08-4612-pr
Jones v. Lamont


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

R ULINGS BY SUM M ARY ORD ER DO NO T HAVE PRECEDENTIAL EFFECT . C ITATIO N TO A SU M M ARY O RD ER FILED O N O R AFTER
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VERN ED BY F ED ERAL R U LE O F A PPELLATE P RO CED U RE 32.1 AND THIS COU RT ’S
L O CAL R U LE 32.1.1. W HEN CITING A SUM M ARY ORD ER IN A D OCU M ENT FILED W ITH THIS COU RT , A PARTY M U ST CITE
EITHER TH E F ED ERAL A PPEN D IX O R AN ELECTRO N IC D ATABASE ( W ITH TH E N O TATIO N “ SU M M ARY O RD ER ”). A PARTY
CITIN G A SU M M ARY O RD ER M U ST SERVE A CO PY O F IT ON AN Y PARTY N O T REPRESENTED B Y CO U N SEL .



       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 27th day
of May, two thousand ten.

PRESENT:
            DEBRA ANN LIVINGSTON,
                        Circuit Judge,*
            KIMBA M. WOOD,
                        District Judge.**
_______________________________________________

Charles St. Clair Jones,

                                      Plaintiff-Appellant,
                   v.                                                                 No. 08-4612-pr

Warden Wayne A. Lamont, Mr. Ronald Williams, Medical Staff,
Mr. Nealum, Medical Staff - Indian Women, Captain Donovan,
Captain Camacho,

                                      Defendants-Appellees.

______________________________________________



         *
         The Honorable Rosemary S. Pooler, originally assigned to this panel, did not participate
in the consideration of this appeal. The remaining two members of the panel, who are in
agreement, have determined this matter. See Second Circuit Internal Operating Procedure E(b);
28 U.S.C. 46(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1999).
         **
          The Honorable Kimba M. Wood of the United States District Court for the Southern
District of New York, sitting by designation.
For Appellant:                                        CHARLES ST. CLAIR JONES, pro
                                                      se, Bronx, N.Y.

For Appellees:                                        NORMAN CORENTHAL, Assistant
                                                      Corporation Counsel, City of New
                                                      York Law Department, New York,
                                                      N.Y.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Kaplan, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court be AFFIRMED.

       Plaintiff-appellant Charles St. Clair Jones appeals pro se from a decision of the district

court granting defendants summary judgment on Jones’s 42 U.S.C. § 1983 claims alleging

deliberate indifference to his serious medical needs in violation of the Eighth Amendment. We

assume the parties’ familiarity with the facts, procedural history of the case, and issues on appeal.

       As an initial matter, due to Jones’s failure on appeal to address his claims against

defendants Warden Wayne A. Lamont, Ms. Nealum, Captain Donovan, and Captain Camacho,

Jones has abandoned these claims. See Pabon v. Wright, 459 F.3d 241, 247 (2d Cir. 2006).

Accordingly, we affirm the district court’s judgment with respect to Jones’s claims against these

defendants and proceed to the merits only with respect to the claims against defendants Brown

and Williams.

       We review the grant of summary judgment de novo, and ask whether the district court

properly concluded that there were no genuine issues of material fact and that the moving party

was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d

292, 300 (2d Cir. 2003). In determining whether there are genuine issues of material fact, we



                                                 2
resolve any ambiguities and draw all permissible factual inferences in favor of the non-movant.

See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). Despite this deference, a non-movant

cannot defeat a motion for summary judgment merely through conclusory statements or

allegations. See Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). The standard of review is

the same in reviewing an order granting an unopposed motion for summary judgment. See Vt.

Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004). In deciding an

unopposed summary judgment motion, “the district court must still assess whether the moving

party ha[s] fulfilled its burden of demonstrating that there is no genuine issue of material fact and

its entitlement to judgment as a matter of law.” Id.

       Here, a review of the materials submitted by the defendants indicates that they have met

their burden of showing that no genuine issue of material fact remains in the case. To

substantiate an Eighth Amendment claim for medical indifference, a plaintiff must prove that the

defendant was deliberately indifferent to a serious medical need. Farmer v. Brennen, 511 U.S.

825, 834-35 (1994). Deliberate indifference has two necessary components, one objective and

the other subjective. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Objectively, the

deprivation must be “sufficiently serious,” creating a risk of “death, degeneration, or extreme

pain.” Id. (internal quotation marks omitted). Subjectively, the official must have the equivalent

of a criminally reckless state of mind. Id. This mental state requires that the charged official “act

or fail to act while actually aware of a substantial risk that serious inmate harm will result.”

Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). The official “must be subjectively

aware that his conduct creates” a substantial risk of harm to the inmate, see id. at 281, although

“evidence that the risk was obvious or otherwise must have been known to a defendant is


                                                  3
sufficient to permit a jury to conclude that the defendant was actually aware of it.” Brock v.

Wright, 315 F.3d 158, 164 (2d Cir. 2003). On the record before us, there is no evidence that the

defendants were aware that Jones was resistant to Norvir.1 Jones’s medical records reveal that

Dr. Brown did not prescribe Norvir until November 2004, six months after Jones’s arrival at

Rikers Island, and that Jones “[a]greed to try” the medication. Without any evidence of

subjective awareness on the part of defendants, Jones cannot sustain a medical indifference

claim.

         For the reasons stated above, the judgment of the district court is AFFIRMED in its

entirety.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




         1
        We note that defendants in their letter brief to this Court, as well as in their motion for
summary judgment in the court below, rely in part for this point on a letter from Jones’s medical
providers in the New York State Department of Correctional Services allegedly showing that
Jones had no allergy to Norvir. This Court has been unable to locate this document in the
materials submitted either here or below. We analyze the motion for summary judgment on the
strength of the record as it appears before us, and thus exclude the alleged letter from
consideration.

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