11-1475-pr
Allah v. Artuz

                  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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 21st day of December, two thousand twelve.

PRESENT:    DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                 Circuit Judges,
            JOHN GLEESON,
                 District Judge.*

- - - - - - - - - - - - - - - - - - - -x
TYHEEM ALLAH, AKA TYHEEM KEESH,
               Plaintiff-Appellant,
                  -v.-                                11-1475-pr
D. MICHAEL, Lieutenant, T. BEZIO, Prison
Guard, CZYZ, Lieutenant, T. QUACKENBUSH,
Lieutenant, GAIL DOUGHERTY, Tier
Assistant, Counselor, THOMAS A. COUGHLIN,
III, former Commissioner, GLEN S. GOORD,
Commissioner, WALSH, Captain, DONALD,
Director of Special Housing Unit, New
York State Department of Correction, JOSE
PICO, Administrative Hearing Officer,
               Defendants,
                  -v.-
CHRISTOPHER ARTUZ, Superintendent,
JOHN/JANE DOES, Physicians and/or



      *
          The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Physician Assistants, JOSEPH T. SMITH,
Superintendent,
                Defendants-Appellees.**
- - - - - - - - - - - - - - - - - - - -x
FOR PLAINTIFF-APPELLANT:         Tyheem Allah, AKA Tyheem Y. Keesh,
                                 pro se, Ossining, New York.
FOR DEFENDANTS-APPELLEES:        Barbara D. Underwood, Solicitor
                                 General, Steven C. Wu, Special
                                 Counsel to the Solicitor General,
                                 Claude S. Platton, Assistant
                                 Solicitor General, for Eric T.
                                 Schneiderman, Attorney General of
                                 the State of New York, New York,
                                 New York.

          Appeal from the United States District Court for the

Southern District of New York (Hellerstein, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the memorandum and order and orders of the

district court are AFFIRMED.

          Plaintiff-appellant Tyheem Allah, AKA Tyheem Keesh

("Keesh"), appeals from the district court's "final judgment

entered in this action on April 18, 2011."     No judgment, however,

was ever entered below.     We assume Keesh is appealing from the

district court's memorandum and order entered August 6, 2008

granting defendants-appellees' summary judgment motion in part,

its order entered November 9, 2010 denying appointment of counsel
in forma pauperis, and its order entered April 18, 2011 granting
summary judgment dismissing the remaining claim in the case.1


     **
          The Clerk of Court is directed to amend the official
caption to conform with the above.
     1
          A final judgment is deemed entered 150 days after the
district court's entry of its order granting summary judgment,

                                  -2-
          On appeal, Keesh principally challenges the district

court's rulings (1) dismissing his § 1983 claim based on

deliberate indifference to his medical needs in violation of his

rights under the Eighth and Fourteenth Amendments, (2) dismissing

his retaliation claim, and (3) denying his request for

appointment of counsel in forma pauperis.      We assume the parties'

familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

          We review de novo the district court's grant of summary

judgment, viewing the evidence and drawing all inferences in

favor of the non-moving party.   See Ruggiero v. Cnty. of Orange,
467 F.3d 170, 173 (2d Cir. 2006).      We review a district court's

denial of appointment of counsel for abuse of discretion.     See

Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).
1.   Deliberate Indifference

          To demonstrate deliberate indifference by prison

officials for purposes of 42 U.S.C. § 1983, Keesh was required to

satisfy a two-prong test.   The objective prong requires that the

prison officials actually deprived Keesh of adequate medical care

and the deprivation was sufficiently serious.     See Salahuddin v.
Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).     The subjective prong

requires that the prison officials were aware of a substantial




see Fed. R. Civ. P. 58(c)(2)(B), and in light of Rule 3(c)(1)(B)
of the Federal Rules of Appellate Procedure and this Court's
liberal construction of pro se filings generally, we address
Keesh's arguments pertaining to the above-mentioned orders of the
district court. The defendants-appellees do not argue that we
lack appellate jurisdiction.

                                 -3-
risk of serious harm but ignored the risk.     Johnson v. Wright,

412 F.3d 398, 403 (2d Cir. 2005).

          We affirm the district court's dismissal of Keesh's

deliberate indifference claim, as Keesh failed to satisfy the

objective prong of the test.    Keesh did not present evidence from

which a reasonable jury could have found a serious deprivation of

adequate medical care as to the pins in his feet.    In 1995, Dr.

DeWire examined Keesh and concluded that the pain complained of

is "not in [the] area of [the] pins" and that there was "no need

to remove [the] pins."    In 2004, Dr. Forte examined Keesh and

found "no medical need" for an orthopedic consultation regarding

the removal of pins from his feet.     In 2010, Dr. Chung Lee

concluded that there was "no basis for removing" the pins from

Keesh's feet, that "surgery to remove the pins would be

unnecessary and would cause him additional pain[,]" and that

Keesh "has received standard medical care in connection with his

feet."   Keesh did not present admissible evidence to contradict

these medical opinions.

          Nor did Keesh show the existence of a genuine issue of

fact as to whether he suffered a serious deprivation of mental

health treatment, as he was offered professional mental health

treatment but refused because "he did not trust the white mental

health staffs provided."    "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."

Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).



                                 -4-
2.   Retaliation

            To sustain a retaliation claim, Keesh was required to

show "(1) that the speech or conduct at issue was protected, (2)

that the defendant took adverse action against the plaintiff, and

(3) that there was a causal connection between the protected

speech and the adverse action."    Gill v. Pidlypchak, 389 F.3d

379, 380 (2d Cir. 2004) (citations and internal quotation marks

omitted).

            Even assuming the first two elements were satisfied,

Keesh did not demonstrate a triable issue of fact as to a causal

connection between his filing of grievances against the prison

officials and adverse actions taken against him, i.e., being sent
to a special housing unit ("SHU") for 180 days, and being

transferred away from Green Haven Correctional Facility without

receiving surgery to remove the pins from his feet.

            Keesh was placed in SHU based on a 1994 misbehavior

report citing him for exposing his private parts while in his

cell, and Keesh presented no evidence to suggest a retaliatory

motive behind the decision to place him in SHU.    Keesh was

subsequently transferred away from Green Haven pursuant to the

New York State Department of Corrections and Community

Supervision policy and procedure for "Staff Separation reasons,"

apparently to separate him from corrections officer Bezio.     Artuz

did not make the decision to transfer Keesh, and attested that he

was not even aware of a complaint by Keesh against him.    Thus,

the district court properly granted summary judgment in this

regard.

                                  -5-
3.   Appointment of Counsel

           Keesh argues that the district court abused its

discretion in denying him appointment of counsel, and that,

consequently, he was unable to conduct adequate discovery to

support his claims and to identify the Doe defendants.     The

district court denied Keesh's application because it was unable

to determine whether his claim was "likely to be of substance."

Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).     The

district court's denial was without prejudice, however, to

Keesh's renewing his application.     Keesh did not renew his

request.   Moreover, Keesh was appointed pro bono counsel and was

represented by counsel during discovery, for the filing of his

amended complaint, and in opposing the defendants' first motion

for summary judgment, which was made after more than two years of

discovery.   We conclude that the district court did not abuse its

discretion in denying Keesh's application for appointment of

counsel after his counsel withdrew.

           We have considered all of Keesh's remaining arguments

and conclude they are without merit.     Accordingly, we AFFIRM the

memorandum and order and orders of the district court.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




                                -6-
