13-4663-pr
Butler v. B. Furco, Nurse Administration

                                   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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of August, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    ROSEMARY S. POOLER,
                    DENNY CHIN,
                                 Circuit Judges,


WILLIE BUTLER,

                    Plaintiff-Appellant,

                              v.                                     No. 13-4663-pr

B. FURCO, Nurse Administration,

                    Defendant-Appellee.

GENOVESE, Doctor, Director,
ALAM, Doctor,

                    Defendants.



FOR PLAINTIFF-APPELLANT:                            Willie Butler, pro se, Otisville, NY.

FOR DEFENDANT-APPELLEE:                             Claude S. Platton, Assistant Solicitor General
                                                    of the State of New York (Barbara D.
                                                    Underwood, Solicitor General, and Michael S.
                                                       Belohlavek, Senior Counsel, on the brief), for
                                                       Eric T. Schneiderman, Attorney General,
                                                       New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Denise L. Cote, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

       Plaintiff Willie Butler, proceeding pro se, appeals from the District Court’s November 19,
2013 judgment granting defendants’ motion for summary judgment, and dismissing Butler’s claims
under 42 U.S.C. § 1983.

        Butler’s § 1983 action arises from his medical treatment at Sing Sing Correctional Facility.
Before the District Court, Butler asserted that three medical professionals—Dr. Tasbirul Alam,
Health Services Director Dr. Maryann Genovese, and Nurse Barbara Furco—were deliberately
indifferent to his serious medical needs, in violation of the Eighth Amendment to the U.S.
Constitution. The District Court granted defendants’ motion for summary judgment and dismissed
Butler’s claims. 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, viewing the facts “in the
light most favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s
favor.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment
is warranted only where “there is no genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Mathirampuzha v. Potter, 548
F.3d 70, 74 (2d Cir. 2008).

         To prevail on his Eighth Amendment claim, Butler must show that the defendants were
deliberately indifferent to a serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834-35 (1994).
The deliberate indifference standard is comprised of an objective and a subjective component:
(1) the alleged deprivation of medical care “must be sufficiently serious”; and (2) the defendant must
have acted with the requisite mental state, meaning “something more than mere negligence,” and
akin to criminal recklessness. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal
quotation marks and citation omitted). In cases where the alleged “inadequacy is in the medical
treatment given, the seriousness inquiry is narrower.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.
2006). We focus on the alleged inadequate treatment, not the underlying condition alone. Smith v.
Carpenter, 316 F.3d 178, 185 (2d Cir. 2003).




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        We granted Butler’s motion to proceed in forma pauperis as to his “claim against Nurse Furco,
which was not specifically addressed by the district court.” Dkt. No. 40. We dismissed the appeal as
to Butler’s other claims. Id.

         Upon our de novo review of the record, we conclude that Butler’s claim against Nurse Furco
is meritless. Therefore, although the District Court failed to address this claim separately, remand to
the District Court would be futile. See McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012)
(“We may affirm summary judgment on any ground supported by the record, even if it is not one on
which the district court relied.”); Chase Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co. of
Chicago, 93 F.3d 1064, 1072 (2d Cir. 1996) (“An appellate court has the power to decide cases on
appeal if the facts in the record adequately support the proper result, or if the record as a whole
presents no genuine issue as to any material fact.” (internal citations and quotation marks omitted)).

        Read broadly, Butler’s complaint alleged that Nurse Furco was deliberately indifferent to his
serious medical needs in three ways: (1) through her involvement with Butler’s allergic reaction to
an antibiotic, Doxycycline; (2) by falsely reporting that Butler was having stomach problems instead
of headaches; and (3) by refusing to administer an EKG, which was “mandatory” due to his
pacemaker.

        As to Butler’s first claim, the record establishes that Butler’s medical file did not make
reference to his allergy to Doxycycline before June 18, 2012. Thus, there is no evidence in the
record to support an inference that anyone involved in Butler’s care prior to June 18, 2012, including
Nurse Furco, was aware of Butler’s allergy to Doxycycline before it was prescribed. Moreover,
Nurse Furco did not prescribe the drug—Dr. Alam wrote the prescription. And the fact that
Doxycycline could be taken safely with the heart medication Butler was also taking—Digoxin—
undermines Butler’s claim that prescribing Doxycycline reflected deliberate indifference to his
health. Finally, even assuming that Butler’s allergic reaction was a “serious medical condition,” there
is no evidence that Nurse Furco’s purported actions were taken with the requisite mental state.
Accordingly, no reasonable jury could conclude that Nurse Furco acted with deliberate indifference
with respect to Butler’s reaction to taking Doxycycline.

         Butler’s second claim—that Nurse Furco “misreported” to doctors that Butler suffered
stomach problems instead of a headache—is equally meritless. Even assuming the truth of this
allegation, no reasonable jury could conclude that this purported misrepresentation was made with
the requisite mental state—i.e., something more than mere negligence, akin to criminal recklessness.
Negligent errors are not actionable as deliberate indifference to medical needs under the Eighth
Amendment. See Hathaway, 99 F.3d at 553. Moreover, the record does not establish that Nurse
Furco’s misrepresentation of Butler’s symptoms caused him any harm. In fact, the undisputed
medical records show that Butler corrected any misunderstanding and was treated for a headache
that day. See Record on Appeal (“ROA”) doc. 69-2 at 19 (noting Butler complained of “headaches
for 2-3 days” and order of “Ibuprofen . . . for headache”). Accordingly, no reasonable jury could

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conclude that Nurse Furco acted with deliberate indifference in misrepresenting Butler’s headache as
stomach problems.

        Finally, Butler’s third claim—that Nurse Furco failed to administer an EKG—has not been
raised on appeal. Accordingly, Butler has abandoned this claim. See LoSacco v. City of Middletown, 71
F.3d 88, 92-93 (2d Cir. 1995) (explaining that a litigant—even one who is pro se—abandons any
issues not raised in an appellate brief). In any event, the undisputed evidence establishes that Butler
received an EKG on June 18, 2012, the same day Nurse Falco cared for him. See ROA doc. 69-2 at
19 (noting “EKG obtained”). Therefore, even if Nurse Furco negligently failed to administer an
EKG, negligence is not actionable under the Eighth Amendment, and—in any event—the alleged
negligence was immediately corrected.

                                          CONCLUSION

       We have considered all of the arguments raised by Butler on appeal and find them to be
without merit. For the reasons stated above, the November 19, 2013 judgment of the District Court
is AFFIRMED.



                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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