20-595 Michalski v. Ruiz

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 2nd day of February, two thousand twenty-one.

PRESENT: Debra Ann Livingston, Chief Judge, José A. Cabranes, Gerard E. Lynch, Circuit Judges. _____________________________________

Marco A. Michalski,

Plaintiff-Appellant,

v. 20-595

Ricardo Ruiz, Doctor, Samuel Berkowitz, Doctor,

Defendants-Appellees.* _____________________________________

FOR PLAINTIFF-APPELLANT: Marco A. Michalski, pro se, Somers, CT.

* The Clerk of Court is respectfully directed to amend the caption as set forth above.

1 FOR DEFENDANTS-APPELLEES: James W. Donohue, Assistant Attorney General, for William Tong, Attorney General for the State of Connecticut, Hartford, CT.

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

(Bolden, J.; Garfinkel, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Marco A. Michalski (“Michalski”), pro se and incarcerated, sued

Defendants-Appellees Dr. Ricardo Ruiz (“Dr. Ruiz”), a prison physician, and Dr. Samuel

Berkowitz (“Dr. Berkowitz”), 2 a consulting podiatrist, under

for violating his

Eighth Amendment rights, alleging that they were deliberately indifferent to his foot pain and

congenital foot deformities. The district court granted the doctors’ motion for summary

judgment, concluding that there was no evidence in the record from which a reasonable jury could

find that the doctors acted with deliberate indifference. Michalski appeals. We assume the

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

* * *

We review orders granting summary judgment de novo, construing all evidence and

drawing all reasonable inferences in favor of the non-moving party. Sotomayor v. City of New

York,

(2d Cir. 2013) (per curiam). Summary judgment is appropriate when

2 Dr. Berkowitz’s name was spelled “Burkowitz” in the original case caption and in some filings, but it appears from the record that the correct spelling is “Berkowitz.”

2 there is no genuine dispute as to any material fact and the moving party is entitled to judgment as

a matter of law.

To prevail on an Eighth Amendment claim for deliberate indifference to medical needs, a

plaintiff must meet two requirements. Salahuddin v. Goord,

(2d Cir. 2006).

The first requirement is objective: the plaintiff must demonstrate that she “was actually deprived

of adequate medical care” and that “the inadequacy in medical care is sufficiently serious.”

at

279–80. The second requirement is subjective: the plaintiff must show that the defendant acted

or failed to act with deliberate indifference, “a mental state equivalent to subjective recklessness,

as the term is used in criminal law.”

. In other words, the plaintiff must show that the

defendant acted or failed to act “while actually aware of a substantial risk that serious inmate harm

will result.”

This “entails more than mere negligence; the risk of harm must be substantial

and the official’s actions more than merely negligent.”

Thus, an Eighth Amendment

violation does not arise from “the mere malpractice of medicine in prison,” including “a delay in

treatment based on a bad diagnosis.” Harrison v. Barkley,

(2d Cir. 2000).

Even assuming arguendo that Michalski can satisfy the objective requirement, we affirm

because we agree with the district court that Michalski fails to meet the subjective requirement as

to either Dr. Ruiz or Dr. Berkowitz. Michalski did not adduce evidence, apart from his own

speculation, that either doctor acted or failed to act while aware of a substantial risk that serious

harm would result. See Salahuddin,

. With respect to Dr. Ruiz, Michalski

suggested in his declaration that Dr. Ruiz provided him inserts that were the wrong size and that

he disagreed with Dr. Ruiz as to the proper course of treatment. This conduct, at most, qualifies

as negligence, which is insufficient to establish deliberate indifference. See Harrison,

3 at 138–39. Moreover, “[i]t is well-established that mere disagreement over the proper treatment

does not create a constitutional claim.” Chance v. Armstrong,

(2d Cir. 1998).

Contrary to Michalski’s claims regarding Dr. Ruiz’s failure to treat him, the record shows that Dr.

Ruiz met with Michalski at several appointments, examined him, noted his history of pes planus

that had been treated with bilateral steroid injections and corrective shoes, and prescribed treatment

in the form of corrective inserts.

With respect to Dr. Berkowitz, Michalski emphasizes that Dr. Berkowitz formed several

different impressions regarding the cause of his pain. To be sure, the record shows that Dr.

Berkowitz changed his impression of Michalski’s condition at several junctures throughout the

course of his treatment of Michalski: At Michalski’s June 2017 visit, Dr. Berkowitz examined

Michalski and opined that his arch contours appeared normal and that he did not appear to be in

severe pain, though he may have been having attacks of gout. In February 2018, Dr. Berkowitz

noted Michalski’s medical history and pre-incarceration treatment with a corrective shoe,

reexamined Michalski, and opined that he had synovitis of the right subtalar joint. And in April

2018, Dr. Berkowitz again reexamined Michalski, opined that Michalski had bilateral plantar

fasciitis, and prescribed arch supports and plantar fascia stretching. But the record contains no

evidence, apart from Michalski’s speculation, that Dr. Berkowitz’s changing impressions were the

product of deliberate indifference rather than medical judgment. And although Michalski would

have preferred to receive corticosteroid injections, his disagreement with Dr. Berkowitz as to the

appropriate treatment does not establish an Eighth Amendment violation.

We therefore

conclude that the district court properly granted summary judgment to both Dr. Ruiz and Dr.

Berkowitz.

4 * * *

We have considered all of Michalski’s remaining arguments and find them to be 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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