21-1964-pr Lacen v. Aygemong

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 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 25th day of October, two thousand twenty-two.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges. _____________________________________

Jose Lacen,

Plaintiff-Appellant,

v.

Clinic Captain Aygemong, R.P.A. Janet Runcie, C-76 Clinic, M.D. Achim Huggins, C-76 Clinic, P.A. David Onuora, M.D. Sai Kolla, 21-1964

Defendants-Appellees,

John Doe, Intake Unit EMTC, C76, Ian William Forster, NYC Law Department, General Litigation Division,

Defendants. _____________________________________ FOR PLAINTIFF-APPELLANT: Jose Lacen, pro se, Attica, NY.

FOR DEFENDANTS-APPELLEES: Eva L. Jerome, Devin Slack, for Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

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

New York (Torres, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Appellant Jose Lacen, incarcerated and proceeding pro se, sued multiple employees at the

Eric M. Taylor Center on Rikers Island under 42 U.S.C. ' 1983. He alleged that he was subject

to unconstitutional conditions of confinement and inadequate medical care, arising out of the

denial of a second mattress to help treat his chronic back pain. The district court granted the

defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss, reasoning that Lacen failed to establish

that the defendants acted with the requisite subjective intent for either claim. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

This Court reviews a Rule 12(b)(6) dismissal de novo, construing Lacen’s complaint

liberally, accepting all factual allegations as true, and drawing all reasonable inferences in his

favor. Chambers v. Time Warner, Inc.,

(2d Cir. 2002). To survive a motion

to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim will have “facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

I. Eighth Amendment Claims

To prevail on an Eighth Amendment claim based on either conditions of confinement or

inadequate medical care, an incarcerated plaintiff must allege: (1) a “sufficiently serious”

deprivation; and (2) that the defendant official acted with “a sufficiently culpable state of mind.”

Farmer v. Brennan,

(1994) (internal quotation marks and citation omitted); see

also Chance v. Armstrong,

(2d Cir. 1998). A sufficiently culpable state of

mind requires “deliberate indifference” to inmate health or safety, meaning that the official “knows

of and disregards an excessive risk to inmate health or safety; the 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 the inference.” Farmer,

; see also Chance,

.

Even with the requisite liberal construction, Lacen did not plead facts suggesting that the

defendants were aware that he would be substantially harmed by the denial of a second mattress

or that the denial reflected deliberate indifference to his medical needs. Instead, the complaint

shows that the defendants were responsive to his conditions and took a variety of reasonable steps

to try to alleviate his pain. As his complaint details, when Lacen told defendants about the pain

he was in because of his spinal surgery and ongoing back problems, Lacen was prescribed

medication, underwent x-rays, was referred for physical therapy and to a neurologist, and was

given extra blankets, a cane, and special shoes. While in certain instances, a medical professional

may be deliberately indifferent if “he or she consciously chooses an easier and less efficacious

3 treatment plan,” Chance,

(internal quotation marks and citation omitted), on the

alleged facts we cannot reasonably infer that the defendants knew or should have been aware that

the treatments they pursued were less efficacious or “easier” than providing an additional mattress,

let alone that they acted with deliberate indifference to Lacen’s health and well-being in denying

his request. At most, Lacen has alleged negligence, which is insufficient to support an Eighth

Amendment claim. See

.

II. Municipal Liability

The district court found that Lacen had also not established a claim against the defendants

in their official capacities because he failed to plead that an official policy or custom caused a

violation of his constitutional rights, as required by Monell v. Department of Social Services of the

City of New York,

(1978). However, Lacen did allege that he was harmed

because of a policy prohibiting medical staff from issuing permits for extra mattresses. It is

unclear whether the “policy” in question came from the facility or, instead, from the individual

defendant who denied his request; after all, Lacen did receive an additional mattress after being

transferred to another unit in the same facility. Regardless, because no underlying constitutional

violation was adequately alleged, Lacen cannot establish a Monell claim in this situation.

See Segal v. City of New York,

(2d Cir. 2006).

III. Leave to Amend

The district court did not give Lacen leave to amend his complaint a third time. While

Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend shall be freely

given, it is within the discretion of the district court to grant or deny leave to amend. Kim v.

Kimm,

(2d Cir. 2018). Lacen was previously granted leave to amend, and the

4 new materials he alludes to in his brief to this Court would not overcome his pleading deficiencies,

making any amendment futile. “[I]t is well established that leave to amend a complaint need not

be granted when amendment would be futile.” Ellis v. Chao,

(2d Cir. 2003).

In any event, having granted leave “at least once,” Chavis v. Chappius,

(2d Cir.

2010) (citation omitted), the district court acted within its discretion in not granting Lacen leave

to amend a third time.

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