07-4735-pr
Chavis v. Ferris
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23 rd day of December, two thousand nine.

PRESENT:         RALPH K. WINTER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                          Circuit Judges.
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GEORGE M. CHAVIS,

                                         Plaintiff-Appellant,
                           v.                                               No. 07-4735-pr

THOMAS FERRIS, JAMES WAITE, RICHARD
DONAHUE, PAUL TITUS,

                                          Defendants-Appellees.*
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FOR APPELLANT:                                    George M. Chavis, pro se, Elmira, New York.

FOR APPELLEES:                                    Andrew M. Cuomo, Attorney General of the State
                                                  of New York; Barbara D. Underwood, Solicitor


           *
               The Clerk of the Court is directed to amend the official caption to read as shown
above.
                                           General; Andrea Oser, Deputy Solicitor General;
                                           Andrew B. Ayers, Assistant Solicitor General,
                                           Albany, New York.

       Appeal from the United States District Court for the Western District of New York

(Jeremiah J. McCarthy, Magistrate Judge2 ).

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

DECREED that the district court’s September 28, 2007 judgment is AFFIRMED.

       New York State prisoner George M. Chavis appeals pro se from a decision of the

district court granting defendants summary judgment on Chavis’s § 1983 claims alleging

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

First Amendment retaliation, and violation of his due process rights. We review a district

court’s ruling on summary judgment de novo, see Dillon v. Morano, 497 F.3d 247, 251 (2d

Cir. 2007), and we will affirm only if the record evidence, construed in the light most

favorable to Chavis, shows no genuine issue of material fact and defendants’ entitlement to

judgment as a matter of law, see Fed. R. Civ. P. 56(c); White River Amusement Pub, Inc. v.

Town of Hartford, 481 F.3d 163, 167 (2d Cir. 2007). In applying this standard, we assume

the parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       1.     Deliberate Indifference

       To establish deliberate indifference to his serious medical needs, Chavis was required



       2
        The parties consented to have this case heard by a magistrate judge pursuant to 28
U.S.C. § 636(c).

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to adduce evidence of (1) a medical need constituting “a condition of urgency” that might

result in “death, degeneration, or extreme pain,” and (2) defendant’s knowledge and

disregard of “an excessive risk to [Chavis’s] health or safety.” Johnson v. Wright, 412 F.3d

398, 403 (2d Cir. 2005) (internal quotation marks omitted). Assuming arguendo that

Chavis’s toe surgeries satisfy the former requirement, he failed to present evidence

permitting a finding in his favor on the latter. It is undisputed that defendant Ferris is not a

medical professional, and no other evidence indicates his personal knowledge of Chavis’s

medical needs. To the contrary, Ferris’s only knowledge was that – according to medical

staff – Chavis did not need the special footwear he demanded. As Chavis cites no evidence

to the contrary, his challenge to the award of summary judgment on his Eighth Amendment

claim is without merit.

       2.     First Amendment Retaliation

       To establish a prima facie case of First Amendment retaliation, Chavis must

demonstrate “(1) that the speech or conduct at issue was protected, (2) that the defendant

took adverse action against [him], and (3) that there was a causal connection between the

protected speech and the adverse action.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.

2003) (internal quotation marks omitted). Chavis submits that the district court erred in

concluding that his claims failed at the first step of this analysis because the record shows

that defendants’ challenged actions followed his references to his right to seek judicial relief.

In fact, the record clearly demonstrates Chavis’s violation of a number of prison rules that

independently supported initiating the challenged disciplinary proceedings. See id. at 287-

                                               3
88. For that reason, the district court appropriately awarded defendants summary judgment

on the First Amendment retaliation claims. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.

1994).

         3.     Due Process

         Chavis’s contention that the district court erred in failing to address his claim that

defendant Donahue violated his due process rights is without merit. Chavis’s complaint

alleged that defendant Waite violated his due process rights, but attributed no such

wrongdoing to Donahue. As Chavis never sought leave to amend the complaint, the district

court’s refusal to consider his due process claim against Donahue, raised for the first time

on summary judgment, was not an abuse of discretion. See Greenidge v. Allstate Ins. Co.,

446 F.3d 356, 361 (2d Cir. 2006) (“[A] district court does not abuse its discretion when it

fails to grant leave to amend a complaint without being asked to do so.”).

         Any argument that the district court erred in granting Waite summary judgment on the

due process claim that was stated in Chavis’s complaint is similarly meritless. Although

Chavis argues that he was entitled to separate resolution of two administrative appeals

challenging disciplinary decisions, state statutes and regulations governing prison discipline

create cognizable liberty interests only in narrow circumstances. See Acre v. Walker, 139

F.3d 329, 334 (2d Cir. 1998) (“[T]he inmate must establish that his confinement or restraint

(1) creates an atypical and significant hardship . . . in relation to the ordinary incidents of

prison life, and (2) that the state has granted its inmates, by regulation or by statute, a

protected liberty interest in remaining free from that confinement or restraint.” (internal

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quotation marks and citations omitted)). Even assuming that Chavis’s 60 days of “keeplock”

time would satisfy the first prong of this test, see Hanrahan v. Doling, 331 F.3d 93, 97 (2d

Cir. 2003) (noting that “[t]he length of disciplinary confinement is one of the guiding

factors” in the hardship determination), Chavis does not show how the resolution of his two

appeals by a single written decision violated any rule governing prison disciplinary

proceedings, or otherwise suggest how such resolution rendered the process he was afforded

insufficient. On this record, the district court properly granted summary judgment in favor

of Waite.

       4.     Motion for Default Judgment

       As defendants timely filed and served their brief and appendix, Chavis’s pending

motion for default judgment is DENIED.

       5.     Conclusion

       We have considered Chavis’s remaining arguments and conclude that they are without

merit. Accordingly, the district court’s judgment is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court


                                   By:




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