     13-548-pr
     Phillips v. Wright

                          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 17th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9
10                                       Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JASON PHILLIPS,
14
15                    Plaintiff-Appellant,
16
17                    -v.-                                              No. 13-548-pr
18
19       LESTER WRIGHT, DOCTOR, DEPUTY
20       COMMISSIONER AND CHIEF MEDICAL
21       OFFICER, TIMOTHY WHALEN, CARL
22       KOENIGSMANN, DOCTOR,
23
24                Defendants-Appellees.
25       - - - - - - - - - - - - - - - - - - - -X
26



                                                  1
 1   FOR PLAINTIFF-APPELLANT:    NICHOLAS MINDICINO, Stoll,
 2                               Glickman and Bellina LLP,
 3                               Brooklyn, NY.
 4
 5   FOR DEFENDANTS-APPELLEES:   MARTIN A. HOTVET, Assistant
 6                               Solicitor General (Barbara D.
 7                               Underwood, Solicitor General &
 8                               Andrea Oser, Deputy Solicitor
 9                               General, on the brief), for Eric
10                               T. Schneiderman, Attorney
11                               General of the State of New
12                               York.
13
14        Appeal from a judgment of the United States District
15   Court for the Northern District of New York (Suddaby, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21       Jason Phillips appeals a judgment dismissing his claim

22   against prison medical administrators for deliberate

23   indifference to serious medical need.   We assume the

24   parties’ familiarity with the underlying facts, the

25   procedural history, and the issues on appeal.

26       The district court concluded that summary judgment was

27   appropriate because (1) “no rational fact finder could

28   conclude that Defendants acted with a sufficiently culpable

29   mental state to be liable under the Eighth Amendment”; and

30   (2) “in any event, based on the current record, Defendants

31   are protected from liability as a matter of law by the

32   doctrine of qualified immunity.”   App. 26.   We affirm on the

33   basis of qualified immunity.



                                    2
 1       We review de novo a grant of summary judgment, drawing

 2   all reasonable inferences in the non-moving party’s favor.

 3   See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).

 4   Summary judgment is appropriate if the record shows that

 5   “there is no genuine dispute as to any material fact and the

 6   movant is entitled to judgment as a matter of law.”    Fed. R.

 7   Civ. P. 56(a).   A genuine dispute of material fact exists

 8   only “where the evidence is such that a reasonable jury

 9   could decide in the non-movant’s favor.”    Beyer v. Cnty. of

10   Nassau, 524 F.3d 160, 163 (2d Cir. 2008).

11       “Public officials enjoy qualified immunity from suit

12   for damages under 42 U.S.C. § 1983 for acts undertaken in

13   their official capacity, unless their conduct violates

14   clearly established constitutional rights of which an

15   objectively reasonable official would have known.”    Harhay

16   v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d

17   Cir. 2003).   “The issues on qualified immunity are: (1)

18   whether plaintiff has shown facts making out violation of a

19   constitutional right; (2) if so, whether that right was

20   clearly established; and (3) even if the right was clearly

21   established, whether it was objectively reasonable for the

22   [official] to believe the conduct at issue was lawful.”

23   Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.

24   2013) (internal quotation marks omitted).

                                   3
 1       Phillips relies on Brock v. Wright, 315 F.3d 158 (2d

 2   Cir. 2003) and Johnson v. Wright, 412 F.3d 398 (2d Cir.

 3   2005), but neither case “clearly established” a

 4   constitutional right implicated here.   Brock and Johnson

 5   involved genuine disputes over whether administrators

 6   rigidly applied prison policy to deny recommended treatment

 7   for [i] a potentially debilitating disease (hepatitis C in

 8   Johnson), and [ii] a condition known to cause chronic pain

 9   (a keloid in Brock).   See Johnson, 412 F.3d at 406 (“[W]e

10   believe a jury could find that the defendants acted with

11   deliberate indifference by reflexively relying on the

12   medical soundness of the Guideline’s substance abuse policy

13   when they had been put on notice that the medically

14   appropriate decision could be, instead, to depart from the

15   Guidelines . . . .” (emphasis added)); Brock, 315 F.3d at

16   166 (noting that facility physician and administrator “cited

17   the policy as the reason for their actions” and concluding

18   that “a jury could well find that the policy was intended to

19   bar the treatment . . . for purposes of alleviating

20   moderate, but persistently chronic, pain” (emphasis added)).

21       Here, the medical administrators evaluating, and

22   ultimately deferring or denying, Phillips’ surgical

23   referrals had only the following facts: (1) the existence of


                                   4
 1   a “lipoma,” which they knew to be a generally benign and

 2   painless cyst, (2) the location of the cyst on Phillips’

 3   back, (3) varying descriptions of its size, and (4)

 4   Phillips’ subjective claims of pain.   The correctional

 5   policy listed a lipoma as a condition for which treatment is

 6   “prima faci[e] medically unnecessary,” but that phrasing is

 7   the opposite of final or conclusory.   Moreover, the

 8   administrators here testified that the policy’s exception

 9   for “collateral symptoms” would have accommodated abnormal

10   pain or atypical growth.   Compare App. 233 (Dr. Koenigsmann

11   deposition) (citing as acceptable reasons for surgery: (1)

12   “a mechanical reason for the person to be having discomfort

13   from the lesion,” and (2) an “interim change in the lesion

14   in some way, consistency, size, growth, that I felt was

15   suspicious or not in keeping with a lipoma”) with Brock, 315

16   F.3d at 167 (“A jury could also conclude, based on the

17   admissions of the defendants and other evidence, that [the

18   facility physician] refused to appeal [the administrator’s]

19   denial of . . . treatment because he reasonably believed

20   that chronic pain of the type Brock alleged he was suffering

21   was not a collateral symptom within the meaning of the

22   [Department of Correctional Services] policy.”).

23       Brock and Johnson would not have put defendants on

24   clear notice that denying Phillips surgery, on the basis of
                                   5
1   the referrals in front of them, constituted deliberate

2   indifference to medical need under the Eighth Amendment.

3       We have considered all of Phillips’ remaining arguments

4   and conclude that they are without merit.   The judgment of

5   the district court is hereby affirmed.

6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK




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