    14-2245
    Rodriguez v. Manenti


                                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 July, two thousand fifteen.

    Present:    ROSEMARY S. POOLER,
                RAYMOND J. LOHIER, JR.,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Jaime Rodriguez,

                    Plaintiff-Appellee,

                    v.                                                         14-2245

    John Manenti, D.O., BOP Northeast Regional
    Medical Director,

                    Defendant-Appellant,

    Federal Bureau of Prisons, Jane/John Does,
    members of the Northeast Region Utilization
    Committee, Federal Bureau of Prisons, in their
    individual and official capacities, J.L. Norwood,
    Northeast Regional Director, Federal Bureau of
    Prisons, individually and officially, Harrell Watts,
    National Inmate Appeals Administrator, Federal
    Bureau of Prisons, in his individual and official
    capacities, Hyosim Seon-Spada, BOP Nurse
    Practioner,

                    Defendants.
_____________________________________

FOR DEFENDANT-APPELLANT:                              Robert D. Kamenshine (Barbara L. Herwig,
                                                      on the brief), for Joyce R. Branda, Acting
                                                      Assistant Attorney General, United States
                                                      Department of Justice, Washington, D.C.

FOR PLAINTIFF-APPELLEE:                               Jaime Rodriguez, pro se, Fort Dix, N.J.


       Appeal from an order of the United States District Court for the Northern District of New
York (Kahn, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court be and it hereby is AFFIRMED.

        Defendant-Appellant John Manenti appeals from the April 24, 2014 order of the United
States District Court for the Northern District of New York (Kahn, J.), denying his motion for
summary judgment on the basis of qualified immunity. Plaintiff-Appellee Jaime Rodriguez filed
a complaint against Defendant, under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), alleging that Defendant denied him surgery necessary to
alleviate chronic pain and a serious limitation of mobility caused by a knee injury he had
previously sustained as a result of a gunshot wound. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

         Although this Court generally lacks jurisdiction to consider a denial of summary
judgment, we may review a district court’s order denying a motion for summary judgment on
qualified immunity grounds “to the extent the denial turns on an issue of law.” Terebesi v. Torreso,
764 F.3d 217, 229 (2d Cir. 2014) (internal quotation marks omitted). “Where factual disputes
persist, we may exercise appellate jurisdiction only for the limited purpose of deciding whether, on
the basis of stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts
favorable to the plaintiff that the trial judge concluded the jury might find, the immunity defense is
established as a matter of law.” Id. (internal quotation marks omitted). “The burden of establishing
that no genuine issue of material fact exists rests with the defendant[ ], the moving party.”
LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). “Within these constraints, our review is de
novo.” Terebesi, 764 F.3d at 229 (internal quotation marks omitted).

         “Qualified immunity protects public officials from liability for civil damages when one
of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or
(b) it was objectively reasonable for the defendant to believe that his action did not violate such
law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks
omitted). Neither party disputes that, at the time of the alleged violation, it was clearly
established that to succeed on a claim for the unconstitutional denial of medical care, “it is enough
for the prisoner to show deliberate indifference to serious medical needs.” Hathaway v.
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Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). “[T]he question remains whether the contours of the
right were sufficiently clear that a reasonable official would understand that what he did violates
that right.” LaBounty, 137 F.3d at 74 (internal quotation marks and alterations omitted).
Accordingly, we address only whether “the evidence is such that, even when it is viewed in the
light most favorable to the plaintiff[ ] and with all permissible inferences drawn in [his] favor, no
rational jury could fail to conclude that it was objectively reasonable for the defendant[ ] to believe
that [he was] acting in a fashion that did not violate a clearly established right.” Williams v.
Greifinger, 97 F.3d 699, 703 (2d Cir. 1996).

        A serious medical need exists where “the failure to treat a prisoner’s condition could
result in further significant injury or the unnecessary and wanton infliction of pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks omitted). Although
“[t]here is no settled, precise metric to guide a court in its estimation of the seriousness of a
prisoner’s medical condition,” this Court has referred to a non-exhaustive list of factors, including:
“(1) whether a reasonable doctor or patient would perceive the medical need in question as
important and worthy of comment or treatment, (2) whether the medical condition significantly
affects daily activities, and (3) the existence of chronic and substantial pain.” Brock v. Wright,
315 F.3d 158, 162 (2d Cir. 2003) (internal quotation marks omitted).

        Defendant argues that a reasonable official would not have realized that Plaintiff’s knee
injury constituted a serious medical need because district courts in this Circuit have found that the
denial or delay of treatment for allegedly similar knee injuries did not violate (or clearly violate) an
inmate’s Eighth Amendment rights. This argument runs “afoul of this Court’s recognition that ‘a
court need not have passed on the identical course of conduct in order for its illegality to be
clearly established.’” LaBounty, 137 F.3d at 74 (alteration omitted) (quoting Greifinger, 97 F.3d
at 703)). In particular, this Court does not analyze Eighth Amendment claims for the deprivation
of medical care according to body parts. See, e.g., Chance, 143 F.3d at 702 (“Of course, not all
claims regarding improper dental care will be constitutionally cognizable. Dental conditions, like
other medical conditions, may be of varying severity.”).

        Under Plaintiff’s version of the facts, Defendant was aware that Plaintiff’s knee injury
caused him chronic pain and that intermittent knee locking led to a periodic inability to walk.
Plaintiff also produced evidence that Defendant denied or delayed surgery approval for over a
year after learning that Plaintiff’s treating physician, at least, recommended surgery to alleviate
Plaintiff’s symptoms. At the time of the alleged violation, it was clearly established that “that the
Eighth Amendment forbids not only deprivations of medical care that produce physical torture
and lingering death, but also less serious denials which cause or perpetuate pain.” Brock, 315
F.3d at 163 (internal quotation marks omitted) (rejecting the proposition that “only ‘extreme
pain’ or a degenerative condition would suffice to meet the legal standard” for a “serious medical
condition”). Taking the record in the light most favorable to Plaintiff, we therefore conclude that
a reasonable juror might find that a reasonable official would have realized that denying
Plaintiff’s surgery request would “cause or perpetuate [his] pain” for an intolerably long period.
Id. (quoting Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977)); see also Hathaway, 841 F.2d at
50–51 (holding inmate who alleged “delay of over two years in arranging surgery to correct the
                                                   3
broken pins in his hip” raised factual dispute sufficient to survive summary judgment as to whether
defendant was deliberately indifferent to his serious medical needs); Salahuddin v. Goord, 467
F.3d 263, 281 (2d Cir. 2006) (presuming that five-month delay of liver biopsy was “objectively
serious” where plaintiff put forth evidence that he suffered pain during that period).

        An official acts with deliberate indifference when he “knows of and disregards an
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “It is
well-established that mere disagreement over the proper treatment does not create a
constitutional claim.” Chance, 143 F.3d at 703. “However, while ‘mere medical malpractice’ is
not tantamount to deliberate indifference,” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996), “a physician may be deliberately indifferent if he or she consciously chooses ‘an easier
and less efficacious’ treatment plan,” Chance, 143 F.3d at 703 (internal quotation marks
omitted); see also Brock, 315 F.3d at 167 (holding that the “conscious choice . . . to prescribe
easier and less efficacious treatment plans for prisoners” that “will likely cause pain and other
medical problems . . . violates the Eighth Amendment” (internal quotation marks and alterations
omitted)). We have also held “that a deliberate indifference claim can lie where prison officials
deliberately ignore the medical recommendations of a prisoner’s treating physicians.” Johnson v.
Wright, 412 F.3d 398, 404 (2d Cir. 2005); see also Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.
1987) (“Prison officials are more than merely negligent if they deliberately defy the express
instructions of a prisoner’s doctors.”). “Whether a course of treatment was the product of sound
medical judgment, negligence, or deliberate indifference depends on the facts of the case.”
Chance, 143 F.3d at 703.

        The district court properly ruled that a rational factfinder could find that Defendant did
subjectively know of, and disregard, an excessive risk to Plaintiff’s health by denying his surgery
request. Plaintiff presented evidence that Defendant knowingly acted contrary to the
recommendation of the orthopedic surgeon to whom the Bureau of Prison had referred Plaintiff,
instead “reflexively relying” on what Plaintiff alleges was a misinterpretation of the prison’s own
InterQual Guidelines. Johnson, 412 F.3d at 406. Accepting Plaintiff’s reading of the InterQual
Guidelines, as we must at this juncture, Defendant has failed to offer anything but his ipse dixit
to show that his denial of Plaintiff’s surgery request was the result of independent medical
judgment. This Court’s prior decision in Johnson informed Defendant that he could be held
liable for deliberate indifference to Plaintiff’s serious medical need where: (1) Plaintiff’s treating
physician advised him that surgery “was the medically appropriate course of treatment”;
(2) there was “conflicting evidence” concerning whether denying Plaintiff surgery “was, in fact,
medically justifiable”; and (3) Defendant did not take steps to verify that “it would be medically
appropriate to ignore” the advice of Plaintiff’s treating physician. Id. at 404.

        Defendant argues that his denial of surgery constituted a mere disagreement among
medical professionals because (1) it was reasonable to require Plaintiff to exhaust more
conservative treatment options; (2) the prison’s InterQual Guidelines called for six weeks of
physical therapy before surgery might be considered; and (3) Defendant did not reflexively rely on
the InterQual Guidelines in denying Plaintiff’s surgery request. A jury evaluating the record
evidence could determine that Defendant’s recommendation of physical therapy was reasonable
                                               4
or, at most, negligent. However, on appeal from the denial of qualified immunity, the evidence
must be viewed in the light most favorable to Plaintiff. Examined this way, a jury could agree with
Plaintiff that the InterQual Guidelines actually supported surgery given Plaintiff’s particular
condition—an unstable meniscus tear producing locking of the knee, along with an MRI revealing
the presence of a foreign object. A reasonable juror could further conclude that medical
professionals would find it obvious that the InterQual Guidelines on which Defendant purports to
have relied were inapplicable to Plaintiff’s condition and physical therapy therefore would not
provide medically appropriate treatment. Under such circumstances, a jury might draw
significance from Defendant’s initial failure to provide any explanation for rejecting Plaintiff’s
request for surgery and determine that this denial did not amount to a mere difference of medical
opinion.

        We have considered the remainder of Defendant’s arguments and find them to be without
merit. Finding that the record discloses unresolved issues of fact, the order of the district court is
hereby AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O=Hagan Wolfe, Clerk




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