     14-3807-pr
     Gathers v. Tan

                            UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
 1   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
 2   TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
 3   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 4   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
 5   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
 6   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
 7   CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
 8   REPRESENTED BY COUNSEL.

 9          At a stated term of the United States Court of Appeals for the Second Circuit, held at
10   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
11   on the 14th day of October, two thousand fifteen.
12
13   PRESENT:
14              GUIDO CALABRESI,
15              BARRINGTON D. PARKER,
16              SUSAN L. CARNEY,
17                          Circuit Judges.
18   _________________________________________
19
20   TRAVIS GATHERS,
21
22                         Plaintiff-Appellant,
23
24                    v.                                             No. 14-3807-pr
25
26   JOSEPH TAN; M. SAMUELSON, NURSE
27   ADMINISTRATOR; KEN JIN; SUPERINTENDENT
28   BERBARY, REGIONAL HEALTH SERVICE
29   ADMINISTRATOR; BROOK BLAINE-RONEY,
30
31                    Defendants-Appellees.
32   _____________________________________
33
34   FOR PLAINTIFF-APPELLANT:                                 Travis Gathers, pro se, Rock Hill,
35                                                            SC.
36
 1   FOR DEFENDANT-APPELLEE TAN:                                  Joel Julian Java, Jr., Esq., Roach,
 2                                                                Brown, McCarthy & Gruber, P.C.,
 3                                                                Buffalo, NY.
 4   FOR DEFENDANTS-APPELLEES
 5   SAMUELSON, JIN, BERBARY, AND
 6   BLAISE-RONEY:                                                Victor Gerard Paladino, Assistant
 7                                                                Solicitor General, New York State
 8                                                                Office of the Attorney General,
 9                                                                Albany, NY.
10
11             Appeal from a judgment of the United States District Court for the Western District of
12   New York (Skretny, J.).
13             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
14   ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
15             Plaintiff-appellant Travis Gathers, proceeding pro se, appeals from the District Court’s
16   judgment adopting the recommendation of the magistrate judge (Schroeder, M.J.) and granting
17   summary judgment in favor of defendants-appellees with respect to Gathers’s 42 U.S.C.
18   § 1983 deliberate indifference claim. We assume the parties’ familiarity with the underlying
19   facts, the procedural history of the case, and the issues on appeal, to which we refer only as
20   necessary to explain our decision to affirm.
21             We review de novo a district court’s grant of summary judgment, with the view that
22   “[s]ummary judgment is appropriate only if the moving party shows that there are no genuine
23   issues of material fact and that the moving party is entitled to judgment as a matter of law.”
24   Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). On review, we must
25   resolve all ambiguities and draw all factual inferences in favor of the non-movant. Nationwide
26   Life Ins. Co. v. Bankers Leasing Assoc., 182 F.3d 157, 160 (2d Cir. 1999). Summary judgment is
27   appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find
28   for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
29   (1986).
30             The magistrate judge’s report, which the District Court adopted in full, identified two
31   independent bases for summary judgment in favor of defendants. First, the court found that


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 1   plaintiff’s constitutional claims were collaterally estopped by a judgment of the New York
 2   Court of Claims. Second, the court found that the evidence presented on summary judgment
 3   was insufficient to raise a genuine issue of material fact as to whether defendants were
 4   deliberately indifferent to plaintiff’s medical injury. We agree that plaintiff has not introduced
 5   sufficient evidence of deliberate indifference to allow this case to proceed to trial, and do not
 6   reach the question whether the Court of Claims judgment precludes further proceedings in
 7   federal court.
 8          To prove a claim of deliberate indifference against an individual defendant, a plaintiff
 9   must show that (1) “his medical condition is objectively a serious one,” and (2) “the defendant
10   acted with deliberate indifference to [his] medical needs.” Brock v. Wright, 315 F.3d 158, 162
11   (2d Cir. 2003). A defendant is deliberately indifferent if he “knows of and disregards an
12   excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
13   Deliberate indifference is “a state of mind that is the equivalent of criminal recklessness.”
14   Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
15          Assuming, as the magistrate judge did, that Gathers’s Achilles tendon injury is
16   objectively serious, we agree with the District Court that the evidence marshaled by Gathers
17   on summary judgment did not suffice to create a genuine issue as to whether any defendant
18   was deliberately indifferent to his medical needs. Gathers contends that defendant Tan acted
19   with deliberate indifference when he (1) discontinued Gathers’s Ultram prescription, (2)
20   removed his cast, (3) failed to refer him for infirmary care, (4) did not provide adequate pain
21   management or crutches, and (5) did not refer him to an orthopedic specialist. But Tan
22   submitted an affidavit from a medical expert, Dr. Paul LaPoint, who averred that Tan’s
23   treatment decisions constituted “appropriate management” of the Achilles tendon injury,
24   including pain management. Supp. App. 276-77. Relying on the report of an outside
25   orthopedist, Dr. LaPoint further stated that plaintiff’s tendon had fully healed. Supp. App.
26   277. Gathers failed to adduce any evidence to the contrary. In addition, as the District
27   Court observed, the record shows that Dr. Tan engaged in ongoing examination and
28   evaluation of Gathers’s condition throughout the relevant period. Absent any evidentiary

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1   support for Gathers’s position, the District Court was correct to grant summary judgment to
2   Tan.
3            Having failed to raise them in his brief on appeal, Gathers appears to have
4   abandoned his claims against defendants Jin, Samuelson, Berbary and Blaise-Roney, and so we
5   do not review the District Court’s conclusions with respect to those defendants.
6          We have considered all of Gathers’s arguments and find them to be without merit.
7   Accordingly, we AFFIRM the judgment of the District Court.
8                                             FOR THE COURT:
9                                             Catherine O’Hagan Wolfe, Clerk of Court




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