     13-3749
     McCray v. County of Suffolk

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of March, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                JESSE M. FURMAN,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       DARNELL McCRAY,
14                Plaintiff-Appellant,
15
16                    -v.-                                               13-3749
17
18       COUNTY OF SUFFOLK, NEW YORK,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        A.J. BOSMAN, Bosman Law Firm,
23                                             L.L.C., Rome, New York.


                *
              Judge Jesse M. Furman, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   FOR APPELLEE:              ARLENE S. ZWILLING, for Dennis
 2                              M. Brown, Suffolk County
 3                              Attorney, Hauppauge, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Feuerstein, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Darnell McCray appeals from the judgment of the United
13   States District Court for the Eastern District of New York
14   (Feuerstein, J.), granting summary judgment in favor of
15   defendant-appellee, the County of Suffolk, New York.
16   McCray’s pro se lawsuit against the County of Suffolk, under
17   42 U.S.C. § 1983 and New York state law, alleges that the
18   County violated his constitutional rights pursuant to
19   policies and customs abrogating its responsibility to care
20   for prisoners’ medical needs. We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history, and the issues presented for review.
23
24        McCray underwent a medical screening the day after he
25   arrived at the Suffolk County Correctional Facility in May
26   2010. The screening reflected that his fingers were broken
27   and had been evaluated and splinted at a hospital prior to
28   his incarceration. The prison housed McCray in its Medical
29   Tier, and provided an x-ray, a CT scan, a physical therapy
30   evaluation, instructions to exercise, and pain relief
31   medication. McCray alleges that the prison’s medical
32   director, Dr. Vincent Geraci, referred McCray to a hand
33   surgeon, but no surgery ensued. According to McCray, the
34   prison’s failure to provide surgery caused him physical
35   pain, emotional distress, and incomplete healing of the
36   fractures.
37
38        After discovery, the County moved for summary judgment.
39   McCray then moved for leave to amend his complaint by adding
40   Dr. Geraci as a defendant, and for an order directing the
41   County to identify the individuals who signed certain
42   medical records. The district court granted the County’s
43   motion for summary judgment, holding that McCray had not
44   identified a policy or custom as required by Monell v.
45   Department of Social Services, 436 U.S. 658, 691 (1978);
46   declined to exercise supplemental jurisdiction over the
47   state law claims; denied leave to amend the complaint, on

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 1   the ground that amendment would be futile; and declined to
 2   order the disclosure of potential witnesses’ identities
 3   after the close of discovery.
 4
 5        We review de novo a district court’s grant of summary
 6   judgment. Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir.
 7   2008). Summary judgment is appropriate only if “there is no
 8   genuine dispute as to any material fact and the movant is
 9   entitled to judgment as a matter of law.” Fed R. Civ. P.
10   56(a). To establish municipal liability for
11   unconstitutional acts by municipal employees, a plaintiff
12   must show that the violation of his constitutional rights
13   was caused by a municipal policy, custom, or practice.
14   Monell, 436 U.S. at 690-91. For purposes of that
15   requirement, “[a]ctions by an individual with final
16   decision-making authority in a municipality constitute
17   official policy.” Anthony v. City of New York, 339 F.3d
18   129, 139 (2d Cir. 2003). McCray urges that the prison’s
19   failure to arrange surgery satisfies Monell’s requirement
20   due to the involvement of Dr. Geraci, who may have had final
21   decision-making authority. The summary judgment record,
22   viewed in the light most favorable to McCray, indicates that
23   Dr. Geraci referred McCray to a hand surgeon; it is silent
24   as to any other actions by Dr. Geraci. There is no record
25   support to charge the County with a policy of negligence or
26   deliberate indifference based on the affirmative and
27   salutary action of Dr. Geraci. We therefore affirm the
28   grant of summary judgment for the County.
29
30        As to McCray’s motion to amend his complaint, we
31   generally “review denial of leave to amend under an ‘abuse
32   of discretion’ standard”; however, “[w]hen the denial of
33   leave to amend is based on a legal interpretation, such as a
34   determination that amendment would be futile, a reviewing
35   court conducts a de novo review.” Hutchison v. Deutsche
36   Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). McCray
37   sought to add Dr. Geraci as a defendant in this litigation,
38   without specifying whether he sought to name Dr. Geraci in
39   his official or personal capacity. Official-capacity
40   liability would have required proof of a municipal policy or
41   custom, whereas personal liability would have required only
42   that Dr. Geraci himself caused the deprivation of a federal
43   right while acting under color of state law. See Kentucky
44   v. Graham, 473 U.S. 159, 166-67 (1985). In view of our
45   obligation to construe pro se submissions liberally, see,
46   e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
47   (2d Cir. 2006), we consider both possibilities. First, if

                                  3
 1   McCray had intended to sue Dr. Geraci in his official
 2   capacity, the absence of a relevant policy or custom would
 3   have defeated the cause of action, just as it defeated the
 4   action against the County. Second, if McCray had intended
 5   to sue Dr. Geraci in his personal capacity, the absence of
 6   any evidence other than that Dr. Geraci referred McCray to a
 7   hand surgeon would have defeated any inference that Dr.
 8   Geraci’s actions were inconsistent with any federal right.
 9   In either case, the proposed amendment would have been
10   futile, so the motion was properly denied.
11
12        Finally, as to McCray’s post-discovery motion for an
13   order directing the County to identify individuals who
14   signed his prison medical records, which we regard as a
15   motion for additional discovery, “we will review the
16   district court’s denial of additional discovery for an abuse
17   of its discretion.” First City, Tex.-Houston, N.A. v.
18   Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998). McCray
19   submitted this motion approximately nine months after the
20   close of discovery. McCray wanted to know who signed his
21   medical records because he “may need to call them as
22   witnesses.” (App. 45.) The district court denied the
23   motion on account of its untimeliness. Even giving “extra
24   leeway” to this pro se motion in complying with procedural
25   rules, Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir.
26   1993), the motion’s late timing and thin justification bring
27   the district court’s denial well within the range of
28   permissible decisions.
29
30        For the foregoing reasons, and finding no merit in
31   McCray’s other arguments, we hereby AFFIRM the judgment of
32   the district court.
33
34                              FOR THE COURT:
35                              CATHERINE O’HAGAN WOLFE, CLERK
36




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