09-4650-pr
Collazo v. Pagano




                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            August Term, 2011

(Argued: August 24, 2011                                                     Decided: September 2, 2011)

                                           Docket No. 09-4650-pr

STEVEN COLLAZO,

                    Plaintiff-Appellant,

                    v.

JAMES PAGANO, Food Services Manager, Great Meadow Correctional Facility,

                    Defendant-Appellee,

DR. EDMUNDO NUNEZ, Physician, Great Meadow Correctional Facility, and GARY GREENE,
Superintendent, Great Meadow Correctional Facility,

                    Defendants.


Before: WINTER, CABRANES, and STRAUB, Circuit Judges.

        Steven Collazo, an inmate who filed a 42 U.S.C. § 1983 claim against prison officials at Great
Meadow Correctional Facility, appeals from two orders entered in the United States District Court for
the Northern District of New York (Norman A. Mordue, Chief Judge). One order revoked Collazo’s in
forma pauperis status pursuant to 28 U.S.C. § 1915(g). The other granted defendant-appellee James
Pagano summary judgment on Collazo’s claims of deliberate indifference to medical needs and due
process violations. We hold that the District Court’s order revoking Collazo’s in forma pauperis status
was correct because, on the basis of Mills v. Fischer, 645 F.3d 176 (2d Cir. 2011), any action dismissed on
the ground of absolute prosecutorial immunity is presumed “frivolous” for purposes of 28 U.S.C. §
1915(g). Collazo’s other claims on appeal are without merit. Accordingly, the two orders of the
District Court are AFFIRMED.




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                                CATHERINE G. PATSOS (Arthur S. Linker, Alexis L. Cirel, and Jonathan
                                     Rotenberg, of counsel, Katten Muchin Rosenman LLP, New York,
                                     NY, for Plaintiff-Appellant.

                                KATE H. NEPVEU, Assistant Solicitor General (Eric T. Schneiderman,
                                      Attorney General, on the brief, and Barbara D. Underwood,
                                      Solicitor General, and Michael S. Belohlavek, Senior Counsel, of
                                      counsel), Office of the Attorney General, State of New York,
                                      Albany, NY, for Defendant-Appellee.


PER CURIAM:

        Plaintiff-appellant Steven Collazo, an inmate at Great Meadow Correctional Facility (“Great

Meadow”), filed suit, pro se, in the United States District Court for the Northern District of New York

(Norman A. Mordue, Chief Judge) against three Great Meadow employees. Collazo’s suit, brought

pursuant to 42 U.S.C. § 1983, alleges that he had been improperly denied access to medically-prescribed

therapeutic diets, resulting in violations of his Eighth Amendment right to be free from cruel and

unusual punishment and of his Fourteenth Amendment right to due process.

        The litigation did not go well for Collazo. First, his in forma pauperis status was revoked after the

District Court concluded that he was a “three-strikes” litigant within the meaning of § 1915(g) of the

Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). Collazo paid the filing fee so that he

could proceed with his cause. Subsequently, the District Court, relying on a Report &

Recommendation prepared by Magistrate Judge David R. Homer, granted defendants’ motion for

summary judgment and dismissed the suit. Collazo, now represented by counsel, appeals the

revocation of his in forma pauperis status, as well as the decision of the District Court to grant summary

judgment to one of the defendants, James Pagano.

                                            BACKGROUND

        On January 22, 2003, Collazo, then incarcerated at Great Meadow Correctional Facility, was

examined by Dr. Edmundo Nunez, a facility physician. Following some tests, Dr. Nunez concluded


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that Collazo’s triglyceride levels would benefit from a therapeutic diet low in saturated fats. Collazo

remained on this diet for several months, but it was jeopardized on September 15, 2003, when a

corrections officer issued a misbehavior report to Collazo for allegedly throwing away his food after

having an argument with a kitchen server. Collazo was charged with violating three prison disciplinary

rules: refusing direct orders by not complying with his medical diet, wasting food by throwing away his

special dietary meal, and failing to comply with mess hall serving policies.

        Defendant James Pagano, the Director of Food Services at Great Meadow Correctional Facility,

was informed of this incident by the corrections officer and a cook, both of whom said that this was

the fourth time Collazo had thrown away his food. Accordingly, Pagano recommended to Dr. Albert

Paolano, Director of Health Services at Great Meadow, that Collazo’s special diet be discontinued. Dr.

Paolano approved the request, and Collazo was notified on September 17 that his diet would be

discontinued as of September 19.

        At a disciplinary hearing on September 18, 2003, Collazo was found guilty of refusing a direct

order, but was found not guilty of wasting food and of failing to comply with mess hall policy. On

September 26, Collazo filed a grievance in order to have his special diet restored. On October 10,

Collazo’s request was granted, conditioned on his first visiting with Dr. Nunez.

        Over the next few months, Collazo was a “no show” for several scheduled visits with Dr.

Nunez. Collazo finally appeared for his scheduled appointment in April 2004. By July, Dr. Nunez had

diagnosed Collazo with diabetes, and at that point recommended that he be placed on a new specialized

diet. Subsequently, Pagano conducted a review in which it was discovered that Collazo had missed

eighteen of his special meals during the week of July 19, 2004. On this basis, Pagano once again

recommended to Dr. Paolano that Collazo’s special diet be revoked, a recommendation Dr. Paolano

once again accepted.

        Upon further investigation, it came to light that Collazo had missed all of these meals because

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no one had informed him that he was once again eligible for a special dietary offering. Collazo was

found not guilty at the resulting disciplinary hearing, and his special diet was restored on September 21,

2004. He appears to have remained on the diet since.

        Collazo commenced the instant action on July 31, 2006. Pursuant to 42 U.S.C. § 1983, Collazo

brought suit against Pagano, Dr. Nunez, and Gary Greene (Superintendent of Great Meadow), claiming

that they improperly denied him his medically-prescribed therapeutic diets, thereby violating his due-

process rights under the Fourteenth Amendment, as well as his Eighth Amendment right to be free

from cruel and unusual punishment.

                                                     DISCUSSION

        We turn first to the issue of whether the District Court correctly revoked Collazo’s in forma

pauperis status on account of his having accrued at least three “strikes” pursuant to § 1915(g). “The

district court’s decision that a certain type of dismissal constitutes a ‘strike’ for purposes of § 1915(g) is

an ‘interpretation of a federal statute . . . which [this Court] review[s] de novo.’” Tafari v. Hues, 473 F.3d

440, 442 (2d Cir. 2007) (quoting United States. v. Edwards, 960 F.2d 278, 281 (2d Cir. 1992)) (alterations

in original). Collazo does not challenge two of the strikes found by the District Court, but, in relevant

part, he argues that the District Court improperly counted one suit that he had filed that was ultimately

dismissed by the United States District Court for the Eastern District of New York on the grounds of

absolute prosecutorial immunity. Collazo contends that dismissal on the grounds of absolute immunity

does not fit within the definition of a “strike” set forth in § 1915, and thus cannot be counted against

him.1 However, as we have only recently stated: “[§ 1915] does not explicitly categorize as frivolous a

        1
            Section 1915(g) provides:

        In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this
        section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought
        an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
        malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent
        danger of serious physical injury.


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claim dismissed by reason of judicial immunity, but we will: Any claim dismissed on the ground of

absolute judicial immunity is ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).” Mills v. Fischer, 645 F.3d

176, 177 (2d Cir. 2011). We think the same can be said of any claim dismissed on the ground of

absolute prosecutorial immunity.2 Additionally, we agree with the District Court that Collazo’s

complaint failed to establish that he was “under imminent danger of serious physical injury.” § 1915(g).

Indeed, by the time the suit was filed, Collazo had already been restored to a satisfactory diet.3

         Next we turn to Collazo’s argument that the District Court improperly granted Pagano’s motion

for summary judgment on Collazo’s § 1983 claims of deliberate indifference to his serious medical

needs and denial of due process. We review de novo a district court’s grant of summary judgment,

drawing all factual inferences in favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide,

Inc., 532 F.3d 101, 107 (2d Cir. 2008). “Summary judgment is proper only when, construing the

evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344

(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

         Deliberate indifference has two necessary components, one objective and the other subjective.

See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Subjectively, the official must have acted with

the requisite state of mind, the “equivalent of criminal recklessness.” Id. There is nothing in the record

that indicates that Pagano had this necessary intent either time he asked for Collazo’s special dietary

status to be revoked. The first time Pagano asked that Collazo’s special diet be revoked, he was acting



         28 U.S.C. § 1915(g).


           2
             In light of this holding, we have no need to consider the question of whether our summary affirmance of a
district court’s dismissal of a complaint for failure to state a claim counts as a separate “srtike” under § 1915.
         3
           We also find no problem with the District Court’s “order” that Collazo be “barred from filing any in forma
pauperis complaints in the Northern District of New York unless he is under imminent danger of physical injury,” since
this merely restates the limitation placed upon Collazo by the PLRA in light of his three strikes.

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on the basis of information, provided to him by prison officials, that Collazo had been violating mess

hall rules. The second time, Pagano acted after his own investigation revealed that Collazo had been

routinely skipping his specialized meals. Collazo does not contest the fact that he had indeed missed

these meals; once Pagano became aware that Collazo’s “violations” were the result of an innocent

misunderstanding, the special diet was restored.

        Finally, Pagano was entitled to qualified immunity on Collazo’s due process challenge. Even

assuming for the argument that Collazo had a protected property interest in receiving a special diet—a

matter upon which we intimate no view—Collazo fails to draw to our attention any case of our Court

or of the Supreme Court establishing such a right. Accordingly, we conclude that Collazo’s purported

right to due process in this context was not so clearly established that a reasonable person would have

known of it. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

                                          CONCLUSION

        To summarize:

        (1) We hold, based on our recent opinion in Mills, that any action dismissed on the ground of

absolute prosecutorial immunity is presumed “frivolous” for purposes of 28 U.S.C. § 1915(g).

        (2) The remainder of Collazo’s arguments on appeal are without merit.

        Accordingly, the orders of the District Court revoking Collazo’s in forma pauperis status and

granting Pagano summary judgment are hereby AFFIRMED.




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