3d at 128 n.7. If the asserted harm

is personal to the inmate and concrete, as opposed to speculative, Article III’s injury-in-fact

requirement is met even if the cause of action ultimately proves meritless. See Gill v.

Pidlypchak, 389 F.3d at 383 (stating that standing is established by inmate’s clear allegation

of concrete harm “independent of First Amendment chilling”).

       Here, Bilal submits that he was harmed by two adverse actions taken by White. On

July 22, 2009, less than a month after Bilal had filed a successful grievance against White,

defendant (1) fabricated a misbehavior report against Bilal, and (2) temporarily ignored

Bilal’s requests for prescription pain medication. The first allegation is insufficient by itself

to demonstrate injury. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (stating

“inmate has no general constitutional right to be free from being falsely accused in a

misbehavior report”). Bilal offers no evidence that he was wrongly punished based on


                                               7
White’s purportedly false accusation, nor that he was subjected to unfair disciplinary

proceedings. See id. Thus, even if a prisoner would be able to claim injury if placed in

keeplock based on false disciplinary charges, see Gill v. Pidlypchak, 389 F.3d at 384, Bilal’s

failure to adduce any evidence that the disciplinary charges were in fact false supports

summary judgment for defendant on the merits of that claim, see Gayle v. Gonyea, 313 F.3d

677, 683 (2d Cir. 2002); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988).

       As for the delay in Bilal’s receipt of prescription pain medication, we conclude, for

substantially the same reasons that we reject Bilal’s Eighth Amendment claim, that the record

presented fails to bring Bilal’s retaliation claim within “the ambit of constitutional

protection.” Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001) (cautioning against courts’

transforming into retaliation “virtually any adverse action taken against a prisoner by a prison

official”), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

Finally, White’s alleged comments relating to Bilal’s filing of grievances do not, on their

own or in combination with the other alleged acts, amount to actionable harm. See Davis v.

Goord, 320 F.3d 346, 353 (2d Cir. 2003) (stating that “disrespectful comments directed at

an inmate generally do not rise to” level of retaliation).3




       3
          We similarly agree with the district court that White’s subjecting Bilal to a mouth
check after Bilal received his medication on July 22 cannot sustain a retaliation claim; such
a protocol to ensure medication is ingested could unquestionably have occurred “based
on . . . proper reasons alone.” Graham v. Henderson, 89 F.3d at 79.

                                               8
3.     Other Issues

       Because we affirm the district court’s award of summary judgment, we need not reach

amicus’s contentions that plaintiff failed to exhaust his administrative remedies as required

by the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a); Handberry v. Thompson, 446

F.3d 335, 342 (2d Cir. 2006) (holding that exhaustion requirement is not jurisdictional), or

that the action cannot proceed absent service of process on White.

       The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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