     11-617
     Spavone v. N.Y. State Dep’t of Corr. Servs.



1                          United States Court of Appeals
2                                    FOR THE SECOND CIRCUIT
3
4                                                  August Term 2012
5
6             (Argued: September 19, 2012                            Decided: June 20, 2013)
7
8                                             No. 11-617
9                               _____________________________________
10
11                                                 STEVEN SPAVONE,
12                                                 Plaintiff-Appellee,
13
14                                                        -v.-
15
16    NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, BRIAN FISCHER,
17    Commissioner (DOCS), NICK CHALK, Temporary Release Chairman (WCF),
18              DEBORAH JOY, Director Temporary Release (DOCS),
19                           Defendants-Appellants.
20                   _____________________________________
21
22   Before:          LEVAL, KATZMANN and LIVINGSTON, Circuit Judges.
23
24         Appeal from an order of the District Court for the Southern District of New
25   York (Patterson, J.), denying Defendants’ motion for summary judgment. The
26   individual Defendants-Appellants contend they are entitled to qualified
27   immunity in connection with Plaintiff-Appellee’s claim for money damages
28   pursuant to 42 U.S.C. § 1983, a claim stemming from alleged violations of
29   Plaintiff-Appellee’s Equal Protection and Eighth Amendment rights. We hold
30   that the facts shown by Plaintiff-Appellee do not support a finding that a
31   reasonable public official would have known that the conduct challenged here
32   violated clearly established rights. The individual Defendants-Appellants are
33   therefore entitled to qualified immunity as a matter of law.
34
35   REVERSED and REMANDED.
36


37
1                                   BENJAMIN N. GUTMAN, Deputy Solicitor General
2                                   (Cecelia C. Chang, Assistant Solicitor General, on
3                                   the brief), for Eric T. Schneiderman, Attorney
4                                   General of the State of New York, New York, NY,
5                                   for Defendants-Appellants.
6
7                                   HANNAH Y.S. CHANOINE, Mayer Brown LLP, New
8                                   York, NY, for Plaintiff-Appellee.
9
10   DEBRA ANN LIVINGSTON, Circuit Judge:

11         This case concerns how the New York State Department of Correctional

12   Services1 ("DOCS") determines when an inmate receives temporary medical

13   leave from prison for the treatment of mental illness. Plaintiff-Appellee Steven

14   Spavone (“Spavone”) requested a leave of absence from prison in order to obtain

15   additional treatment for his post-traumatic stress disorder (“PTSD”). DOCS

16   officials Brian Fischer, Deborah Joy, and Nick Chalk (collectively, with DOCS,

17   “Defendants-Appellants”) denied his request. Spavone then brought suit under

18   42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C.

19   § 12101 et seq., alleging, among other things, that Defendants-Appellants’ denial

20   of his leave request violated his Fourteenth Amendment right to equal protection

21   of the law and his Eighth and Fourteenth Amendment right to be free of cruel

22   and unusual punishment. In a January 21, 2011 opinion and order, the District


           1
            We note that after this case began DOCS merged with the New York State
     Division of Parole to form the Department of Corrections and Community Supervision
     (“DOCCS”). We will refer to the Department as it was named when the underlying
     events of this case took place.

                                             2
1    Court for the Southern District of New York (Patterson, J.) denied Defendants-

2    Appellants’ motion for summary judgment.

3          Fischer, Joy, and Chalk, the individual Defendants-Appellants, argue on

4    appeal that the district court erred in rejecting their contention that they are

5    entitled to qualified immunity from Spavone’s § 1983 claims as a matter of law.

6    We agree, and now reverse the district court’s decision.2

7                                       BACKGROUND
8
9    1. Factual Background
10
11         New York, like many states, allows some of its inmates to obtain

12   temporary release from prison. Sections 851 through 861 of the New York

13   Correction Law provide for several types of temporary release. Relevant here,

14   a “leave of absence” permits an inmate to leave prison in order to visit a dying

15   relative, attend a relative’s funeral, or receive absolutely necessary medical

16   treatment. N.Y. Correct. Law § 851(6). The Correction Law specifies that a

17   medical leave of absence (“MLOA”) is available for the period of time necessary

18   for an inmate

19                to undergo surgery or to receive medical or dental
20                treatment not available in the correctional institution

           2
             Though DOCS is listed in both the case caption and Defendants-Appellants’
     notice of appeal as an additional party to the appeal, the Defendants-Appellants have
     not raised any argument here as to whether DOCS is entitled to sovereign immunity.
     Accordingly, we do not consider the district court’s denial of summary judgment insofar
     as it applies to DOCS on this interlocutory appeal.

                                         3
1                only if deemed absolutely necessary to the health
2                and well-being of the inmate and whose approval is
3                granted by the commissioner or his designated
4                representative.
5
6    Id. § 851(6)(c). Regulations promulgated by DOCS reiterate this standard. See

7    N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.3(a)(3).

8          DOCS regulations establish the procedure for obtaining temporary release.

9    See N.Y. Correct. Law § 852; N.Y. Comp. Codes R. & Regs. tit. 7, §§ 1900.1 et seq.

10   Each correctional facility with inmates that could qualify for temporary release

11   must have a three-member “temporary release committee” to review

12   applications. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.2(a). Inmates apply to

13   the committee by completing a form that states the type of temporary release

14   they seek and their reasons for applying. Id. § 1900.4(a). After an inmate

15   applies, a prison official checks the inmate’s file and interviews him or her to

16   ensure that the inmate is “statutorily or otherwise eligible for temporary

17   release.” Id. § 1900.4(b), (c). Besides meeting the standard established in § 851,

18   an inmate seeking a leave of absence typically must, among other requirements,

19   be within two years of parole eligibility and not be currently committed for

20   certain violent offenses. Id. § 1900.4(c). The inmate’s application must also

21   receive a sufficiently high score based on a point system that takes into account

22   factors such as criminal history and behavior while incarcerated. Id. § 1900.4(e).



                                             4
1    For medical leaves of absence, the Commissioner may waive these non-statutory

2    eligibility requirements. Id. § 1900.3(a)(3). But temporary release of any sort

3    is apparently rare within New York’s correctional system. In 2008, for example,

4    DOCS granted only 19 leaves for a prison population of over 60,000.

5          Mental health treatment in the New York correctional system is provided

6    by the New York State Office of Mental Health (“OMH”), a state agency charged

7    by law with providing such care. See N.Y. Correct. Law § 401. A Memorandum

8    of Understanding (“MOU”) between OMH and DOCS establishes the various

9    levels of care that OMH is obligated to offer within different DOCS facilities. At

10   some prisons, mostly maximum security, OMH provides a “satellite unit” that

11   employs a full-time psychiatric staff. Satellite units provide crisis treatment

12   programs with 24-hour observation, outpatient services, and “intermediate care

13   programs.” MOU at 2–5. Outpatient services include “individual and group

14   therapy and psychiatric services” that are “similar to mental health clinic

15   services in the community.” Id. at 4. Intermediate care programs provide

16   patients with housing separate from the general prison population “similar to

17   day treatment and residential programs which exist in the community.” Id.

18         Pursuant to the MOU, DOCS and OMH “mutually agree upon the amount

19   and level of mental health services required at each correctional facility.” Id. at

20   2. In contrast to a satellite unit, at some prisons OMH operates a “mental


                                              5
1    health unit” that staffs “[a] minimum of eight hours of psychiatric services a

2    week” and provides outpatient services, but not crisis treatment or intermediate

3    care programs. Id. at 5–6. Still other prisons afford fewer options. Id. at 6–9.

4    Finally, OMH also provides in-patient services at the Central New York

5    Psychiatric Center (“CNYPC”), a secure psychiatric hospital, for inmates

6    requiring more intensive treatment. Id. at 17–18; see also N.Y. Correct. Law §

7    402. According to the MOU, “[i]nmates are assessed to determine the level of

8    mental health services they will require and are assigned to facilities which have

9    at least the identified level of services needed.” MOU at 2.

10         Plaintiff-Appellee Spavone suffers from PTSD, which he attributes to two

11   experiences. First, Spavone traveled to Nicaragua in the 1980s to join the

12   Contra rebel forces and saw combat while fighting with them in that country’s

13   civil war. Second, Spavone worked on the scaffolding of a building across the

14   street from the World Trade Center on September 11, 2001. Credited with

15   risking his life to rescue several of his coworkers, Spavone witnessed victims of

16   the attack jump from the towers. Symptoms of Spavone’s PTSD include anxiety,

17   headaches, and vivid nightmares and flashbacks.3         Spavone takes several

18   medications to treat the symptoms of his PTSD, and he claims that his PTSD

19   greatly interferes with his daily functioning.


           3
            In addition to PTSD, Spavone has also been diagnosed as suffering from
     depression.

                                             6
1          Spavone was convicted in 2003 of one count of robbery and four counts of

2    attempted robbery in the first degree.       He received ten-year concurrent

3    sentences on all counts. From 2005 to 2007, Spavone was incarcerated at

4    Eastern Correctional Facility (“Eastern”), a maximum-security prison with a

5    mental health unit. In 2007 he was transferred to Woodbourne Correctional

6    Facility (“Woodbourne”), a medium-security prison that also contains a mental

7    health unit. Spavone was released from prison in 2011.

8          While he was at Eastern, Spavone received treatment for his PTSD from

9    a psychologist, Dr. Edward Rudder (“Rudder”), and a psychiatrist, Dr.

10   Venkateswara R. Inaganti (“Inaganti”).       Spavone’s treatment at Eastern

11   included both psychiatric medication and group and individual therapy sessions.

12   When Spavone learned that he would be transferred to Woodbourne, he

13   informed Rudder and Inaganti that he would soon be eligible for a medical leave

14   of absence and asked them to write a letter in support.4 The two sent a letter to

15   Woodbourne dated April 27, 2007 in which they “strongly recommend[ed]” that

16   Spavone obtain exposure therapy, cognitive behavioral therapy, and group

17   therapy, without specifying where such treatment could or should be provided.

18   They asserted only that these treatments, “especially if provided in a community

19   inpatient program,” would be of “great benefit” to Spavone.


           4
            Spavone apparently believed that he was ineligible for medical leave until
     within two years of his anticipated release date.

                                             7
1          Spavone was transferred in May 2007. According to him, Woodbourne did

2    not initially provide him with the same level of care he had received at Eastern.

3    Spavone’s primary therapist was at first a social worker, not a psychologist,5 and

4    Spavone claims he was forced to organize his own group therapy sessions. After

5    Spavone’s transfer to Woodbourne and in response to Spavone’s concerns about

6    his PTSD treatment there, Dr. Al Shimkunas (“Shimkunas”), CNYPC’s Chief

7    Psychologist for Outpatient Services, interviewed Spavone, reviewed his

8    diagnostic test results, and conducted a full psychological evaluation of him.

9          In August 2008 Spavone wrote to both Shimkunas and Dr. Donald Sawyer,

10   CNYPC’s Executive Director, from Woodbourne to elicit their assistance in

11   obtaining temporary release. In a letter dated September 2, 2008, Shimkunas

12   responded on behalf of both of them. Shimkunas noted that while Spavone’s

13   correspondence “implies that Central New York Psychiatric Center and Office

14   of Mental Health Staff recommend that you be given temporary release in order

15   to pursue further treatment in a residential program,” this was not a

16   recommendation that Shimkunas and Sawyer were “at liberty to make.”

17   Shimkunas continued, however, that they strongly recommended that Spavone’s

18   treatment continue and Shimkunas stated they were willing to “indicate that



          Spavone did eventually receive cognitive therapy from a psychologist while at
           5

     Woodbourne.

                                             8
1    treatment in a community residential or inpatient program [could] be of great

2    benefit” to Spavone. Shimkunas further noted that the treatment Spavone was

3    receiving at Woodbourne “has proved to be an effective treatment for [PTSD],

4    including for patients who are incarcerated.”

5          Shimkunas thereafter wrote a letter to Defendant-Appellant Joy, the

6    Director of Temporary Release Programs for DOCS, informing her that Spavone

7    had been treated by OMH staff for his PTSD since 2004, that his current

8    treatment included both psychiatric medication and cognitive behavioral

9    therapy, and that Spavone was receiving “evidence-based therapeutic

10   interventions . . . designed to reduce the intensity of his emotional distress.” The

11   letter further noted that Spavone was applying for a medical leave of absence.

12   Shimkunas explained:

13               Mr. Spavone's request for medical leave of absence in a
14               community inpatient or residential trauma treatment
15               program represents a continuation of his desire to
16               resolve the effects of his traumatic experiences.
17               Treatment effectiveness in such a program as in his
18               current therapy depends on his intrinsic motivation to
19               address painful memories which is essential for a
20               successful outcome.      Inpatient hospitalization at
21               Central New York Psychiatric Center is not indicated
22               for his degree of psychiatric disability, as he does not
23               suffer from a psychotic disorder and he is not a danger
24               to himself.
25
26   Joy responded to Shimkunas with a letter stating that a leave of absence is

27   available to seek medical treatment “not available in the correctional institution
                                              9
1    only if deemed absolutely necessary to the health and well being of the inmate.”

2    She explained that Spavone “would not appear to meet this statutory definition,”

3    but that “if and when he applied, his application [would] be evaluated.” Joy

4    concluded by stating that “[i]n the mean time, I hope that Spavone continues to

5    avail himself of mental health services available in general confinement.”

6          Spavone applied for a leave of absence directly to Defendant-Appellant and

7    then-DOCS Commissioner Fischer on September 11, 2008. After Fischer’s office

8    informed Spavone that he had to apply at the facility where he was incarcerated,

9    Spavone submitted an application to the temporary release committee at

10   Woodbourne, which was headed by Defendant-Appellant Chalk. Spavone’s

11   stated reason for seeking a leave of absence was "[t]o obtain a community based

12   residential/inpatient program to provide essential medical care that cannot be

13   provided to me while or during my incarceration for PTSD."             Spavone’s

14   application, however, did not include material from a medical provider indicating

15   that Spavone’s ongoing PTSD treatment was ineffective, nor did Spavone’s

16   application identify either the community program he proposed to attend or the

17   form of PTSD treatment currently unavailable to him but “absolutely necessary”

18   to his care. The temporary release committee denied Spavone's application on

19   the ground that his violent and recidivist history, including “the instant offense



                                             10
1    with 4 counts of robbery 1st in which you robbed the proprietor at gunpoint,”

2    meant his release posed a risk to the community.6

3          Spavone appealed the denial of medical leave to Joy, and attached to the

4    appeal his correspondence with Drs. Shimkunas, Rudder, and Inaganti, as well

5    as a letter from a residential treatment facility providing him with information

6    about its program and inviting him to apply. On November 24, 2008, Joy denied

7    the appeal, explaining:

8                After careful review and consultation with NYSDOCS
9                counsel's office there are no provisions in the temporary
10               release rules and regulations that allow a medical leave
11               of absence for mental health reasons. Therefore your
12               current application for a medical leave of absence is
13               denied based on eligibility criteria.

14   After Spavone asked for reconsideration of his appeal, Joy wrote in a letter that

15   “the requested purpose did not meet statutory criteria for MLOA.” She further

16   explained to Spavone, “MLOAs are considered for medical treatment not

17   available in the facility. Your request was for an OMH placement. You are

18   receiving OMH services at your facility and are encouraged to continue these

19   services.” Joy later explained in an affidavit that her decision was based on the

20   “understanding that all of an inmate’s mental health care needs are met in the

21   correctional facility setting through the comprehensive services provided by


           6
            Spavone maintained before the district court that the robbery and attempted
     robberies of which he was convicted were nonviolent and committed with a toy gun.

                                             11
1    OMH,” and that “[n]othing in the papers submitted in connection with plaintiff’s

2    application raised a substantial challenge to that understanding.”

3    2. Procedural History

4            Spavone filed a complaint in the Southern District of New York on

5    January 5, 2009, naming DOCS, Fischer, Joy, and Chalk as defendants.

6    Spavone sought damages under 42 U.S.C. § 1983 for alleged violations of the

7    Eighth Amendment and of the Equal Protection and Due Process Clauses of the

8    Fourteenth Amendment, as well as for alleged violations of the ADA. DOCS and

9    the individual Defendants-Appellants moved for summary judgment on June 14,

10   2010.

11           In a January 21, 2011 opinion and order, Judge Patterson denied the

12   motion for summary judgment, rejecting, inter alia, the individual Defendants-

13   Appellants’ claim that they are entitled to qualified immunity. He explained

14   that “[a] decision denying participation in the [temporary release program] on

15   the ground that the statute, N.Y. Correction Law 851(6), and the regulations do

16   not mention mental health care as distinguished from medical care . . .

17   discriminate[s] against inmates suffering from mental health issues such as

18   PTSD.” Spavone v. N.Y. State Dep’t of Corr. Servs., No. 09-cv-969, 2011 WL

19   253958, at *5 (S.D.N.Y. Jan. 21, 2011).       Judge Patterson concluded that

20   Spavone had raised three issues of material fact: (1) “whether the mental health


                                            12
1    treatment [Spavone] seeks is ‘deemed absolutely necessary to the health and

2    well-being of the inmate’ as provided in 7 NYCRR 1900.3(a)(3)”; (2) “whether the

3    present practices and policies of DOCS are being administered in accordance

4    with the purposes of Section 851 and regulations which DOCS itself adopted”;

5    and (3) “whether, under the present regulations of DOCS, MLOA is not available

6    for mental health treatment even if it is absolutely necessary to the ‘health and

7    well being’ of persons such as the Plaintiff.” Id. at *5–6.

8          Defendants-Appellants timely appealed.

9                                        DISCUSSION

10   1. Jurisdiction

11         Denials of motions for summary judgment are typically not “final

12   decisions” appealable under 28 U.S.C. § 1291. An exception exists for denials of

13   summary judgment motions premised on qualified immunity, which are

14   appealable under the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S.

15   511, 530 (1985). This is because qualified immunity entails “an immunity from

16   suit rather than a mere defense to liability; and like an absolute immunity, it is

17   effectively lost if a case is erroneously permitted to go to trial.” Id. at 526.

18          The collateral order doctrine, however, only permits appellate review of

19   a “‘claim of right separable from, and collateral to, rights asserted in the action.’”

20   Id. at 527 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546


                                              13
1    (1949)) (internal brackets omitted). For this reason, appellate courts may review

2    denials of claims of qualified immunity “only to the narrow extent they turn on

3    questions of law.” Bolmer v. Oliveira, 594 F.3d 134, 140 (2d Cir. 2010). While

4    an appellate court may reconsider a district court’s determination that an issue

5    is material, it may not reconsider the district court’s determination that an issue

6    is genuine. Id. at 140–41. The result is that we may find that defendants are

7    entitled to qualified immunity only “on stipulated facts, or on the facts that the

8    plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial

9    judge concluded the jury might find.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.

10   1996). The reasonableness of a defendant’s actions, however, remains a question

11   of law, so long as the underlying facts are undisputed. See Winfield v. Trottier,

12   710 F.3d 49, 53–54 (2d Cir. 2013).

13         The district court below found three genuine issues of fact. First, the

14   district court found a genuine issue as to whether a leave of absence was

15   “absolutely necessary to the health and well being” of Spavone. Second, it found

16   an issue as to whether DOCS’s practices and its policies concerning leaves of

17   absence were “being administered in accordance with the purposes of Section

18   851” and DOCS’s own regulations. Third, the district court found an issue as to

19   whether DOCS’s policies would ever allow a leave of absence for mental health

20   treatment, even when that treatment was absolutely necessary for the health


                                              14
1    and well being of the applicant. We must accept these findings as true for

2    purposes of this appeal.

3              For issues that do fall within our jurisdiction, we review the district

4    court’s denial of summary judgment de novo. See Amore v. Novarro, 624 F.3d

5    522, 529 (2d Cir. 2010); Bolmer, 594 F.3d at 141. Summary judgment is

6    appropriate “if the movant shows that there is no genuine dispute as to any

7    material fact and the movant is entitled to judgment as a matter of law.” Fed.

8    R. Civ. P. 56(a). The court construes all evidence, draws all inferences, and

9    resolves all ambiguities in favor of the non-moving party. See, e.g., Novarro, 624

10   F.3d at 529.

11    2. Spavone’s Constitutional Claims

12         Spavone alleges that Defendants-Appellants Fischer, Joy, and Chalk

13   violated two of his constitutional rights: his right to equal protection of the laws

14   under the Fourteenth Amendment, and his right to be free of cruel and unusual

15   punishment under the Eighth and Fourteenth Amendments.7 He argues on

16   appeal that Defendants-Appellants violated these rights through “DOCS’ policy

17   of carving out mental health treatment from the statutory safety valve for

18   necessary but unavailable medical treatment” under § 851(6). Appellee’s Br. at


           7
             Spavone’s complaint also alleged a violation of his procedural due process
     rights, but he has abandoned that claim on appeal. Spavone’s ADA claims are not
     before us on this interlocutory appeal.

                                              15
1    24. Defendants-Appellants contend on appeal that they are entitled to qualified

2    immunity.

3          Qualified immunity protects federal and state officials from both civil

4    damages and “unnecessary and burdensome discovery or trial proceedings.”

5    Crawford-El v. Britton, 523 U.S. 574, 598 (1998). It is “an affirmative defense

6    that the defendants have the burden of raising in their answer and establishing

7    at trial or on a motion for summary judgment.” Coollick v. Hughes, 699 F.3d

8    211, 219 (2d Cir. 2012) (internal quotation marks omitted). Its purpose, as we

9    have repeatedly said, is to serve the public good by shielding public officials from

10   potentially disabling threats of liability. See, e.g., Novarro, 624 F.3d at 530;

11   Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 2001); see also Malley v.

12   Briggs, 475 U.S. 335, 341 (1986). Qualified immunity therefore extends to

13   circumstances where an official’s conduct “does not violate clearly established

14   statutory or constitutional rights of which a reasonable person would have

15   known,” and applies “regardless of whether the government official’s error is a

16   mistake of law, a mistake of fact, or a mistake based on mixed questions of law

17   and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation

18   marks omitted). So long as a defendant “has an objectively reasonable belief

19   that his actions are lawful,” he “is entitled to qualified immunity.” Swartz v.

20   Insogna, 704 F.3d 105, 109 (2d Cir. 2013) (internal quotation marks omitted).


                                              16
1          Even assuming, arguendo, that on Spavone’s version of the facts a

2    reasonable jury could find a violation of his Fourteenth or Eighth Amendment

3    rights, we conclude that the individual Defendants-Appellants are entitled to

4    qualified immunity. See Pearson, 555 U.S. at 236. No reasonable jury could

5    conclude, on the record here, that it would have been objectively unreasonable

6    for a public official in the position of these Defendants-Appellants to believe that

7    he or she was acting in a manner consistent with Spavone’s rights to equal

8    protection and to be free of cruel and unusual punishment. We therefore hold

9    that individual Defendants-Appellants have qualified immunity from Spavone’s

10   constitutional claims.

11         A. Personal Involvement of Nick Chalk

12         At the start, and even before reaching the merits of Spavone’s claims, we

13   first conclude that there is no genuine issue as to whether Defendant-Appellant

14   Nick Chalk, the chairman of the temporary release committee at Woodbourne,

15   was personally involved in the alleged violations of Spavone’s constitutional

16   rights. “It is well settled in this Circuit that personal involvement of defendants

17   in alleged constitutional deprivations is a prerequisite to an award of damages

18   under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal

19   quotation marks omitted). On appeal, Spavone premises his equal protection

20   and cruel and unusual punishment claims on DOCS’s alleged policy of denying


                                              17
1    leaves of absence for absolutely necessary mental health treatment while

2    affording such leaves for the provision of other absolutely necessary medical

3    care. Chalk, however, denied Spavone’s application due to Spavone’s criminal

4    history. It was only when Spavone appealed the committee’s decision to Deborah

5    Joy that he was told “there are no provisions in the temporary release rules and

6    regulations that allow a medical leave of absence for mental health reasons.”

7          We recognize (consistent with the district court’s finding that a genuine

8    issue of fact exists as to whether DOCS’s present practices and policies “are

9    being administered in accordance with the purposes of Section 851 and [DOCS’s]

10   regulations”) that there may be a factual dispute as to whether Chalk followed

11   proper procedure in evaluating Spavone’s application for medical leave.

12   Spavone, however, has not alleged before this Court that any failure by DOCS

13   to comply with its own regulations was what denied him equal protection of the

14   law or subjected him to cruel and unusual punishment. Rather, he focuses solely

15   on the alleged policy of denying all leaves of absence for mental health

16   treatment. Since there is no evidence that Chalk had any involvement in the

17   promulgation or application of such a policy, he is entitled to qualified

18   immunity.8


           We also have doubts about whether Commissioner Fischer had sufficient
           8

     personal involvement in the alleged violation of Spavone’s rights. While Fischer, as
     Commissioner of DOCS, was charged with promulgating the regulations that govern

                                              18
1              B. Equal Protection

2          We next conclude that, even accepting Spavone’s version of the facts,

3    Spavone has failed to raise a genuine issue as to whether a public official in the

4    position of Fischer or Joy could reasonably have understood that his or her

5    actions were consistent with Spavone’s equal protection rights. Simply put, a

6    reasonable jury could not deem such an understanding objectively unreasonable

7    on the sparse record before this Court. In such circumstances, Fischer and Joy

8    are entitled to the protection of qualified immunity. See Farid v. Ellen, 593 F.3d

9    233, 244 (2d Cir. 2010).

10         When a party challenges a government classification that does not involve

11   a suspect class or burden fundamental rights, courts apply rational basis

12   scrutiny. The classification will be constitutional so long as “there is any

13   reasonably conceivable state of facts that could provide a rational basis for the

14   classification.” Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 219 (2d Cir. 2012)

15   (citing FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)). Challenged

16   classifications are entitled to “a strong presumption of validity.”               Beach



     temporary release, see N.Y. Correct. Law § 852, there is no evidence in the record that
     he was aware that Joy allegedly interpreted those regulations to not allow leaves of
     absence for mental health treatment. Still, out of an abundance of caution we decline
     to hold that there is no genuine issue as to whether Fischer was personally involved
     in the alleged constitutional violations. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
     1997) (listing the various situations in which a supervisory official may be liable for
     constitutional violations).

                                                19
1    Commc’ns, 508 U.S. at 314–15. The party attacking a classification’s rationality

2    bears the burden “to negative every conceivable basis which might support it.”

3    Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080–81 (2012) (internal citation

4    and quotation marks omitted).

5          Spavone does not contend that a suspect group or fundamental right is

6    involved in this case. Still, he urges us to apply the standard of review used in

7    Turner v. Safley, 482 U.S. 78 (1987), which would invalidate any prison

8    regulation “where the logical connection between the regulation and the asserted

9    goal is so remote as to render the policy arbitrary or irrational,” id. at 89–91. We

10   disagree that Turner applies to this case. Turner involved prison regulations

11   that were claimed to infringe upon both the fundamental right to marry and

12   First Amendment freedom of speech. Id. at 83. The standard adopted by the

13   Supreme Court was a compromise between the strict scrutiny standard that

14   usually would apply to such constitutional claims and the “inordinately difficult

15   undertaking” of running a prison. Id. at 84–85; see also Shakur v. Selsky, 391

16   F.3d 106 (2d Cir. 2004) (applying Turner to freedom of speech claim); Benjamin

17   v. Coughlin, 905 F.2d 571 (2d Cir. 1990) (applying Turner to free exercise and

18   religious discrimination claims). We thus join the Seventh Circuit in holding

19   that Turner does not govern equal protection claims brought by prisoners that

20   do not involve suspect groups or fundamental rights. See Hatch v. Sharp, 919


                                              20
1    F.2d 1266, 1268–69 (7th Cir. 1990).           This is consistent with our previous

2    treatment of such claims. See Benjamin v. Jacobson, 172 F.3d 144, 165 (2d Cir.

3    1999) (en banc) (applying traditional rational basis review).

4           The district court determined that a genuine factual dispute exists as to

5    whether DOCS’s policies would ever permit a leave of absence for mental health

6    treatment. Accepting this finding, as we must, the question on rational basis

7    review at the summary judgment stage is clear: whether a reasonable jury could

8    conclude that no reasonably conceivable set of facts could have provided a

9    rational basis for DOCS to deny all medical leaves of absence for the treatment

10   of mental illness, while affording such leaves (albeit in narrow circumstances)

11   for other medical care. Fischer and Joy argue that at the time they acted on

12   Spavone’s application for medical leave, it was reasonably conceivable that all

13   “absolutely necessary” mental health treatment was available within the New

14   York correctional system pursuant to the MOU between OMH and DOCS.9 They

15   assert that this, in turn, permitted a rational distinction to be drawn between

           9
             Fischer and Joy properly focus on the state of affairs existing at the time they
     acted on Spavone’s application for medical leave. Spavone’s equal protection claim
     seeks only money damages for a government classification that no longer applies to
     him. In the more typical equal protection case, where a party challenges a
     classification that applies to him or her, a court will ask what currently reasonably
     conceivable facts could provide a rational basis for the classification. See, e.g., United
     States v. Thomas, 628 F.3d 64, 71 (2d Cir. 2010). In rational basis challenges to past
     classifications, however, such as the one here, we ask what facts were reasonably
     conceivable at the time of the classification. See, e.g., Cobb v. Pozzi, 363 F.3d 89, 110
     (2d Cir. 2004).

                                                21
1    treatment for mental illness and other types of medical treatment not available

2    in the prison system. Spavone contests this assertion.

3          We conclude that this is a question we need not reach. For even assuming,

4    arguendo, that New York’s alleged distinction between medical leave for physical

5    ailments and mental illness could fail to survive even “highly deferential”

6    rational basis review, Hayden v. Paterson, 594 F.3d 150, 170 (2d Cir. 2010), it

7    is clear that Spavone has not raised an issue as to whether a public official in

8    Fischer’s or Joy’s position could reasonably have believed that such a distinction

9    passed constitutional muster. Even on Spavone’s version of the facts, the

10   arrangements between DOCS and OMH set forth in the MOU provided a basis

11   for concluding that basic mental health treatment—including even residential

12   programs (albeit secure ones) of the sort Spavone sought—was available within

13   the correctional system. And Spavone—who conducted no discovery into how the

14   MOU operates in practice—has not shown that either he or any other inmate

15   presented Fischer or Joy with reason to believe that necessary mental health

16   care was unavailable at any time, with regard to any inmate.

17         The district court found that a genuine issue exists as to whether the

18   treatment sought by Spavone was, in fact, absolutely necessary to his health and

19   well being, a finding that binds us here. This factual issue, however, does not

20   provide a sufficient basis on which a jury could conclude that Fischer and Joy


                                             22
1    could not reasonably have believed that DOCS’s alleged policy had a rational

2    basis. Even if Spavone was in need of absolutely necessary medical care, the

3    record is clear that neither Fischer nor Joy had reason to conclude that such care

4    was not available to him in prison. While Spavone stated in his application for

5    medical leave that such leave was “to provide essential medical care that cannot

6    be provided to me while or during my incarceration,” he offered little to no

7    information as to the nature of this care or his basis for deeming it essential.

8    Moreover, none of the doctors who had treated or seen Spavone in prison (or any

9    other doctors, for that matter) corroborated his claim that treatment outside

10   prison was required. Indeed, Dr. Shimkunas affirmed in the correspondence

11   submitted to Joy (and in response to Spavone’s suggestion that he was unlikely

12   to receive effective treatment while incarcerated) that the therapy being

13   provided to Spavone at Woodbourne “has proved to be an effective treatment for

14   [PTSD], including for patients who are incarcerated.”

15         Simply put, the record reveals no basis on which to conclude that Fischer

16   and Joy could not reasonably have believed, as Joy has affirmed, that the mental

17   health needs of DOCS inmates were being met “in the correctional facility

18   setting through the comprehensive services provided by OMH.” This conclusion

19   means that a reasonable public official in the position of Fischer or Joy could

20   reasonably have believed there was a rational basis for distinguishing between


                                             23
1    leaves of absence for the treatment of mental illness as opposed to other sorts of

2    illness. And this conclusion, in turn, entitles Fischer and Joy to qualified

3    immunity.

4          c. Eighth Amendment

5           A similar analysis governs Spavone’s Eighth Amendment claim. The

6    Eighth Amendment forbids “deliberate indifference to serious medical needs of

7    prisoners,” Estelle v. Gamble, 429 U.S. 97, 104 (1976), which includes needs for

8    mental health care, see Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989).

9    A deliberate indifference claim contains two requirements.             The first

10   requirement is objective: “the alleged deprivation of adequate medical care must

11   be ‘sufficiently serious.’” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)

12   (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The second requirement

13   is subjective: the charged officials must be subjectively reckless in their denial

14   of medical care. Id. at 280. This means “that the charged official [must] act or

15   fail to act while actually aware of a substantial risk that serious inmate harm

16   will result.” Id. (emphasis added). Officials need only be aware of the risk of

17   harm, not intend harm. Id. And awareness may be proven “from the very fact

18   that the risk was obvious.” Farmer, 511 U.S. at 842.

19         Spavone’s version of the facts raises no genuine issue as to this second,

20   subjective element, because there is no evidence that Fischer or Joy thought that


                                             24
1    denying Spavone’s request for a leave of absence would cause him serious harm.

2    Though Spavone stated in his application that he was seeking “essential medical

3    care,” he never stated what that care was. Moreover, the letters accompanying

4    Spavone’s application did not suggest that he would be seriously harmed if not

5    afforded a medical leave. Based on these letters, Joy had no reason to doubt that

6    Spavone was receiving effective treatment at Woodbourne, much less to think

7    that he would face serious harm if not granted access to outside mental health

8    treatment. Fischer, whose only interaction with Spavone was to instruct Joy to

9    inform Spavone that he had to apply for a leave of absence at the facility where

10   he was incarcerated, would have had even less reason to know of any risk of

11   harm. Nor did the materials Spavone sent to Fischer suggest a more obvious

12   risk of harm to Spavone than did the materials Spavone sent to Joy.

13         The district court’s determination that a genuine issue exists as to

14   whether a leave of absence is “not available for mental health treatment even if

15   it is absolutely necessary to the ‘health and well being’” of the inmate does not

16   significantly change this analysis. Spavone argues that “Ms. Joy’s apparent

17   unwillingness to make an individualized determination in light of the policy”

18   renders “her awareness of risk . . . a proper jury question.” Appellee’s Br. at 33.

19   But there is no evidence that Fischer or Joy had actual knowledge that

20   restricting leaves of absence for mental health treatment would cause serious


                                             25
1    harm to inmates, nor is there a basis on which to conclude that the risk of harm

2    was both substantial and obvious.

3          At any rate, we need not decide whether implementing a policy that

4    categorically distinguishes between leaves of absence for mental illness and for

5    other health-related needs might, on a different record, pose a risk of harm

6    sufficiently obvious as to establish a defendant’s subjective awareness of it. For

7    on the record here, Spavone has failed to raise a genuine issue that Fischer or

8    Joy knew that such a policy would cause him serious harm, much less harm so

9    serious that it would be objectively unreasonable for them to believe that the

10   policy was consistent with Spavone’s right to be free of cruel and unusual

11   punishment. This entitles Fischer and Joy to qualified immunity. See McKenna

12   v. Wright, 386 F.3d 432, 437 (2d Cir. 2004).

13                                   CONCLUSION

14         For the foregoing reasons, we reverse the judgment of the district court,

15   direct dismissal of the § 1983 claims against the individual Defendants-

16   Appellants, and remand for further proceedings.

17

18




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