18‐274‐pr
Alvarez v. Wright

                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 18th day of December, two thousand nineteen.

PRESENT:            ROBERT D. SACK,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
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ERIC ALVAREZ,
                                        Plaintiff‐Appellant,

                                           v.                                        18‐274‐pr

DR. CARSON WRIGHT, M.D.,
Senior Doctor/On Call Doctor at 7:45pm on 7‐12‐16,
                                         Defendant-Appellee.
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FOR PLAINTIFF‐APPELLANT:                                     STEPHEN BERGSTEIN, Bergstein & Ullrich,
                                                             LLP, New Paltz, New York.


FOR DEFENDANT‐APPELLEE:                                      ROBERT S. DEARINGTON, Assistant
                                                             Attorney General, for William Tong, Attorney
                                                             General of Connecticut, Hartford, Connecticut.
              Appeal from the United States District Court for the District of

Connecticut (Hall, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Eric Alvarez appeals from the district courtʹs judgment,

entered January 23, 2018, dismissing his claims against defendant‐appellee Dr. Carson

Wright. Alvarez, an inmate at MacDougall‐Walker Correctional Institution in Suffield,

Connecticut, proceeding pro se in the district court, sued Wright under 42 U.S.C. § 1983

for violations of the Eighth Amendment. On January 19, 2018, the district court granted

Wrightʹs motion for summary judgment. Prior to this ruling, Alvarez moved three

times for appointment of counsel and the court denied each motion. On appeal,

Alvarez argues that the district court erred in denying his motions for appointment of

counsel. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.

               We review a district courtʹs decision on appointment of counsel for abuse

of discretion. See Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68‐69 (2d

Cir. 2011). ʺA district court has abused its discretion if it has (1) based its ruling on an

erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or

(3) rendered a decision that cannot be located within the range of permissible




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decisions.ʺ Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (internal quotation

marks omitted).

              When the district court decided the motions for appointment of counsel, it

had before it the following facts drawn from the complaint and Wrightʹs motion for

summary judgment, which included Alvarezʹs medical records, excerpts from his

deposition, and Wrightʹs affidavit: On July 12, 2016, in the evening, Alvarez fell in the

shower and injured his leg. Alvarez was taken to the medical unit and seen by a nurse,

as there was no physician present at the facility. Wright was the physician on call, and

he advised the nurse by telephone to give Alvarez medication and ice to alleviate the

pain, to place his leg in a splint, and to keep him in the infirmary overnight for

monitoring. Wright ordered an X‐ray for the following morning. While the prison had

its own X‐ray facility, an X‐ray technician was on site only between 8 a.m. and 2 p.m.

              The following morning, an X‐ray revealed that Alvarez had fractured his

leg, and he was immediately transferred to a hospital for emergency surgery.

Approximately thirteen hours elapsed between Alvarezʹs injury and his X‐ray.

Although Alvarez contended in his complaint that the nurse told Wright that Alvarezʹs

ʺbone was sticking through the skin of [his] right leg,ʺ he admitted at his deposition that

he did not hear the conversation between the nurse and Wright. J. Appʹx at 13. Alvarez

also testified that he saw only ʺa couple bumpsʺ and ʺfigured they were bones.ʺ J.

Appʹx at 55. Moreover, Alvarezʹs medical records from July 12, 2016, and July 13, 2016,


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report that his right leg was swollen and tender, but do not indicate that his bone was

protruding through the skin. In his affidavit in support of the summary judgment

motion, Wright attested to the following: ʺ. . . I donʹt recall the nurse giving me any

indication that the plaintiffʹs leg was broken. . . . Based upon the information that was

conveyed to me from the nurse, I did not believe this was an emergency situation that

required an immediate transport to the emergency room.ʺ J. Appʹx at 47‐48.

               Alvarez alleges that Wright, in delaying the X‐ray until the next morning,

was deliberately indifferent to his serious medical needs, and that the delay caused

medical complications, including sharp pain in his leg, that continue to the present.

               Pursuant to 28 U.S.C. § 1915(e)(1), a district court may appoint counsel for

ʺany person unable to afford counsel.ʺ As a threshold requirement for appointment of

counsel, the case must have some ʺlikelihood of merit.ʺ Cooper v. A. Sargenti Co., 877

F.2d 170, 172‐74 (2d Cir. 1989) (per curiam); see also Smith v. Fischer, 803 F.3d 124, 127 (2d

Cir. 2015) (per curiam). In deciding a motion to appoint counsel, the court should first

determine whether the movantʹs position ʺseems likely to be of substance.ʺ Hodge v.

Police Officers, 802 F.2d 58, 61 (2d Cir. 1986); cf. Leftridge, 640 F.3d at 69 (noting that a

motion for counsel is properly denied when the movantʹs chances of success are ʺhighly

dubiousʺ). Once this threshold is met, a court may then consider other criteria such as

movantʹs ability to obtain counsel independently. See Cooper, 877 F.2d at 172.




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              In its rulings on Alvarezʹs motions, the district court focused on his

inability to obtain counsel, addressing the threshold matter of likelihood of merit in one

sentence in its ruling on Alvarezʹs first two motions to appoint counsel: ʺEven if

[Alvarez] was unable to obtain counsel, he has not presented the court with sufficient

information to show that his claim is meritorious.ʺ J. Appʹx at 82; see also J. Appʹx at 24‐

28; 75‐79. The district court addressed the merits in a similar fashion in its ruling on

Alvarezʹs third motion to appoint counsel. See J. Appʹx at 103.

              ʺ[W]e may affirm on any grounds for which there is a record sufficient to

permit conclusions of law, including grounds not relied upon by the district court.ʺ

Holcomb v. Lykens, 337 F.3d 217, 223 (2d Cir. 2003) (internal quotation marks omitted).

We conclude, based on our own analysis of the record, that Alvarez did not meet the

threshold merits requirement. See Cooper, 877 F.2d at 172‐74. Accordingly, we need not

reach the other criteria.

              To establish an Eighth Amendment violation based on inadequate medical

care, a prisoner must demonstrate both an objectively serious medical deprivation and

subjective deliberate indifference on the part of the charged official. See Smith v.

Carpenter, 316 F.3d 178, 183‐84 (2d Cir. 2003). With respect to the objective component,

ʺ[t]he serious medical needs standard contemplates a condition of urgency such as one

that may produce death, degeneration, or extreme pain.ʺ Charles v. Orange Cty., 925

F.3d 73, 86 (2d Cir. 2019). If the basis of the complaint is a temporary delay, as here, it is


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appropriate to focus on the effect of that challenged delay in treatment in determining

whether the risk was objectively serious. See Carpenter, 316 F.3d at 186 (ʺ[D]elay in

medical treatment must be interpreted in the context of the seriousness of the medical

need, deciding whether the delay worsened the condition, and considering the reason

for the delay.ʺ) (quoting Hill v. Dekalb Regʹl Youth Ctr., 40 F.3d 1176, 1189 (11th Cir.

1994)). With respect to the subjective component, the prisoner must show deliberate

indifference, i.e., that the medical professional possessed ʺa state of mind that is the

equivalent of criminal recklessness.ʺ Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.

1996).

              Here, when the district court decided the motions to appoint counsel, it

had before it the medical records, Wrightʹs affidavit, and the excerpts from Alvarezʹs

deposition. That record showed that it was highly unlikely that Alvarez would be able

to demonstrate that Wright acted with deliberate indifference. Wright prescribed pain

medication for Alvarez, directed that his leg be put in a splint and that he be kept in the

infirmary overnight, and ordered an X‐ray for the next morning when an X‐ray

technician would be on duty. Though Alvarez asserted in both his complaint and in his

opposition to the summary judgment motion (after the district court denied his motions

for counsel) that the nurse said that she told Wright that Alvarezʹs bone was sticking

through his skin, this is belied by (1) Alvarezʹs own description of his leg as having ʺa

couple of bumpsʺ and some ʺswelling,ʺ (2) contemporaneous medical records that


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describe Alvarezʹs leg as swollen and tender, without any mention of protruding bones,

and (3) Wrightʹs affidavit stating that he was unaware that Alvarezʹs leg was broken. J.

Appʹx at 47, 55, 120; see also Sealed Appʹx at 1‐3. Indeed, Wright stated in his affidavit

that ʺ[i]f the nurse had told me that [Alvarezʹs] bone was sticking through his skin, I

would have had him immediately sent to the hospital.ʺ J. Appʹx at 48. On this record,

no rational jury could find that Wright possessed the culpable state of mind to satisfy

the subjective standard of a deliberate indifference claim. We therefore conclude that

the district court did not abuse its discretion when it denied Alvarezʹs motions for

appointment of counsel.

                                      * * *
              We have considered Alvarezʹs remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




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