    16-3834-pr (L)
    Brown v. Cade
                           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 10th day of October, two thousand seventeen.

    PRESENT: REENA RAGGI,
               PETER W. HALL,
               SUSAN L. CARNEY,
                     Circuit Judges.
    _____________________________________

    JAMES BROWN,
                          Plaintiff-Appellant,

                     v.                                                   Nos. 16-3834-pr (L),
                                                                          16-3930-pr (Con)
    BETH CADE, N. SHARP, DR. JADOW RAO,
    R. KILLINGER, DR. ABBESSY,
                     Defendants-Appellees.
    _____________________________________

    FOR APPELLANT:                                   James Brown, pro se, Stormville, New
                                                     York.

    FOR APPELLEES:                                   Barbara D. Underwood, Solicitor
                                                     General, Victor Paladino, Jennifer L.
                                                     Clark, Assistant Solicitors General, for
                                                     Eric T. Schneiderman, Attorney General
                                                     of the State of New York, Albany, New
                                                     York.

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       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 of the district court entered on October 18, 2016, is

AFFIRMED.

       Pro se plaintiff James Brown appeals from an award of summary judgment to the

defendants on his Eighth Amendment claim of deliberate indifference to medical needs

while incarcerated at the Attica Correctional Facility. See 42 U.S.C. § 1983. We review

a grant of summary judgment de novo, and will affirm only if the record, viewed in the

light most favorable to the non-movant, “‘shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’” Sousa v.

Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). “[C]onclusory

allegations or denials,” however, “cannot by themselves create a genuine issue of material

fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.

2010) (internal quotation marks omitted). In applying these principles here, we assume

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

issues on appeal, which we reference only as necessary to explain our decision to affirm for

substantially the reasons stated by the district court.1


1
  Although the record does not reflect that Brown received notice of the nature and
consequences of summary judgment as required by Vital v. Interfaith Medical Center, 168


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       To establish an Eighth Amendment violation based on inadequate medical care, a

prisoner must adduce evidence showing that (1) he “was actually deprived of adequate

medical care,” (2) “the alleged deprivation . . . [was] sufficiently serious,” and

(3) defendants acted with deliberate indifference to the inmate’s health needs. Salahuddin

v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006) (internal quotation marks omitted).

       Here, as the district court correctly determined, the record evidence shows that

defendants provided adequate medical treatment for Brown’s back and leg pains and for

Hepatitis C, based on their professional judgment. Although Brown may have preferred

different treatment, it is well-established that “[s]o long as the treatment given is

adequate,” “mere disagreement over the proper treatment does not create a constitutional

claim.” Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (internal quotation marks

omitted). Notably, the evidence shows that defendants’ decision not to provide Brown

with the addictive pain medication Ultram in pill form—the specific treatment that he

wanted—was supported by legitimate reasons, including that it was contra-indicated for

Brown’s liver condition and that defendant Dr. Rao recognized Brown as exhibiting

drug-seeking behavior. See id. at 122–23 (concluding that officials were not deliberately


F.3d 615, 620–21 (2d Cir. 1999), his summary judgment opposition demonstrates that he
understood the nature and consequences of summary judgment, see Sawyer v. Am. Fed’n of
Gov’t Emps., AFL-CIO, 180 F.3d 31, 35–36 (2d Cir. 1999) (holding that we assess
“whether from all of the circumstances, including the papers filed by the pro se litigant, it is
reasonably apparent that the litigant understood the nature of the adversary’s summary
judgment motion and the consequences of not properly opposing it”).


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indifferent to medical needs of prisoner who wanted stronger pain medication).

Accordingly, because the record would not permit a reasonable trier of fact to find that

defendants were deliberately indifferent to Brown’s medical needs, summary judgment

was correctly entered in favor of defendants.

      We have considered Brown’s remaining arguments and conclude that they are

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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