    10-4046-pr
    Concepcion v. Pickles



                            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.

            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 13th day of December, two thousand eleven.

    PRESENT:
                Roger J. Miner,
                Robert A. Katzmann,
                Susan L. Carney,
                       Circuit Judges.
    ____________________________________________________

    Miguel Concepcion,

                      Plaintiff-Appellant,

                             v.                                          10-4046-pr

    Robert Pickles, Physician, Oneida Correctional Facility,
    Susan Connell, Superintendent, Oneida Correctional Facility,

                Defendants-Appellees.
    ____________________________________________________

    FOR APPELLANT:                   Miguel Concepcion, pro se, Staten Island, N.Y.

    FOR APPELLEES:                   Martin Atwood Hotvet and Denise A. Hartman, Assistant
                                     Solicitors General, Barbara D. Underwood, Solicitor General, of
                                     counsel, for Eric T. Schneiderman, Attorney General of the State
                                     of New York, Albany, N.Y.


             Appeal from a judgment of the United States District Court for the Northern District of
New York (Scullin, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Miguel Concepcion, proceeding pro se, appeals from the district court’s

judgment granting the defendants’ summary judgment motion and dismissing his claim, brought

pursuant to 42 U.S.C. § 1983, that the defendants acted with deliberate indifference to his

medical needs in violation of the Eighth Amendment. We assume the parties’ familiarity with the

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

       We review an order granting summary judgment de novo and ask whether the district

court properly concluded that there were no genuine issues of material fact and that the moving

party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine issues of material

fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in

favor of the party against whom summary judgment [was] sought.” Terry v. Ashcroft, 336 F.3d

128, 137 (2d Cir. 2003) (internal quotation marks omitted). However, “conclusory statements or

mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. State of

New York, 316 F.3d 93, 100 (2d Cir. 2002).

       Having conducted a de novo review of the record, we affirm for substantially the same

reasons stated in the magistrate judge’s thorough and well-reasoned February 12, 2010, report

and recommendation. The medical records demonstrate that Concepcion was not taking

medication for his Human Immunodeficiency Virus (HIV) infection at the time that he was

transferred to Oneida Correctional Facility and that he had not taken HIV medication


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continuously since his incarceration began. While incarcerated at Oneida, his CD4 count was

consistently monitored by Dr. Pickels, who promptly began treatment when it fell below 350

cells/mm3 in December 2006. Accordingly, Concepcion cannot demonstrate that Dr. Pickels

acted with the requisite mental intent to show deliberate indifference, which requires that “the

charged official act or fail 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). Furthermore,

Concepcion failed to demonstrate Superintendent Connell’s personal involvement in the alleged

constitutional violation because, while she had knowledge of the grievance, she could not have

taken any further action since Dr. Pickels had already begun treatment for Concepcion’s HIV

infection.

        We have considered all of Concepcion’s arguments, including his contention that the

district court improperly denied him discovery and improperly weighed evidence, and find them

to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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