     08-1772-pr
     Victor v. Milcevic

 1                                       UNITED STATES COURT OF APPEALS
 2                                          FOR THE SECOND CIRCUIT

 3                                                SUMMARY ORDER
 4           Rulings by summary order do not have precedential effect. Citation to a summary order
 5   filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
 6   Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
 7   filed with this court, a party must cite either the Federal Appendix or an electronic database
 8   (with the notation “summary order”). A party citing a summary order must serve a copy of it
 9   on any party not represented by counsel.

10          At a stated term of the United States Court of Appeals for the Second Circuit, held at
11   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
12   York, on the 19th day of January, two thousand and ten.

13   PRESENT:

14             JOSÉ A. CABRANES,
15             ROSEMARY S. POOLER,
16             GERARD E. LYNCH ,
17                    Circuit Judges.
18
19   -------------------------------------------x

20   HERMAN VICTOR ,

21                                  Plaintiff-Appellant,

22             v.                                                                               No. 08-1772-pr

23   RAELENE MILICEVIC , M.D., RICHARD LAUX , Physician’s
24   Assistant, JOHN BURGE , Superintendent,

25                                  Defendants-Appellees.

26   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

27   FOR APPELLANT:                                       Herman Victor, pro se, Malone, NY.

28   FOR APPELLEE:                                        Andrew M. Cuomo, Attorney General of the State of New York
29                                                        (Barbara D. Underwood, Solicitor General, Nancy A. Spiegel
30                                                        and Owen Demuth, Assistant Solicitor Generals, on the brief),
31                                                        Albany, NY.

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 1           Appeal from a March 31, 2008 judgment of the United States District Court for the Northern
 2   District of New York (Frederick J. Scullin, Judge).

 3        UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 4   AND DECREED that the judgment of the District Court is AFFIRMED.

 5           New York State prisoner Herman Victor, pro se, appeals from a decision of the District Court
 6   granting summary judgment to defendants on Victor’s claims under 42 U.S.C. § 1983 alleging deliberate
 7   indifference to his serious medical needs in violation of the Eighth Amendment and retaliation in
 8   violation of the First Amendment. We assume the parties’ familiarity with the underlying facts, the
 9   procedural history of the case, and the issues raised on appeal.

10           We review the grant of summary judgment de novo, asking whether the district court properly
11   concluded that there were no genuine issues of material fact and that the moving party was entitled to
12   judgment as a matter of law. See, e.g., Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
13   2003). In determining whether there are genuine issues of material fact, we resolve any ambiguities and
14   draw all permissible factual inferences in favor of the non-movant. See Terry v. Ashcroft, 336 F.3d 128,
15   137 (2d Cir. 2003). Despite this deference, a non-movant cannot defeat a motion for summary
16   judgment merely through conclusory statements or allegations. See Davis v. State of New York, 316 F.3d
17   93, 100 (2d Cir. 2002).

18   I.      Deliberate Indifference

19            To substantiate an Eighth Amendment claim for medical indifference, a plaintiff must prove
20   that the defendant was deliberately indifferent to a serious medical need. See Farmer v. Brennan, 511 U.S.
21   825, 834 (1994). Deliberate indifference has two necessary components, one objective and the other
22   subjective. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Objectively, the deprivation must
23   be “sufficiently serious,” creating a risk of “death, degeneration, or extreme pain.” Id. Subjectively, the
24   official must have the requisite state of mind, which is the “equivalent of criminal recklessness.” Id.
25   Generally, “mere allegations of negligent malpractice do not state a claim of deliberate indifference.”
26   Id.

27            The Supreme Court has explained that “[m]edical malpractice does not become a constitutional
28   violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In Estelle,
29   the plaintiff asserted that prison medical personnel failed to diagnose and treat his back injury and
30   advanced a number of alternative treatments that were not pursued. See id. at 107. The Court noted
31   that medical decisions such as whether or not to order X-rays or other “diagnostic techniques” do not
32   rise to the level of cruel and unusual punishment but are, at most, indicative of medical malpractice. Id.

33           Here, the District Court properly determined that Victor had submitted insufficient evidence
34   for a reasonable fact-finder to conclude that Dr. Milicevic provided constitutionally inadequate
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 1   treatment to Victor. First, the record revealed that, contrary to Victor’s contention, Dr. Milicevic did
 2   see and treat Victor after he complained of back pain from a fall. Moreover, here, as in Estelle, the
 3   failure to order an MRI of Victor’s back did not rise to the level of deliberate indifference. See id. Dr.
 4   Milicevic saw Victor on a number of occasions, and she stated that she had prescribed him
 5   medications, approved laboratory testing, and given orders restricting his physical activity. Whether to
 6   order an MRI or similar diagnostic treatments “is a classic example of a matter for medical judgment,”
 7   id. at 107, and where the treatment provided is responsive to the prisoner’s condition, which Dr.
 8   Milicevic’s treatment was, “the fact that a prisoner might prefer different treatment does not give rise
 9   to an Eighth Amendment violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
10   Second, as to Victor’s allegation that Dr. Milicevic cancelled his physical therapy appointments after
11   only one visit, the record clearly revealed that Victor’s refusal to attend his appointments on three
12   occasions led to the eventual cancellation of his physical therapy. Finally, to the extent that Victor now
13   asserts in this Court that Dr. Milicevic did not treat his HIV or Hepatitis C, this argument was not
14   raised below and, as a result, cannot be brought for the first time on appeal. See, e.g., In re Flanagan, 503
15   F.3d 171, 182 (2d Cir. 2007) (explaining that we generally do “not consider arguments raised for the
16   first time on appeal,” especially where additional factfinding is necessary).

17            The District Court also correctly concluded that Victor failed to demonstrate that Laux was
18   deliberately indifferent to his serious medical needs because the ten-month delay in receiving a liver
19   biopsy was the result of Laux’s belief that Victor did not meet the Department of Correctional
20   Services’ (“DOCS”) criteria for such a procedure. Moreover, the delay was due to conflicting opinions
21   from consulting doctors on the proper course of treatment; once the doctors were in agreement that a
22   liver biopsy was safe, such a biopsy was ordered and performed. Victor now claims on appeal that
23   Laux (1) failed to treat his back pain and (2) failed to treat his HIV and Hepatitis C. There is, however,
24   only one reasonable interpretation of the record: Laux, in fact, adequately treated his back pain by
25   prescribing pain medication, providing orders restricting his walking and climbing stairs, and ordering
26   orthopedic consultations. Victor’s HIV and Hepatitis C were also adequately treated, as Victor was
27   seen by at least three doctors—two of whom were specialists—regarding his Hepatitis C and at least
28   one doctor specializing in infectious diseases regarding both his Hepatitis C and HIV. Accordingly, the
29   District Court correctly granted defendants’ motion for summary judgment as to Victor’s claims for
30   deliberate indifference.




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 1   II.     Retaliation

 2            To show retaliation in violation of the First Amendment, a plaintiff must demonstrate that
 3   constitutionally protected conduct was a substantial or motivating factor for a prison official’s adverse
 4   action. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003). Here, Victor failed to state a retaliation claim,
 5   as Victor did not establish that there was a causal connection between his filing a grievance and a ten-
 6   month delay in receiving a liver biopsy. Indeed, as discussed above, the evidence supports Laux’s
 7   contention that he did not order the biopsy because (1) he believed Victor did not meet DOCS criteria
 8   and (2) consulting doctors had conflicting opinions on the course of treatment. The alleged adverse
 9   action, therefore, was justified. See id. at 138. To the extent that Victor asserts on appeal that Laux also
10   retaliated against him by failing to order an MRI of his back, this contention is without merit, as the
11   record demonstrates that Laux, in fact, requested an MRI of Victor’s spine in 2003. Therefore, the
12   District Court correctly granted summary judgment to Laux as to Victor’s retaliation claim.
13
14                                                CONCLUSION

15          We have reviewed all of Victor’s arguments on appeal and found each of them to be without
16   merit. For the reasons stated above, the March 31, 2008 judgment of the district court is
17   AFFIRMED.


18                                                   FOR THE COURT,
19                                                   Catherine O’Hagan Wolfe, Clerk of Court

20                                                   By _______________________________




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