14-4616-pr
Wright v. Rao


                      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 23rd day of November, two thousand fifteen.

PRESENT: AMALYA L. KEARSE,
           REENA RAGGI,
           RICHARD C. WESLEY,
                 Circuit Judges.
_____________________________________

MELVIN WRIGHT,
              Plaintiff-Appellant,

                v.                                                    14-4616-pr

DOCTOR RAO, Health Services Director,
ABBASEY, M.D., DOCTOR CARL J.
KONIGSMAN,
                Defendants-Appellees.

_____________________________________

FOR APPELLANT:                            Melvin Wright, pro se, Gowanda, New York.

FOR APPELLEES:                            Barbara D. Underwood, Solicitor General
                                          (Jonathan D. Hitsous, Andrew B. Ayers,
                                          Assistant Solicitors General, on the brief), for
                                          Eric T. Schneiderman, Attorney General of the
                                          State of New York, Albany, New York.
       Appeal from a judgment of the United States District Court for the Western District

of New York, (William M. Skretny, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 26, 2014, is AFFIRMED.

       Plaintiff Melvin Wright, proceeding pro se, appeals from a summary judgment

award in favor of defendants on his claims of deliberate indifference to serious medical

need under 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying

facts and procedural history, which we reference only as necessary to explain our decision

to affirm.

       We review grants of summary judgment de novo and will affirm only if the record,

viewed in favor of the non-moving party, shows that there were no genuine issues of

material fact and that the moving party was entitled to judgment as a matter of law. See

Jackson v. Federal Express, 766 F.3d 189, 193−94 (2d Cir. 2014). A plaintiff pursuing an

Eighth Amendment challenge to prison medical care must adduce evidence that the

defendant was deliberately indifferent to a serious medical need. See Farmer v. Brennan,

511 U.S. 825, 834 (1994). “[T]he deliberate indifference standard embodies both an

objective and a subjective prong.       Objectively, the alleged deprivation must be

sufficiently serious, in the sense that a condition of urgency, one that may produce death,

degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.

1996) (internal quotation marks omitted). “Subjectively, the charged official must act


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with a sufficiently culpable state of mind,” i.e., “something more than mere negligence”

and akin to criminal recklessness. Id.

       The parties do not dispute that Wright’s neck and back pain was an objectively

serious medical condition. Rather, Wright faults the district court’s determination that he

raised no genuine issue of material fact as to defendants’ culpable state of mind. Upon our

own record review, we reach the same conclusion as the district court. The record shows

that defendants did not ignore Wright’s condition but, rather, offered various pain relievers

and muscle relaxants to manage his pain, which Wright refused because he said they did

not help. Further, defendant Rao referred Wright to a specialist. Insofar as defendants

denied Wright’s request for stronger painkillers (including an opioid), the record reflects

defendants’ concerns about liver damage, in light of Wright’s Hepatitis C diagnosis, and

Wright’s history of drug abuse. Wright’s disagreement with this choice of treatment is

not evidence of defendants’ deliberate indifference to his condition. See Chance v.

Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“It is well-established that mere

disagreement over the proper treatment does not create a constitutional claim. 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.”); see also Hill v. Curcione, 657 F.3d

116, 123 (2d Cir. 2011) (affirming dismissal where inmate was prescribed Motrin for his

nerve condition but sought stronger pain medication and “nerve conduction study”).

       Nor does Wright raise a genuine issue as to whether defendants were subjectively


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indifferent through evidence that doctors at other correctional facilities prescribed stronger

painkillers and, eventually, surgery. Even if this evidence indicated medical malpractice

by defendants, that would not be enough by itself to support an Eighth Amendment claim.

See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (stating that showing of medical

malpractice is insufficient to support Eighth Amendment claim unless malpractice

involves culpable recklessness, an act or omission evincing conscious disregard of

substantial risk of serious harm). Thus, summary judgment was properly entered in favor

of defendants.

       We have considered Wright’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 of Court




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