         10-491
         Goris v. Breslin


                                   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 Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 30 th day of November, two thousand                                    and ten.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       SIMON GORIS,
14
15                                       Plaintiff-Appellant,
16
17                       -v.-                                                   10-0491-pr
18
19       D. BRESLIN, DR. THEBAUD, DR. HAIDER-SHAH,
20       GAIL BUSWELL, DR. LESTER WRIGHT, PUBLIC
21       ADMINISTRATOR OF SUFFOLK COUNTY,
22
23                                       Defendants-Appellees. *
24
25
26




                 *
                 The Clerk of the Court is directed to amend the official caption in
         this matter to conform with that of this order.
 1   FOR APPELLANT:    RICHARD D. OWENS, (John D. Castiglione,
 2                     Aaron M. Singer, on the brief), Latham &
 3                     Watkins LLP, New York, NY.
 4
 5   FOR APPELLEE:     DAVID LAWRENCE III, Assistant Solicitor
 6                     General, of counsel, (Barbara D.
 7                     Underwood, Solicitor General, Richard
 8                     Dearing, Deputy Solicitor General, on the
 9                     brief), for Andrew M. Cuomo, Attorney
10                     General of the State of New York, New
11                     York, NY.
12
13        Appeal from the United States District Court for the
14   Eastern District of New York (Matsumoto, J.).
15
16       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of the district court be

18   AFFIRMED.

19       Plaintiff-appellant Simon Goris commenced this civil

20   rights action pursuant to 42 U.S.C. § 1983 against a number

21   of individuals, including Dr. Francois Thebaud, 1 a physician

22   at Arthur Kill Correctional Facility, Dr. Syed Haider-Shah,

23   a physician at Marcy Correctional Facility, and Dr. Lester

24   Wright, Deputy Commissioner and Chief Medical Officer of the

25   New York State Department of Correctional Services.   Goris

26   contends that the defendants were deliberately indifferent



         1
           Dr. Thebaud passed away in August of 2008, and in
     March of 2009 the Public Administrator of Suffolk County was
     added as a defendant in his stead. For convenience in this
     order, we simply use “Dr. Thebaud” to refer to those claims
     that now lie against his estate.

                                   2
1    to his medical needs, in violation of the Eighth Amendment

2    to the United States Constitution, following a knee injury

3    that he suffered while incarcerated at the Arthur Kill

4    facility in February of 2003.

5        By memoranda and orders dated July 6, 2009 and January

6    26, 2010, the United States District Court for the Eastern

7    District of New York granted summary judgment to the

8    defendants and dismissed Goris’s complaint.   Goris v.

9    Breslin (“Goris I”), No. 04-5666, 2009 WL 1955607 (E.D.N.Y.

10   July 6, 2009); Goris v. Breslin (“Goris II”), No. 04-5666,

11   2010 WL 376626 (E.D.N.Y. Jan. 26, 2010).   We assume the

12   parties’ familiarity with the underlying facts, the

13   procedural history, and the issues presented for review.

14       Following a de novo review, “[e]xamining the facts in

15   the light most favorable to [Goris] and resolving all

16   factual ambiguities in [his] favor,” Pyke v. Cuomo, 567 F.3d

17   74, 76 (2d Cir. 2009) (per curiam), we conclude that the

18   district court properly granted the defendants’ motions for

19   summary judgment.

20       At the outset, we affirm the district court’s

21   determination that Dr. Wright is entitled to summary

22   judgment, because Goris failed to demonstrate that Dr.


                                     3
1    Wright was sufficiently involved in the alleged

2    constitutional violation to establish liability pursuant to

3    § 1983.     Goris I, 2009 WL 1955607, at *7.   The record shows

4    that Dr. Wright’s personal involvement was limited to the

5    receipt of two letters from Goris, which he promptly

6    referred to other individuals for investigation and

7    response.     Accordingly, Goris has failed to establish the

8    requisite personal involvement on Dr. Wright’s part, and the

9    district court properly granted summary judgment in Dr.

10   Wright’s favor.     See Sealey v. Giltner, 116 F.3d 47, 51 (2d

11   Cir. 1997).

12       We also affirm the district court’s grant of summary

13   judgment to Dr. Thebaud and Dr. Haider-Shah, albeit for

14   different reasons than relied upon by that court. 2    See

15   Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir. 2006)

16   (per curiam) (“[W]e may affirm on any basis for which there

17   is sufficient support in the record, including grounds not

18   relied upon by the District Court.”).     The district court

19   concluded that both Dr. Thebaud and Dr. Haider-Shah were


         2
           Goris does not challenge the district court’s grant
     of summary judgment to defendants Breslin and Buswell, and
     we therefore do not reach the merits of those claims. See,
     e.g., In re Wireless Data, Inc., 547 F.3d 484, 492 (2d Cir.
     2008) (argument not raised on appeal waived).

                                     4
1    entitled to summary judgment because Goris failed to satisfy

2    the “subjective prong” of the deliberate indifference

3    standard, under which a plaintiff must establish that the

4    defendant denied treatment with a “sufficiently culpable

5    state of mind.”   Hathaway v. Coughlin, 37 F.3d 63, 66 (2d

6    Cir. 1994).   But we need not reach the subjective prong,

7    because Goris has failed to demonstrate that the alleged

8    deprivation was “sufficiently serious,” as an objective

9    matter, to be actionable under the Eighth Amendment.

10       To prevail on a deliberate indifference claim, a

11   prisoner must first demonstrate “that the alleged

12   deprivation of medical treatment is, in objective terms,

13   ‘sufficiently serious’ — that is, the prisoner must prove

14   that his medical need was ‘a condition of urgency, one that

15   may produce death, degeneration, or extreme pain.’” Johnson

16   v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting

17   Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)).

18   Moreover, “[i]n cases where the inadequacy is in the medical

19   treatment given, the seriousness inquiry is narrower.”

20   Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).

21   Where, as here, “the prisoner is receiving on-going

22   treatment and the offending conduct is an unreasonable delay


                                   5
1    or interruption in that treatment, the seriousness inquiry

2    focuses on the challenged delay or interruption in treatment

3    rather than the prisoner’s underlying medical condition

4    alone.”     Id. (internal quotation marks and alterations

5    omitted).     Stated differently, “it’s the particular risk of

6    harm faced by the prisoner due to the challenged deprivation

7    of care, rather than the severity of the prisoner’s

8    underlying medical condition, considered in the abstract,

9    that is relevant for Eighth Amendment purposes.”     Smith v.

10   Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).

11       With those principles in mind, we conclude that the

12   deficiencies alleged by Goris are insufficient to establish

13   a constitutional violation premised upon deliberate

14   indifference.     The factual record, taken in the light most

15   favorable to Goris, supports his allegations of deliberate

16   indifference premised upon the following acts and omissions:

17   (1) Dr. Thebaud’s refusal to prescribe surgery instead of

18   physical therapy; (2) Dr. Thebaud’s failure to more

19   expeditiously arrange a follow-up with an orthopedist

20   between February and July of 2004; and (3) Dr. Haider-Shah’s

21   refusal to prescribe surgery, or refer Goris to a physical

22   therapist or orthopedist, between August and December of


                                     6
1    2004.

2        Yet those alleged deficiencies, even if proven, do not

3    establish a violation of the Eighth Amendment.     “Because

4    society does not expect that prisoners will have unqualified

5    access to health care, deliberate indifference to medical

6    needs amounts to an Eighth Amendment violation only if those

7    needs are serious.”   Hudson v. McMillian, 503 U.S. 1, 9

8    (1992) (internal quotation marks omitted).   And, “in most

9    cases, the actual medical consequences that flow from the

10   alleged denial of care will be highly relevant to the

11   question of whether the denial of treatment subjected the

12   prisoner to a significant risk of serious harm.”     Smith, 316

13   F.3d at 187.

14       Although Goris has alleged that an unspecified

15   orthopedist “indicated that [he] needed surgery for [his]

16   knee,” J.A. 280, there is no record evidence to support that

17   assertion — to be sure, the record is devoid of any

18   documentary evidence that surgery was ever recommended for

19   Goris during the relevant time frame.   And, when surgery was

20   ultimately conducted in September of 2005, the surgeon found

21   no ACL tear or meniscal pathology.   The record further shows

22   that Goris responded well to physical therapy; in January of


                                   7
1    2004, Goris reported that his knee felt better and was no

2    longer buckling, and in March of 2004, Goris’s medical

3    records reflect that he had “good improvement,” an increase

4    in strength and a decrease in pain.   In August of 2004, Dr.

5    Haider-Shah’s examination of Goris’s knee revealed no

6    physical findings warranting an orthopedic referral.

7    Finally, Dr. Haider-Shah’s failure to refer Goris to a

8    physical therapist between August and December of 2004, even

9    if arguably amounting to malpractice, is hardly a

10   deprivation “sufficiently grave” to constitute an Eighth

11   Amendment violation, see Salahuddin, 467 F.3d at 279-80,

12   especially considering that many, if not all, of the

13   exercises that Goris would have conducted at physical

14   therapy he was capable of doing on his own, see, e.g.,

15   Hernandez v. Keane, 341 F.3d 137, 147 (2d Cir. 2003)

16   (finding relevant that “plaintiff was given instructions by

17   several doctors on how to perform the necessary therapy” on

18   his own).

19       We have considered Goris’s remaining arguments on

20   appeal and find them to be without merit.   For the foregoing

21   reasons, the judgment of the district court is hereby

22   AFFIRMED.


                                  8
1
2   FOR THE COURT:
3   Catherine O’Hagan Wolfe, Clerk
4
5




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