    09-0848-pr
    Ventura v. Sinha, et al.



                               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 11th day of May, two thousand ten.

    PRESENT:
              PIERRE N. LEVAL,
              BARRINGTON D. PARKER,
              ROBERT A. KATZMANN,
                        Circuit Judges.
    __________________________________________

    Jose A. Ventura,

                        Plaintiff-Appellant,

                        v.                                  09-0848-pr

    Dr. Sinha, Nurse Baccacio, Nurse Betty, E. Minardo,
    Program Committee, Sergeant Sullivan, Officer A.
    Miller, Officer G. Peperone, Officer Montanari,
    Officer M. Lessard,

                        Defendants-Appellees,

    Orleans Correctional Facility, Sally B. Johnson,
    Nurse Administrator Jane Doe, C.A. Preiss, Sergeant
    John Doe, Officer John Doe, Lieutenant MacFolling,

              Defendants.
    __________________________________________
FOR APPELLANT:        Jose A. Ventura, pro se, Rome, N.Y.

FOR APPELLEES:        Andrew M. Cuomo, Attorney General for the
                      State of New York; Barbara D. Underwood,
                      Solicitor General; Andrea Oser, Deputy
                      Solicitor General; Martin A. Hotvet,
                      Assistant Solicitor General (on the brief),
                      Albany, N.Y.


     Appeal from a judgment of the United States District Court

for the Western District of New York (Skretny, C.J.).

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED, in

part, and that the appeal be DISMISSED, in part, without

prejudice to reinstatement.

     Appellant Jose A. Ventura, pro se, appeals the district

court’s grant of the Defendants’ motion for summary judgment,

dismissing his 42 U.S.C. § 1983 claims against Edward Minardo and

Dr. Brij Sinha for deliberate indifference to a serious medical

need; the district court’s grant of the Defendants’ pre-trial

motion in limine; and the district court’s judgment, following a

jury trial, for the remaining Defendants on Ventura’s excessive

force claims.    We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.

I.   Summary Judgment

     Ventura does not challenge on appeal the district court’s

grant of summary judgment to defendants Baccacio and Fassio as to


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his deliberate indifference claims, or to Defendant Lessard as to

his excessive force claim arising from the December 14, 1999

incident.

     We review orders granting summary judgment de novo and focus

on whether the district court properly concluded that there was

no genuine issue as to any material fact and the moving party was

entitled to judgment as a matter of law.    See Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Republic

Nat’l Bank v. Delta Airlines, 263 F.3d 42, 46 (2d Cir. 2001).      In

determining whether there are genuine issues of material fact, we

are “required to resolve all ambiguities and draw all permissible

inferences in favor of the party against whom summary judgment is

sought.”    Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

     Even construing all the facts in Ventura’s favor, the record

shows that the district court properly granted summary judgment

to Minardo and Sinha as to Ventura’s claims for deliberate

indifference.   To establish an Eighth Amendment claim for medical

indifference, a plaintiff must prove that the defendant was

deliberately indifferent to a serious medical need.    See Farmer

v. Brennan, 511 U.S. 825, 834-35 (1994).   This standard consists

of two components: (1) “[o]bjectively, 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”; and (2) “[s]ubjectively, the charged official must act

with a sufficiently culpable state of mind[;] . . . something
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more than mere negligence,” and akin to criminal recklessness.

Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal

quotations omitted).    However, not every claim of inadequate

medical care made by a prisoner states a violation of the Eighth

Amendment.    See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d

Cir. 2006).    Indeed, we have observed that a disagreement with

the medical care provided is insufficient to state a

constitutional claim; “[t]he essential test is one of medical

necessity and not one simply of desirability.”    Dean v. Coughlin,

804 F.2d 207, 215 (2d Cir. 1986); 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.”).

       Here, Ventura’s deliberate indifference claim against

Minardo failed because there was no evidence that he acted with a

sufficiently culpable state of mind.    See Hathaway, 99 F.3d at

553.    The undisputed record shows that Minardo reasonably denied

Ventura’s request for a program change in September 1999 because

his medical limitations at that time were not inconsistent with

the requirements on participants in the Commercial Arts program.

Additionally, even if Ventura’s revised November medical

limitations slip should have been understood as barring him from

participating in that program, Minardo was never made aware of

these new limitations.    Thus, because the record shows that


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Minardo did not “know[] of and disregard[] an excessive risk to

[Ventura’s] health or safety,” summary judgment was appropriate

as to this claim.    Id.; see id. (“[T]he official must both be

aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

that inference.”).

     Summary judgment was also proper as to Ventura’s deliberate

indifference claim against Sinha.     Ventura argued below, and

continues to argue on appeal, that Sinha violated his Eighth

Amendment rights by failing to timely provide necessary medical

treatment—and, specifically, referral to an orthopedic

specialist—following the injuries he allegedly sustained on

November 9, 1999.    However, as the district court correctly

observed, Ventura’s examination by medical staff on that date

failed to reveal any injuries apart from a small scratch on his

forehead, and diagnostic tests and X-rays confirmed no remarkable

results.   Moreover, Ventura responded positively to the treatment

prescribed by Sinha, and Ventura failed to offer any evidence

disputing Sinha’s diagnosis of his medical condition, or showing

that the treatment he received was inadequate given his

condition.   Accordingly, because Ventura showed no more than that

he disagreed with the course of treatment he received, his

constitutional claim failed as a matter of law.    Summary judgment

was therefore appropriate.    See Chance, 143 F.3d at 703 (“So long


                                  5
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.”).

II.   Motion In Limine and the Jury Verdict

      Ventura challenges the district court’s grant of the

Defendants’ pre-trial motion in limine, barring him from

providing testimony on the cause of his injuries allegedly

resulting from an assault by the Defendants on November 9, 1999,

and, construing his brief broadly, appears to challenge the jury

verdict as to his excessive force claims against Defendants

Sullivan, Peperone, and Montanari.    We review a district court’s

evidentiary rulings for abuse of discretion, “and will reverse

only if an erroneous ruling affected a party’s substantial

rights.”   Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d

Cir. 2005).

      However, under Federal Rule of Appellate Procedure 10(b),

within 10 days after the filing of a notice of appeal, the

appellant must either (1) order transcripts from any proceedings

that are necessary to the appeal from the reporter and file such

order with the district court; or (2) file a certificate stating

that no transcript will be ordered.   In the past, we have

dismissed appeals of issues related to a jury trial where

appellant failed to provide a trial transcript.    See Wrighten v.

Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (dismissing the portion


                                 6
of the appeal challenging post-trial findings because transcripts

from those proceedings were not provided); Gayle v. Walker, 148

F.3d 214, 214 (2d Cir. 1998) (dismissing pro se appeal without

prejudice to reinstatement for failure to file transcripts).    In

those cases, we explained that the failure to provide relevant

transcripts deprives us of the ability to conduct meaningful

appellate review.   See, e.g., Wrighten, 232 F.3d at 120.

     Here, we cannot determine whether the district court abused

its discretion by granting the Defendants’ motion in limine

without reviewing the transcript from the January 9, 2009 hearing

on that motion.   Similarly, to the extent Ventura challenges any

aspect of the jury verdict, we cannot review that claim of error

absent a complete trial transcript.   Accordingly, given the lack

of transcripts, Ventura’s appeal from the district court’s grant

of the Defendants’ motion in limine and the jury verdict is

DISMISSED, without prejudice to reinstatement, provided that,

within 30 days of the date of this order, Ventura provides this

Court with: (1) the transcript; (2) proof that he has ordered the

transcript; or (3) proof that he has moved in the district court

for a free trial transcript under 28 U.S.C. § 753(f).*   See


     *
      Under 28 U.S.C. § 753(f), “[f]ees for transcripts
furnished in . . . proceedings to persons permitted to appeal in
forma pauperis shall . . . be paid by the United States if the
trial judge or a circuit judge certifies that the appeal is not
frivolous (but presents a substantial question).” Thus, to the
extent Ventura moves for free transcripts in the district court
pursuant to this statute, he must satisfy this standard.

                                 7
Gayle, 148 F.3d at 214.   Upon timely filing of a transcript in

the record on appeal, the appeal will be reinstated.   While

Ventura previously sought transcripts under 28 U.S.C. § 753(f) in

the district court, he did not describe the “substantial

questions” he intended to raise on appeal.   If he wishes to

obtain free transcripts from the district court, he must file a

second motion under 28 U.S.C § 753(f) setting out the trial-

related claims described above.

     For the foregoing reasons, the judgment of the district

court is hereby AFFIRMED, and the appeal is DISMISSED, in part,

without prejudice to reinstatement.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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