    19-1535-pr
    Lombardo v. Graham


                         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 ASUMMARY ORDER@). A PARTY CITING TO 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 20th day of April, two thousand twenty.

    PRESENT:
                DEBRA ANN LIVINGSTON,
                RAYMOND J. LOHIER, JR.,
                WILLIAM J. NARDINI,
                      Circuit Judges.
    _____________________________________

    Joseph Lombardo,

                          Plaintiff-Appellant,

                    v.                                                     19-1535-pr

    Harold D. Graham, Superintendent Auburn
    Correctional Facility, Jane Doe, Nurse Auburn
    Correctional Facility,

                          Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                         Joseph Lombardo, pro se, Sing Sing
                                                     Correctional Facility, Ossining, NY.

    FOR DEFENDANTS-APPELLEES:                        No appearance.
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Sharpe, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Joseph Lombardo, pro se and incarcerated, appeals from the district court’s sua sponte

dismissal, without prejudice, of his 42 U.S.C. § 1983 complaint for failure to state a claim pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). Lombardo sued Nurse Jane Doe

and Superintendent Harold J. Graham of the Auburn Correctional Facility for deliberate

indifference to his serious medical needs, in violation of the Eighth Amendment, alleging that Doe

delayed his medical treatment for a partially collapsed lung and broken ribs after another prisoner

assaulted him; he did not make any allegations concerning Graham. The district court provided

Lombardo an opportunity to amend, but, instead of amending, Lombardo appealed. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       As a preliminary matter, we have jurisdiction over the appeal. Although the district court

granted leave to amend, Lombardo appealed rather than amending his complaint, and the time to

amend has now passed. See Slayton v. Am. Express Co., 460 F.3d 215, 224 n.7 (2d Cir. 2006);

Festa v. Local 3 Int’l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990) (per curiam) (“[S]ince

the deadline imposed by the district court for amendment has passed, we will treat the present

appeal as having been timely filed after the dismissal by the district court became final.”).

       We review de novo a district court’s sua sponte dismissal of a complaint under 28 U.S.C.

§§ 1915(e)(2) and 1915A. See Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010); McEachin v.

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McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).         Under § 1915(e)(2)(B), the district court must

dismiss a complaint filed in forma pauperis if it determines that “the action or appeal . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

The same standard applies to prisoner complaints under § 1915A. Id. § 1915A(b).

       To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).         “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”    Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).    Pro se submissions are reviewed with “special solicitude,” and “must

be construed liberally and interpreted to raise the strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (internal quotation

marks and emphasis omitted).

  I.   Nurse Doe

       To “establish an Eighth Amendment claim arising out of inadequate medical care, a

prisoner must prove deliberate indifference to his serious medical needs.” Chance v. Armstrong,

143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and brackets omitted). Deliberate

indifference has objective and subjective components: “First, the alleged deprivation must be, in

objective terms, sufficiently serious. Second, the defendant must act with a sufficiently culpable

state of mind.”   Id. (internal quotation marks and citation omitted). To satisfy the subjective

component, a plaintiff must establish “that the charged official act[ed] or fail[ed] to act while

actually aware of a substantial risk that serious inmate harm will result.” Salahuddin v. Goord,

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467 F.3d 263, 280 (2d Cir. 2006). “[W]hile ‘mere medical malpractice’ is not tantamount to

deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate

indifference; namely, when the malpractice involves culpable recklessness, i.e., an act or a failure

to act by the prison doctor that evinces ‘a conscious disregard of a substantial risk of serious

harm.’”     Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Farmer v. Brennan,

511 U.S. 825, 839 (1994)); see Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[A] complaint that a

physician has been negligent in diagnosing or treating a medical condition does not state a valid

claim of medical mistreatment under the Eighth Amendment.”).

         In cases where a prisoner alleges a delay in medical treatment, courts examine both the

seriousness of the prisoner’s medical conditions and the harm caused by any unreasonable delay.

See Salahuddin, 467 F.3d at 280 (“[I]f the prisoner is receiving on-going treatment and the

offending conduct is an unreasonable delay or interruption in that treatment, the seriousness

inquiry ‘focus[es] on the challenged delay or interruption in treatment rather than the prisoner’s

underlying medical condition alone.’” (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.

2003))).     Although the delay in Lombardo’s medical treatment was relatively brief (28 hours), he

suffered from severe conditions (a partially collapsed lung and multiple rib fractures that required

immediate treatment), and he alleged that one of his emergency room doctors told him it was

“crazy” that the prison did not send him to the hospital for nearly 28 hours after he was injured.

Lombardo also alleged that he experienced severe pain and trouble breathing during the 28-hour

delay.     Thus, taken together, Lombardo’s allegations regarding his severe medical conditions, the

pain he experienced during the delay, and the doctor’s statement that the delay in treatment was

“crazy” are sufficient to state a claim under the objective prong.   See id.

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       However, Lombardo’s complaint fails because he did not adequately allege that Nurse Doe

acted with a sufficiently culpable mental state, i.e., culpable recklessness as opposed to mere

negligence. His minimal allegations do not indicate that the nurse was actually aware that his

injuries were so severe as to require immediate medical treatment and that she consciously

disregarded the risk of delaying such treatment.       See id.    He alleged only that Nurse Doe

examined him and wiped blood from his face and body, that he told her he could not breathe, and

that she sent him to his cell with a handful of ibuprofen.     Additional details about his physical

injuries, degree of respiratory difficulty, or his interactions with Nurse Doe would have helped

Lombardo plausibly allege that Nurse Doe was aware he was suffering from serious injuries and

deliberately denied treatment.     Although Lombardo also alleged that he complained to a

corrections officer during the night about his continued pain and difficulty breathing, he did not

sue that officer or allege that these complaints were relayed to Nurse Doe.          Moreover, in its

decision and order, the district court pointed out what Lombardo needed to plead in order to state

a claim, but Lombardo chose to appeal rather than amend.

       In sum, Lombardo failed to allege that Nurse Doe acted with a sufficiently culpable mental

state under Eighth Amendment case law.       See id.

 II.   Superintendent Graham

       The district court also did not err in dismissing Lombardo’s claim against Superintendent

Graham. We have set forth the following grounds for supervisory liability under § 1983:

       (1) the defendant participated directly in the alleged constitutional violation, (2) the
       defendant, after being informed of the violation through a report or appeal, failed
       to remedy the wrong, (3) the defendant created a policy or custom under which
       unconstitutional practices occurred, or allowed the continuance of such a policy or
       custom, (4) the defendant was grossly negligent in supervising subordinates who

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       committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
       to the rights of inmates by failing to act on information indicating that
       unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). 1

       As the district court noted, Lombardo’s complaint named Graham as a defendant but made

no reference to him in the body of the complaint. On appeal, Lombardo asserts for the first time

that Graham knew or should have known about the lack of medical services his employees

provided because inmates have filed a number of grievances and lawsuits against his medical staff,

and that his failure to intervene to protect prisoners amounted to deliberate indifference. These

generalized allegations are insufficient to show that Graham participated in the delay in

Lombardo’s medical treatment, that he was grossly negligent in supervising medical staff, that he

had created or allowed a policy of delaying treatment, or that he was aware of the delay in

Lombardo’s treatment and failed to intervene. See id. at 873–74.

       We have considered all of Lombardo’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

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




1
  Although we have observed that Iqbal may have heightened the requirements for supervisory
liability by requiring more direct personal involvement, we need not decide that issue where, as
here, the allegations are also insufficient to state a claim under Colon. See Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013).

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