    16-1250-cv
    Moore v. Kwan


                          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 16th day of March, two thousand seventeen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                ROSEMARY S. POOLER,
                GERARD E. LYNCH,
                      Circuit Judges.
    ___________________________________________

    Taurice Moore,

                            Plaintiff-Appellant,

                     v.                                                       16-1250

    PA Kwan, In her official and individual capacity,
    Sergeant Romaine, In his official and individual
    capacity, Correctional Officer Tamika Hill, In her
    individual and official capacity, Medical Director
    Genovese, In her official and individual capacity,
    Correctional Officer Cajigas, In his individual and
    official capacity,

                            Defendants-Appellees.1

    ___________________________________________


    1
        The Clerk of Court is instructed to amend the caption to the above.
FOR PLAINTIFF-APPELLANT:                          Taurice Moore, pro se, Ossining, NY.

FOR DEFENDANTS-APPELLEES:                          David Lawrence III, Assistant Solicitor
                                                   General, New York State Office of the Attorney
                                                   General, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Broderick, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Taurice Moore, proceeding pro se, sued corrections officers and medical staff at

Sing Sing Correctional Facility (“Sing Sing”) under 42 U.S.C. § 1983 alleging deliberate

indifference to his serious medical needs and unsafe conditions of confinement in violation of the

Eighth Amendment. Moore alleged that, although he advised the medical staff that he suffered

from a seizure disorder, he was not issued a bunk bed pass directing that he should be assigned to a

bottom bunk. He was assigned to a top bunk, from which he fell after suffering a seizure. Moore

also alleged that, notwithstanding his seizure disorder, he was assigned to a work detail that

included the use of a ladder, from which he also fell. The district court granted summary

judgment in favor of Appellees, and Moore appeals. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo a district court’s grant of summary judgment, with the view that

summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez,

702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). However, reliance upon

conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion.

See Fed R. Civ. P. 56(e); Yin Jing Gan v. City of New York, 996 F.2d 522, 532-33 (2d Cir. 1993).
We review denials of leave to amend for abuse of discretion. Anderson News, L.L.C. v. Am.

Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012).

       I.      Deliberate Indifference Claim

       “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). “[N]egligence,

even if it constitutes medical malpractice, does not, without more, engender a constitutional

claim.” Id. at 703. 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. at 702 (internal quotation marks and citation

omitted). To satisfy the subjective component, a plaintiff must establish the equivalent of

criminal recklessness, i.e., “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, 467 F.3d 263,

280 (2d Cir. 2006).

       Here, Moore failed to establish the subjective component of a deliberate indifference claim

because he did not present evidence to show that the medical staff’s failure to issue a bunk bed pass

amounted to recklessness. Although we conclude that there was a genuine dispute of fact as to

whether Moore told physician assistant Pokum Kwan about his seizure disorder when he first

arrived at Sing Sing, there is no dispute that Kwan’s actions, even assuming that Moore intimated

his disorder to Kwan as he claims to have done, did not rise to the level of recklessness. Kwan’s

actions were, at most, negligent. “Whether a course of treatment was the product of sound


                                                  3
medical judgment, negligence, or deliberate indifference depends on the facts of the case.”

Chance, 143 F.3d at 703. Moore testified that he told Kwan of his seizures but did not testify that

he told her he still suffered from seizures despite medication or that he specifically requested a

lower bunk pass from Kwan. Thus, he failed to offer evidence that Kwan knew of a substantial

risk that he would suffer a seizure despite being on anti-seizure medication or to establish that she

was deliberately indifferent. 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.”).

        II.      Conditions of Confinement Claim

        To state an unsafe conditions of confinement claim, “the plaintiff must demonstrate that he

is incarcerated under conditions posing a substantial risk of serious harm. . . . [and] that the

defendant prison officials possessed sufficient culpable intent.” Hayes v. NYC Dep’t of Corr., 84

F.3d 614, 620 (2d Cir. 1996). A prison official possesses “culpable intent if he has knowledge

that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take

reasonable measures to abate the harm.” Id.

        Moore has failed to establish either element. First, the summary judgment evidence

showed that Moore’s use of the step-ladder did not pose a substantial risk of serious harm to him.

The ladder required no safety equipment to use and no inmate, including Moore, had previously

fallen off the ladder. And the ladder was found to be in good, working condition after the fall.

Further, Moore had no contusions or palpable tenderness, and x-rays revealed that he sustained no

injuries as a result of the fall.


                                                  4
       Second, the officers who supervised Moore at work did not possess the requisite culpable

mental state. The summary judgment evidence showed that they were unaware of any work

limitations caused by Moore’s seizure disorder and that Moore did not have a “permit” outlining

any work restrictions in his file. And Moore never experienced any seizures or seizure signs

while working under their supervision.

       III.    Leave to Amend

       Moore argues that the district court should have sua sponte granted him leave to amend his

complaint a second time to plead a cognizable deliberate indifference claim. But Moore failed to

request leave in the district court and may not make this argument for the first time on appeal. See

Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005) (“In general[,] we refrain from

passing on issues not raised below.”).

       We have considered all of Moore’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




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