    14-2546
    Griffin v. Amatucci


                               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 ASUMMARY 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 May, two thousand fifteen.

    PRESENT:
                DENNIS JACOBS,
                ROSEMARY S. POOLER,
                PETER W. HALL,
                      Circuit Judges.
    _____________________________________

    Donald Griffin,

                                Plaintiff-Appellee,

                          v.                                              14-2546

    Dr. Gerald Amatucci, Nancy Smith,
    Nurse Administrator; Upstate
    Correctional Facility,

                                Defendants-Appellants,

    Brian Fischer, Commissioner, et al.,

                                Defendants.

    _____________________________________



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FOR PLAINTIFF-APPELLEE:                               Donald Griffin, pro se, East Elmhurst, NY.

FOR DEFENDANTS-APPELLANTS:                            Eric T. Schneiderman, Attorney General of
                                                      the State of New York; Barbara D.
                                                      Underwood, Solicitor General; Andrew D.
                                                      Bing, Deputy Solicitor General; Frank
                                                      Brady, Assistant Solicitor General, of
                                                      Counsel, Albany, NY.

        Appeal from an order of the United States District Court for the Northern District of New

York (D’Agostino, J.).


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

DECREED that the order of the district court is AFFIRMED IN PART and REVERSED IN

PART.

        Defendants Dr. Gerald Amatucci, a Regional Medical Director at the New York State

Department of Corrections and Community Supervision, and Nancy Smith, a Nurse Administrator

at Upstate Correctional Facility, appeal from the district court’s denial of their motion for

summary judgment based on qualified immunity in Donald Griffin’s 42 U.S.C. § 1983 action.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

        A district court’s denial of a claim for qualified immunity is immediately appealable under

the collateral order doctrine to the extent the denial turns on an issue of law. Savino v. City of New

York, 331 F.3d 63, 71 (2d Cir. 2003). We lack jurisdiction, however, to “resolve material issues

of fact.” Id. at 72. We may also exercise pendent jurisdiction over issues not ordinarily subject

to interlocutory review whenever “(1) they are inextricably intertwined with the determination of

qualified immunity or (2) their resolution is necessary to ensure meaningful review of the district



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court’s ruling on qualified immunity.” Id. at 71-72 (internal quotation marks omitted).

       We review de novo the denial of a summary judgment motion asserting that a defendant is

entitled to qualified immunity. Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012). Qualified

immunity shields a government official from liability for civil damages “if his conduct did not

violate plaintiff’s clearly established rights or if it would have been objectively reasonable for the

official to believe that his conduct did not violate plaintiff’s rights.” Mandell v. Cnty. of Suffolk,

316 F.3d 368, 385 (2d Cir. 2003). The defendants bear the burden of showing they are entitled to

qualified immunity, and, in considering a summary judgment motion, “the district court must draw

all factual inferences in favor of, and take all factual assertions in the light most favorable to, the

party opposing summary judgment.” In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996).

       Griffin, an inmate at Upstate Correctional Facility, alleged that Dr. Amatucci and Nurse

Smith violated his Eighth Amendment rights by refusing to provide him with a

treating-physician-recommended humidifier for his Continuous Positive Airway Pressure

(“CPAP”) machine pursuant to a policy of not providing humidifiers.

       “To establish an Eighth Amendment violation arising out of inadequate medical treatment,

a prisoner must prove ‘deliberate indifference to [his] serious medical needs.’” Johnson v.

Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

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 omitted).


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       We agree with the district court that Dr. Amatucci is not entitled to summary judgment on

the argued grounds that Griffin’s medical needs were insufficiently serious or that Dr. Amatucci

lacked the requisite intent. Dr. Amatucci contends that a humidifier was not medically necessary;

the district court found this to be a disputed fact. Although we have jurisdiction to review

whether a factual dispute is material, “we may not review whether a dispute of fact identified by

the district court is genuine.” Escalera v. Luna, 361 F.3d 737, 743 (2d Cir. 2004) (internal

quotation marks omitted). Dr. Amatucci also contends that he lacked the requisite mental state to

have violated the Eighth Amendment, asserting that his refusal to provide the humidifier

recommended by Griffin’s treating physician pursuant to his policy of not approving humidifiers

for CPAP machines was the result of a mere difference of medical opinion. It is undisputed,

however, that Dr. Amatucci did not review Griffin’s medical records before disregarding the

contrary recommendation of Griffin’s treating physician, and we have held that “a jury could

reasonably find that [a] defendant[] [] acted with a sufficiently culpable state of mind . . . by

reflexively following . . . [a] policy in the face of . . . [contrary] recommendations of plaintiff’s

treating physicians.” Johnson, 412 F.3d at 406; see Brock v. Wright, 315 F.3d 158, 165-66 (2d

Cir. 2003) (“While liability may not be established against a defendant simply because that

defendant was a ‘policy maker’ at the time unconstitutional acts were committed, where

unconstitutional acts are the result of a policy promulgated by the defendant, a valid § 1983 action

may lie.” (internal quotation marks omitted)).

       To the extent, moreover, that Dr. Amatucci asserts that Griffin’s right was not clearly

established because there is no specific case law addressing CPAP machines, his argument lacks

merit. “[F]or a right to be clearly established for purposes of a qualified immunity defense, the


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precise conduct at issue need not previously have been ruled unlawful.” Zahrey v. Coffey, 221

F.3d 342, 357 (2d Cir. 2000). Dr. Amatucci argues that it was objectively reasonable for him to

believe that his conduct was lawful because the record shows only a disagreement about the

medical necessity of a humidifier. As noted above, however, the record before us indicates that

Dr. Amatucci never reviewed Griffin’s medical records prior to denying his request for a

humidifier, and on these facts, without more, a reasonable jury could conclude that Dr. Amatucci’s

reflexive application of his no-humidifier policy in the face of a contrary recommendation by

Griffin’s treating physician was not objectively reasonable. Cf. Johnson, 412 F.3d at 406.

       We have considered all of Dr. Amatucci’s remaining arguments and find them to be

without merit. Because on the record before us there are facts in dispute bearing on whether Dr.

Amatucci is entitled to qualified immunity, we dismiss his appeal from the district court’s denial of

his motion for summary judgment.

       Regarding Nancy Smith, the nurse administrator, we disagree with the district court that

she was not entitled to summary judgment based on qualified immunity. Nurse Smith stated in

her declaration that Dr. “Amatucci[] does not approve the use of humidifiers with CPAP

machines” and that she confirmed this policy with Dr. “Amatucci via email on May 24, 2011.”

J.A. at 96. The record is devoid of any evidence suggesting that Nurse Smith had authority to

deviate from Dr. Amatucci’s policy. The fact that Nurse Smith confirmed the policy only after

placing an order for Griffin’s CPAP machine without a humidifier, moreover, does not support a

finding that Nurse Smith acted with the requisite intent. Cf. Brock, 315 F.3d at 164 (“At most,

[Plaintiff’s] contention that [the Superintendent] should not have deferred to [the Regional

Medical Director] amounts to an allegation of negligence. But negligence is not deliberate


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indifference.”). Because Nurse Smith is entitled to qualified immunity we reverse the order of the

district court as to her.

        The order of the district court is AFFIRMED IN PART, as it relates to Dr. Amatucci, and

REVERSED IN PART, as it relates to Nurse Smith.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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