11-3526-cv
Smith v. NYS DOCS


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                           AMENDED 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 24th day of October, two thousand twelve.

PRESENT: JON O. NEWMAN,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
                        Circuit Judges.

———————————————————————

JIMMY SMITH, ANTHONY PALUMBO,
suing on behalf of themselves and all others similarly situated,
                                  Plaintiffs-Appellants,

                     v.                                               No. 11-3526-cv

BRIAN FISCHER, Commissioner, Department of Correctional Services,
                           Defendant-Appellee,

THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
                       Defendant.*

———————————————————————




        *
       The Clerk of the Court is directed to amend the official caption in the case to
conform to the caption listed above.
FOR APPELLANT:                      ROBERT N. ISSEKS (Alex Smith, Peter A. Sell, on the
                                    brief), Middletown, New York and New York, New
                                    York


FOR APPELLEE:                       DAVID LAWRENCE III, Assistant Solicitor General, of
                                    counsel (Barbara D. Underwood, Solicitor General,
                                    Michael S. Belohlavek, Senior Counsel, on the brief), for
                                    Eric T. Schneiderman, Attorney General of the State of
                                    New York, New York, New York.

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

of New York (George B. Daniels, Judge).

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

DECREED that the judgment of the district court is AFFIRMED in part and VACATED and

REMANDED in part.

       Plaintiffs-appellants Jimmy Smith and Anthony Palumbo1 filed a putative class action

against the New York State Department of Correctional Services (“DOCS”) and its

commissioner, defendant-appellee Brian Fischer, for deliberate indifference to their medical

needs as cardiac patients in violation of the Eighth Amendment.2 The district court (George

B. Daniels, Judge) denied class certification and granted summary judgment for Fischer with

respect to plaintiffs’ claims that they do not receive a sufficiently heart-healthy diet (“diet

claims”). The district court held a bench trial regarding plaintiffs’ claims that the conditions

       1
        Appellants’ counsel stated at oral argument that Palumbo has been released from
custody. After the original filing of the previous summary order in this case, appellants’
counsel advised that the original information was inaccurate and that Palumbo remained in
custody while Smith had been released. Smith’s claims are therefore moot, and the previous
summary order issued in this case is withdrawn.
       2
        Plaintiffs conceded in the district court that their lawsuit against DOCS is barred by
the Eleventh Amendment, so DOCS is not a party to this appeal.

                                               2
of their transportation between Woodbourne Correctional Facility (“WCF”) and Albany

Medical Center (“AMC”) constituted deliberate indifference to their medical needs

(“transportation claims”). After trial, the district court entered judgment for Fischer.

Palumbo appeals both the summary judgment and the judgment following the bench trial.

We assume the parties’ familiarity with the facts and prior proceedings, which we reference

only as necessary to explain our decision.

       We review a district court’s decision to grant summary judgment de novo. Sudler v.

City of N.Y., 689 F.3d 159, 168 (2d Cir. 2012). In the context of an appeal from a bench

trial, we review a district court’s conclusions of law de novo and its findings of fact for clear

error. Bessemer Trust Co. v. Branin, 675 F.3d 130, 135 (2d Cir. 2012).

       To succeed on an Eighth Amendment deliberate indifference claim, a plaintiff must

satisfy two requirements. He must show both that the danger posed by the indifference he

alleges is “sufficiently serious” and that the defendant has acted with “deliberate indifference

to inmate health or safety” in failing to address this danger. Phelps v. Kapnolas, 308 F.3d

180, 185 (2d Cir. 2002), quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994).

       1.     Diet Claims

       Palumbo argues that, because of his history as a heart attack survivor, he has special

nutritional needs, that these needs require him to eat a minimum number of servings of fruits

and vegetables, and that the meals provided by DOCS are inadequate to a degree that

represents deliberate indifference to his medical needs in violation of the Eighth Amendment.

The parties do not contest the contents of the menu available to Palumbo; both sides rely on


                                               3
the same menu entered into the record below. Because the dietary facts are undisputed, the

only question is whether the diets provided by DOCS create sufficiently serious danger to

inmate health and whether DOCS provided the meals with requisite knowledge of that

danger.

       Palumbo was given the option to participate in special meal programs that appellee

contends met Palumbo’s dietary needs as a cardiac patient. DOCS provides two diets

designed to be low in cholesterol and sodium and high in fiber. DOCS arranged for Palumbo

to meet with its nutritionist, who specifically recommended that he enroll in the special diet

and who testified that the diets were nutritionally adequate. Palumbo declined to enroll in

either of the special diets.

       Palumbo relies primarily on a document published by the American Heart

Association, which recommends eating four to five servings of fruits and vegetables per day.

The AHA did not provide additional testimony in the case, and its health guidelines purport

only to provide a recommended number of servings of each food group per day based on a

typical 1600- to 2000-calorie diet. The guidelines are not tailored for individuals with a

history of heart attacks, nor do they represent more than goals for a good diet, as opposed to

dietary necessities. The suggested guidelines alone cannot support Palumbo’s argument that,

as a matter of law, the Eighth Amendment requires prison administrators to provide four

servings of fruits and vegetables each day to cardiac patients. Palumbo concedes that he was

offered diets with at least two servings of vegetables and three servings of fruit each day

during the weeks documented in the record. On these facts, Palumbo has failed to meet his


                                              4
burden of showing that the diet provided to him represented a sufficiently serious danger to

his health to violate the Eighth Amendment.

       Even if Palumbo had shown that the special meals provided by DOCS represented a

sufficiently serious danger to his health, he failed to show facts sufficient to demonstrate that

DOCS acted with deliberate indifference. It is undisputed that prison officials offered

Palumbo access to special diets and arranged for him to meet with a registered dietician.

Appellee offered unrebutted testimony that prison officials worked to improve the menus

they provided to conform them to the latest nutritional science. Palumbo has not disputed

or rebutted this evidence of appellee’s efforts to tailor the diets of inmates to their medical

needs. Accordingly, Palumbo has not raised a genuine issue of fact as to whether appellee

was deliberately indifferent to his medical needs. As a result, summary judgment was

appropriate for the diet claims.

       2.     Transportation Claims

       Palumbo also argues that the manner in which he was transported from WCF to AMC

demonstrated deliberate indifference to his medical needs in violation of the Eighth

Amendment. The district court determined that Palumbo suffered “bruising, swelling,

profuse sweating, and anxiety accompanied by tightness in the chest” during van trips to the

AMC. Smith v. Fischer, No. 08 CV 07090(GBD), 2011 WL 3278903, at *3 (S.D.N.Y. July

27, 2011) . But Dr. Mervat Makram, the only medical professional called to testify at trial,

stated that none of the symptoms Palumbo complained of was caused directly by the methods

used to restrain him during trips.



                                               5
       We have recognized that “not all claims regarding improper . . . care will be

constitutionally cognizable” because “medical conditions[] may be of varying severity.”

Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Palumbo’s symptoms do not rise

to the level of severity required under the Eighth Amendment standard. In light of Dr.

Makram’s testimony, which the district court was entitled to credit, the district court’s

conclusion that Palumbo did not face the kind of serious, objective risk required under the

Eighth Amendment inquiry was not error.

       Even if Palumbo had shown that the danger caused by his transportation was

sufficiently severe, the district court’s finding that appellee was not deliberately indifferent

to his medical needs is not clearly erroneous. At trial, Palumbo himself testified to the efforts

made by Captain Peter Early, head of security at WCF, as well as Dr. Makram and other

corrections officers, to address the discomfort he suffered under normal transportation

protocols. Numerous steps were taken to accommodate Palumbo’s medical needs, including

altered restraint procedures, easier access to therapeutic medication, and reduced trip times.

While some officers were unaware of these accommodations or otherwise failed to modify

protocols, Palumbo never notified Captain Early or security staff about these isolated

failures. On this record, the district court’s findings that prison officials were not deliberately

indifferent to Palumbo’s medical needs was amply supported.




                                                6
       3.     Conclusion

       For the foregoing reasons, the judgment of the district court is AFFIRMED in part.

Because Smith’s claims are now moot, we VACATE the judgment of the district court with respect

to his claims and REMAND the case with instructions that Smith’s claims be dismissed as moot.




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




                                              7
