16-1034 Washington v. Artus

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of September, two thousand seventeen.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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DONALD WASHINGTON, Plaintiff‐Appellant,

v. 16‐1034‐pr

DALE ARTUS, MIKE SEDAR, LISA LAPENNA, NANCY LIAS, WILLIAM SCOTT, & PETER NIGRO,

Defendants‐Appellees.*

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* The Clerk of Court is respectfully directed to amend the official caption to conform to the above.

FOR PLAINTIFF‐APPELLANT: Donald Washington, pro se, Alden, New York.

FOR DEFENDANTS‐APPELLEES: Frederick A. Brodie, Assistant Solicitor General, Barabara D. Underwood, Solicitor General, Victor Paladino, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York.

Appeal from a judgment of the United States District Court for the Western

District of New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Donald Washington, a prisoner proceeding pro se,

appeals the judgment of the district court entered February 29, 2016, in favor of various

prison officials and nurses of the Wende Correctional Facility, dismissing his complaint

alleging claims for unconstitutional conditions of confinement and deliberate

indifference to his serious medical needs, pursuant to

. By Decision and

Order dated February 25, 2016, the district court granted defendantsʹ motion for

summary judgment, adopting the Report and Recommendation of United States

Magistrate Judge Hugh B. Scott, and denied Washingtonʹs motion for reconsideration of

the courtʹs earlier denial of his motion for the appointment of counsel. We assume the

partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.

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This matter arises from a slip‐and‐fall incident that occurred while

Washington was working in the prison mess hall. Washington alleges that he was

forced to work in unsafe conditions ‐‐ on a slippery floor ‐‐ which resulted in his

breaking his ankle. He also alleges that the medical department took four hours to send

him to the emergency room for treatment and subsequently denied him proper pain

medication.

We review de novo the district courtʹs grant of summary judgment, with the

view that ʺ[s]ummary judgment is appropriate when there is ʹno genuine dispute as to

any material factʹ and the moving party is ʹentitled to judgment as a matter of law.ʹʺ

Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Commʹn,

(2d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). ʺThere is no ʹgenuineʹ dispute when ʹthe

record taken as a whole could not lead a rational trier of fact to find for the non‐moving

party.ʹʺ

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)). Upon review, we conclude that the district court correctly granted defendantsʹ

motion for summary judgment and affirm for substantially the reasons stated by the

district court and set forth in the Magistrate Judgeʹs Report and Recommendation.

I. Conditions of Confinement

To prevail on an Eighth Amendment challenge to conditions of

confinement, a plaintiff must prove that ʺ(1) objectively, the deprivation the inmate

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suffered was sufficiently serious that he was denied the minimal civilized measure of

lifeʹs necessities, and (2) subjectively, the defendant official acted with a sufficiently

culpable state of mind, such as deliberate indifference to inmate health or safety.ʺ

Walker v. Schult,

(2d Cir. 2013) (internal quotation marks and alteration

omitted). We conclude that Washington failed to raise a genuine issue of fact as to

either element.

Washington failed to present evidence sufficient to raise an issue of fact as

to whether the wet mess hall floor objectively posed a sufficient risk of inmate harm.

Although he asserts in his appellate brief that the wet floor had resulted in prior

accidents causing serious injuries to other inmates, he presented no such evidence

below. He testified only that other inmates had ʺtripped over like holes in the floors

and stuff like that.ʺ Appʹx 41. But even assuming this included slip‐and‐fall incidents,

Washington proffered no evidence that the prior incidents led to any injuries, much less

that the wet mess hall floor posed the type of risk that society considers ʺto be so grave

that it violates contemporary standards of decency to expose anyone unwillingly to such

a risk.ʺ See Helling v. McKinney,

(1993).

Washington also failed to present evidence from which a reasonable jury

could find that prison officials subjectively acted with the culpable state of mind

necessary for an Eighth Amendment violation. Although he contends on appeal, and

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contended in his unsworn summary judgment papers, that he and other inmates had

repeatedly warned prison officials about the dangers posed by the wet mess hall floor,

he provided only conclusory assertions and no details or specifics. Further, even if

Washington could demonstrate that the defendants were generally aware of the slippery

condition of the mess hall floor, he proffered no evidence from which a reasonable jury

could infer that the condition posed a risk of significant inmate harm and that the

defendants intentionally disregarded that risk. See Farmer v. Brennan,

(1994) (ʺ[T]he [defendants] must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and [they] must also draw the

inference.ʺ). We agree with the district court that Washingtonʹs claim sounds at most in

negligence, not deliberate indifference: deliberate indifference requires a showing of a

ʺwantonnessʺ that is lacking here. See Wright v. Goord,

(2d Cir. 2009).

II. Serious Medical Needs

To prevail on a claim for deliberate indifference to an inmateʹs serious

medical needs, a plaintiff must prove that (1) objectively, the alleged deprivation of

medical care was ʺsufficiently serious,ʺ and (2) subjectively, that the defendants acted or

failed to act ʺwhile actually aware of a substantial risk that serious inmate harm will

result.ʺ Salahuddin v. Goord,

, 279‐80 (2d Cir. 2006). Washington argues

that the defendants were deliberately indifferent to his serious medical needs in two

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ways: first, by unreasonably delaying medical treatment after his slip‐and‐fall accident

and, second, by later giving him insufficiently strong pain medication.

First, Washington argues that the defendants demonstrated deliberate

indifference to his broken ankle by allowing four hours to pass before transporting him

to the emergency room. We conclude, however, that the record does not contain

sufficient evidence to permit a reasonable jury to find a sufficiently serious deprivation

of medical treatment or deliberate indifference. The defendants carried Washington on

a stretcher to the infirmary soon after the incident, treated his broken ankle with a splint

and ice, and arranged to have him transported to the emergency room after consulting

with an outside doctor. Although Washington complains on appeal that the defendants

should have provided him with pain medication at the infirmary, he testified that he did

not request any. Further, Washington proffered no evidence, nor did he even allege,

that any delay exacerbated his injury. See Smith v. Carpenter,

(2d Cir.

2003). On this record, no reasonable jury could find that the approximately four hours

that elapsed between his injury and his arrival at the emergency room was a sufficiently

serious deprivation of medical care or that the defendants were deliberately indifferent

to his needs during that period.

Second, Washington argues that the defendants demonstrated deliberate

indifference to his pain by discontinuing his prescription‐strength pain reliever. Again,

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we conclude that Washington failed to present evidence sufficient to raise an issue of

fact. Washington was initially prescribed Percocet before and after his surgery. When

he requested that he be transferred from the prison infirmary back to his regular cell, he

was informed that he would no longer have access to prescription‐strength painkillers,

and he chose to be discharged anyway. And although he contends that the Tylenol and

Motrin the defendants prescribed him afterward was insufficient to treat his pain, the

record is clear that he did not thereafter complain of any significant pain. See Chance v.

Armstrong,

(2d Cir. 1998) (ʺIt is well‐established that mere disagreement

over the proper treatment does not create a constitutional claim.ʺ).1 Accordingly, we

conclude that the district court properly granted summary judgment to the defendants

on Washingtonʹs serious‐medical‐needs claims.

III. Appointment of Counsel

We review the denial of appointment of counsel for abuse of discretion.

See Hodge v. Police Officers,

(2d Cir. 1986). As Washington concedes, he

was required to make ʺa threshold showing of some likelihood of meritʺ to have counsel

appointed. See Cooper v. A. Sargenti Co.,

(2d Cir. 1989) (per curiam).

Although the magistrate judge initially appointed pro bono counsel, who subsequently

withdrew due to a conflict of interest, by the time the magistrate judge revisited the

1 On one occasion, Washington complained only of an itchy left foot, left ankle discomfort, and stomach discomfort. 7

issue, he had reviewed the summary judgment evidence and correctly concluded that

Washingtonʹs claims lacked merit. Accordingly, we conclude that the denial of

appointment of new pro bono counsel was not an abuse of discretion.

. . .

We have considered Washingtonʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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