    12-3629
    Fuller v. Lantz


                           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 TO 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 19th
    day of December, two thousand thirteen.

    PRESENT:
              ROSEMARY S. POOLER,
              BARRINGTON D. PARKER,
              RICHARD C. WESLEY,
                   Circuit Judges.
    _____________________________________

    Jancis Fuller,

                            Plaintiff-Appellant,

                      v.                                   12-3629-cv

    Theresa Lantz, in her individual
    and official capacity, Patricia
    Ottolini, in her individual and
    official capacity, Edward Pesanti,
    M.D., in his individual and
    official capacity, Aslam Kadri,
    M.D., in his individual and
    official capacity, S. Gupta, M.D.,
    in her individual and official
    capacity,

                   Defendants-Appellees.
    _____________________________________
FOR PLAINTIFF-APPELLANT:      Jancis Fuller, pro se, Niantic, CT.

FOR DEFENDANTS-APPELLEES:     Lynn D. Wittenbrink, Assistant
                              Attorney General (George Jepsen,
                              Attorney General of the State of
                              Connecticut, on the brief)
                              Hartford, CT.

     Appeal from the judgment of the United States District Court
for the District of Connecticut (Kravitz, J.).

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

     Plaintiff-Appellant Jancis Fuller, pro se, appeals from the
district court’s judgment granting the Defendants-Appellees’
motion for summary judgment, which resulted in the dismissal of
Fuller’s claim of deliberate indifference to her tuberculosis 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 the grant of summary judgment de novo. See
Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). “Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.” Id.; accord Fed. R. Civ. P.
56(a). In determining whether there are genuine disputes of
material fact, the court is “‘required to resolve all ambiguities
and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’” Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir. 2003) (quoting Stern v. Trs. of
Columbia Univ. in City of N.Y., 131 F.3d 305, 312 (2d Cir.
1997)). There is no genuine dispute for trial “[w]here the record
taken as a whole could not lead a rational trier of fact to find
for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

     The district court correctly concluded that the Defendants-
Appellees were entitled to summary judgment on Fuller’s
deliberate indifference claim. We therefore affirm for
substantially the same reasons set forth by the district court in
its well-reasoned decision dated August 6, 2012.

     Fuller argues that the statements in the report of her
medical expert and in the affidavits that she proffered were
sufficient to create a genuine dispute of fact concerning whether
she suffered from active tuberculosis. That argument is not

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meritorious. As the district court correctly noted, Fuller’s
medical expert found no evidence of active tuberculosis following
his examination, which included blood and urine tests. While he
did note the presence of lesions on Fuller’s body, and suggested
a biopsy of those lesions in order to definitively rule out
cutaneous tuberculosis, he did not diagnose Fuller with that form
of the disease. In the absence of such a diagnosis, the
conclusion that the lesions represented cutaneous tuberculosis,
rather than some other affliction, may be drawn only from the
affidavits of Fuller and her acquaintances, none of whom are
medical professionals. The district court correctly determined
that such lay statements are insufficient to create a genuine
dispute of fact as to the propriety of a medical diagnosis. See
Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (plaintiff’s
testimony that his medical condition prevented him from losing
weight was insufficient to withstand a motion for summary
judgment in the absence of “competent medical evidence confirming
that connection”).

     Next, even assuming that Fuller could demonstrate that her
latent tuberculosis constituted a serious medical need under the
Eighth Amendment, the evidence she proffered was insufficient to
create a genuine dispute on the issue of whether the Defendants-
Appellees acted with a “sufficiently culpable state of mind.”
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (explaining
that, to succeed on a deliberate indifference claim, a plaintiff
must demonstrate both a serious medical need and that the
defendants consciously disregarded a substantial risk of serious
harm).

     On this point, Fuller relies on the opinion of her medical
expert that she did not receive the “standard of medical care”
when the Defendants-Appellees, after discontinuing a treatment
regimen of the medication Isoniazid (“INH”) because Fuller’s
liver function tests returned abnormal results, failed to
prescribe a different medication, Rifampin. Even taken as true,
this opinion suggests only that the Defendants-Appellees were
negligent, which is insufficient to make out a constitutional
violation. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.
1998) (“negligence, even if it constitutes medical malpractice,
does not, without more, engender a constitutional claim”).

     Moreover, the Defendants-Appellees submitted evidence that
they did not disregard the risk that Fuller’s latent infection
would develop into active tuberculosis. When they discontinued
the INH regimen, they prescribed annual chest x-rays, which is
also a method of detecting the disease. Fuller’s disagreement
with this course of action does not rise to the level of a

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constitutional violation. See Chance, 143 F.3d at 703 (“So long
as the treatment given is adequate, the fact that a prisoner
might prefer a different treatment does not give rise to an
Eighth Amendment violation.”).

     We have considered all of Fuller’s remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.


                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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