15-635-pr
Simpson v. Oakes


                          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 1st day of March, two thousand sixteen.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                         Circuit Judges,
                 LAURA TAYLOR SWAIN,
                         District Judge.*
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THEODORE SIMPSON,
                         Plaintiff-Appellant,

                        v.                                               No. 15-635-pr

P.A. BEN OAKES, South Port C.F., C. FELKER, Nurse
Administrator for South Port C.F., M.D. H.
SILVERBERG, for Great Meadow C.F., M.D.
KARANDY, for Great Meadow C.F., J. COLLINS, Nurse
Administrator for Great Meadow C.F.,
                    Defendants-Appellees,

P.A. RODAS, Green Haven C.F., M.D. JIRI BEM, for
Upstate Hospital, M.D. VALCRIAN, for Albany Medical,

*
 The Honorable Laura Taylor Swain, of the United States District Court for the Southern
District of New York, sitting by designation.

                                                     1
HEAD MEDICAL DOCTOR DR. LESTER WRIGHT, for
D.O.C.S., RITA GRINBERG, for D.O.C.S. Medical
Regional Office,
                         Defendants.†
----------------------------------------------------------------------
FOR APPELLANT:                                      Theodore Simpson,    pro   se,   Stormville,
                                                    New York.

FOR APPELLEES:                                Barbara D. Underwood, Solicitor General;
                                              Andrew B. Ayers, Frederick A. Brodie,
                                              Assistant Solicitors General, for Eric. T.
                                              Schneiderman, Attorney General of the State
                                              of New York, Albany, New York.

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

of New York (Glenn T. Suddaby, Judge; David E. Peebles, Magistrate Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 23, 2015, is AFFIRMED.

         Plaintiff Theodore Simpson, a prisoner in the custody of New York’s Department of

Corrections and Community Supervision, appeals pro se from a summary judgment award

in favor of defendants Benjamin Oakes, Catherine Felker, Howard Silverberg, David

Karandy, and Janet Collins on Simpson’s Eighth Amendment claim of deliberate

indifference to serious medical needs. See 42 U.S.C. § 1983. We review an award of

summary judgment de novo and will affirm only if the record, viewed in favor of the

non-moving party, demonstrates there is no genuine issue of material fact and the moving

party’s entitlement to judgment as a matter of law. See Johnson v. Killian, 680 F.3d 234,



†
    The Clerk of Court is directed to amend the caption as set forth above.

                                               2
236 (2d Cir. 2012). 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.

       To defeat summary judgment, Simpson was obliged to adduce evidence that

defendants were deliberately indifferent to a serious medical need.         See Farmer v.

Brennan, 511 U.S. 825, 834 (1994).        This standard consists of both objective and

subjective components.     “Objectively, 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.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal

quotation marks omitted). “Subjectively, the charged official must act with a sufficiently

culpable state of mind,” i.e., “something more than mere negligence” and akin to criminal

recklessness. Id.; accord Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).

       Applying these principles here, we conclude that the district court correctly awarded

summary judgment to Oakes, Felker, Silverberg, Karandy, and Collins for substantially the

reasons stated in Magistrate Judge Peebles’s August 21, 2014 report and recommendation

(“R&R”). See Simpson v. Oakes, No. 9:12-CV-1482 (GTS/DEP), 2015 WL 339408

(N.D.N.Y. Jan. 23, 2015) (adopted R&R).1 Against defendants’ detailed declarations and

Simpson’s own voluminous medical records, Simpson identifies no evidence of deliberate

1
  To the extent Simpson’s reply brief may be construed as challenging the district court’s
Fed. R. Civ. P. 12(b)(6) dismissal of his claims against defendants Byron Rodas, Jiri Bem,
Brian Valerian, Lester Wright, and Rita Grinbergs, we deem these challenges waived.
See Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996) (declining to consider argument
raised for first time in pro se litigant’s reply brief).


                                             3
indifference giving rise to a genuine issue of material fact to be decided at trial. To the

contrary, the record establishes that defendants provided Simpson with extensive medical

care. Insofar as Simpson disagrees with defendants’ medical judgment as to the proper

course of treatment, that does not support a constitutional claim for deliberate indifference.

See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); accord Hernandez v. Keane,

341 F.3d 137, 149 (2d Cir. 2003).2

       Tolan v. Cotton, 134 S. Ct. 1861 (2014), cited by Simpson, compels no different

result. Tolan emphasizes a court’s duty to view evidence in the light most favorable to the

party opposing summary judgment, see id. at 1866, a rule we follow with particular

solicitude for pro se litigants, see Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006).

But even a pro se litigant cannot defeat a motion for summary judgment through mere

allegations or conclusory statements unsupported by facts. See Davis v. New York, 316

F.3d 93, 100 (2d Cir. 2002). Nor can Simpson compensate for his failure to challenge

defendants’ N.D.N.Y. Local R. 7.1 statement of facts—particularly after being given

notice of the consequences—by attempting to supplement the record on appeal. Cf.

Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).

       Simpson’s additional challenges also lack merit. The partial denial of defendants’

motion to dismiss under Fed. R. Civ. P. 12(b)(6), see Simpson v. Rodas, No. 10 CV-6670

(CS), 2012 WL 4354832, at *9 (S.D.N.Y. Sept. 21, 2012), did not preclude their later Rule

2
  Accordingly, we need not address the district court’s conclusion that Simpson failed to
exhaust his administrative remedies as against defendant Collins.

                                              4
56 motion for summary judgment, which followed discovery and tested whether that

process yielded sufficient evidence to create a triable issue of fact. Cf. EDP Med.

Comput. Sys. Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007) (holding that

application of res judicata requires “final judgment on the merits” (emphasis added)). Nor

are Simpson’s “mere bald assertions” regarding the substance of his claim sufficient to

render the district court’s refusal to appoint counsel an abuse of its “[b]road discretion” in

this regard, Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986); accord Carpenter v.

Republic of Chile, 610 F.3d 776, 780 (2d Cir. 2010), given its careful consideration of the

many factors governing this determination, see Decision and Order at 3–4, Simpson v.

Oakes, No. 9:12-CV-1482 (GTS/DEP) (N.D.N.Y. Jan. 27, 2014), ECF No. 126.

       We have considered Simpson’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk of Court




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