13-3602 Bonano v. Carlsen et al.
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 10th day of December, two thousand fifteen. 4 5 PRESENT: 6 DENNIS JACOBS, 7 DEBRA ANN LIVINGSTON, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 _____________________________________ 11 12 Michael Bonano, AKA Anthony Cusamano, 13 14 Plaintiff-Appellant, 15 16 v. 13-3602 17 18 John Doe, #2, et al., 19 20 Defendants, 21 22 Scott Carlsen, Superintendent, Ulster Correctional Facility, et al., 23 24 Defendants-Appellees. 25 _____________________________________ 26 27 FOR PLAINTIFF-APPELLANT: Michael Bonano, pro se, Collins, New York. 28 29 FOR DEFENDANTS-APPELLEES: Eric T. Schniederman, Attorney General of the State 30 of New York; Barbara D. Underwood, Solicitor 31 General; Andrew B. Ayers, Frederick A. Brodie, 32 Assistant Solicitors General, Albany, New York. 1 Appeal from a judgment of the United States District Court for the Northern District of
2 New York (Scullin, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the motion for acceptance of a late reply brief is GRANTED, and the judgment
5 of the district court is AFFIRMED.
6 Appellant Michael Bonano, pro se, appeals from a judgment granting summary judgment
7 to the appellees on his Eighth Amendment claim that he was sickened by brown water that flowed
8 from the showerheads and sink faucets that he used while incarcerated at Ulster Correctional
9 Facility. Bonano also challenges the district court’s order denying his request for discovery
10 sanctions. We assume the parties’ familiarity with the underlying facts, the procedural history of
11 the case, and the issues on appeal.
12 1. Bonano contends that the district court erred in not imposing discovery sanctions
13 against defendants. A ruling on a motion for discovery sanctions is reviewed for an abuse of
14 discretion. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.
15 2002). Federal Rule of Civil Procedure 37(b)(2) provides for discovery sanctions, including
16 staying the case pending compliance, and entry of a default judgment. See Fed. R. Civ. P.
17 37(b)(2)(A); Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). The district
18 court “has the power to set and enforce reasonable deadlines for discovery and motion practice” to
19 maintain efficiency in the context of prisoner litigation. Baptiste v. Sommers, 768 F.3d 212, 219
20 (2d Cir. 2014).
21 Bonano had a full opportunity to pursue discovery: the discovery deadline was stayed and
22 extended from October 2010 until January 2011, then, at Bonano’s request, it was again extended
23 to March 2011. The order extending the discovery deadline a second time clearly stated that no
2 1 further discovery extensions would be granted. Bonano concedes that he received numerous
2 responsive documents during this time period and also successfully compelled defendants to
3 produce additional documents in April 2011, despite a lack of advance notice for that request.
4 The fact that Bonano’s case was nearing trial further suggests that the court reasonably enforced
5 the discovery completion deadline. See Lore v. City of Syracuse, 670 F.3d 127, 174-75 (2d Cir.
6 2012).
7 2. Bonano argues that the district court erred in considering defendants’ second motion
8 for summary judgment after denying the first motion. The record reflects, however, that the
9 second summary judgment motion was accompanied by critical evidence absent from the first
10 summary judgment motion, including: (1) authentication of the test reports authored by
11 Environmental Labworks, Inc.; (2) a declaration of Christopher Jaeger, a certified water systems
12 operator who supervised the issuance of reports regarding the water quality at Ulster; and (3) an
13 Annual Drinking Water Quality Report for 2007 applicable to Ulster’s water source. The district
14 court’s consideration of a second summary judgment motion was entirely appropriate. See
15 Brown v. City of Syracuse, 673 F.3d 141, 147 n.2 (2d Cir. 2012) (“Appellees had reason to move
16 again for summary judgment . . . . ‘District courts may in their discretion permit renewed or
17 successive motions for summary judgment, particularly when the moving party has expanded the
18 factual record on which summary judgment is sought.’”) (quoting Kovacevich v. Kent State Univ.,
19 224 F.3d 806, 835 (6th Cir. 2000)).
20 Bonano further contends that the law of the case barred the grant of defendants’ second
21 motion for summary judgment. However, that doctrine is “discretionary and does not limit a
22 court’s power to reconsider its own decisions prior to final judgment.” Virgin Atl. Airways, Ltd.
23 v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); see also United States v. Uccio, 940
3 1 F.2d 753, 758 (2d Cir. 1991).
2 3. We review de novo a district court’s grant of summary judgment, with the view that
3 “[s]ummary judgment is appropriate only if the moving party shows that there are no genuine
4 issues of material fact and that the moving party is entitled to judgment as a matter of law.”
5 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). To state an Eighth
6 Amendment claim, a plaintiff must allege that “(1) objectively, the deprivation the inmate suffered
7 was ‘sufficiently serious that he was denied the minimal civilized measure of life’s necessities,’
8 and (2) subjectively, the defendant official acted with ‘a sufficiently culpable state of mind . . . ,
9 such as deliberate indifference to inmate health or safety.’” Walker v. Schult, 717 F.3d 119, 125
10 (2d Cir. 2013) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)). The objective
11 element is satisfied by a showing that the plaintiff’s “conditions . . . pose an unreasonable risk of
12 serious damage to his health,” through a deprivation of “ ‘basic human needs’ such as food,
13 clothing, medical care, and safe and sanitary living conditions.” Id. (quoting Rhodes v. Chapman,
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13-3602 Bonano v. Carlsen et al.
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 10th day of December, two thousand fifteen. 4 5 PRESENT: 6 DENNIS JACOBS, 7 DEBRA ANN LIVINGSTON, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 _____________________________________ 11 12 Michael Bonano, AKA Anthony Cusamano, 13 14 Plaintiff-Appellant, 15 16 v. 13-3602 17 18 John Doe, #2, et al., 19 20 Defendants, 21 22 Scott Carlsen, Superintendent, Ulster Correctional Facility, et al., 23 24 Defendants-Appellees. 25 _____________________________________ 26 27 FOR PLAINTIFF-APPELLANT: Michael Bonano, pro se, Collins, New York. 28 29 FOR DEFENDANTS-APPELLEES: Eric T. Schniederman, Attorney General of the State 30 of New York; Barbara D. Underwood, Solicitor 31 General; Andrew B. Ayers, Frederick A. Brodie, 32 Assistant Solicitors General, Albany, New York. 1 Appeal from a judgment of the United States District Court for the Northern District of
2 New York (Scullin, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the motion for acceptance of a late reply brief is GRANTED, and the judgment
5 of the district court is AFFIRMED.
6 Appellant Michael Bonano, pro se, appeals from a judgment granting summary judgment
7 to the appellees on his Eighth Amendment claim that he was sickened by brown water that flowed
8 from the showerheads and sink faucets that he used while incarcerated at Ulster Correctional
9 Facility. Bonano also challenges the district court’s order denying his request for discovery
10 sanctions. We assume the parties’ familiarity with the underlying facts, the procedural history of
11 the case, and the issues on appeal.
12 1. Bonano contends that the district court erred in not imposing discovery sanctions
13 against defendants. A ruling on a motion for discovery sanctions is reviewed for an abuse of
14 discretion. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.
15 2002). Federal Rule of Civil Procedure 37(b)(2) provides for discovery sanctions, including
16 staying the case pending compliance, and entry of a default judgment. See Fed. R. Civ. P.
17 37(b)(2)(A); Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). The district
18 court “has the power to set and enforce reasonable deadlines for discovery and motion practice” to
19 maintain efficiency in the context of prisoner litigation. Baptiste v. Sommers, 768 F.3d 212, 219
20 (2d Cir. 2014).
21 Bonano had a full opportunity to pursue discovery: the discovery deadline was stayed and
22 extended from October 2010 until January 2011, then, at Bonano’s request, it was again extended
23 to March 2011. The order extending the discovery deadline a second time clearly stated that no
2 1 further discovery extensions would be granted. Bonano concedes that he received numerous
2 responsive documents during this time period and also successfully compelled defendants to
3 produce additional documents in April 2011, despite a lack of advance notice for that request.
4 The fact that Bonano’s case was nearing trial further suggests that the court reasonably enforced
5 the discovery completion deadline. See Lore v. City of Syracuse, 670 F.3d 127, 174-75 (2d Cir.
6 2012).
7 2. Bonano argues that the district court erred in considering defendants’ second motion
8 for summary judgment after denying the first motion. The record reflects, however, that the
9 second summary judgment motion was accompanied by critical evidence absent from the first
10 summary judgment motion, including: (1) authentication of the test reports authored by
11 Environmental Labworks, Inc.; (2) a declaration of Christopher Jaeger, a certified water systems
12 operator who supervised the issuance of reports regarding the water quality at Ulster; and (3) an
13 Annual Drinking Water Quality Report for 2007 applicable to Ulster’s water source. The district
14 court’s consideration of a second summary judgment motion was entirely appropriate. See
15 Brown v. City of Syracuse, 673 F.3d 141, 147 n.2 (2d Cir. 2012) (“Appellees had reason to move
16 again for summary judgment . . . . ‘District courts may in their discretion permit renewed or
17 successive motions for summary judgment, particularly when the moving party has expanded the
18 factual record on which summary judgment is sought.’”) (quoting Kovacevich v. Kent State Univ.,
19 224 F.3d 806, 835 (6th Cir. 2000)).
20 Bonano further contends that the law of the case barred the grant of defendants’ second
21 motion for summary judgment. However, that doctrine is “discretionary and does not limit a
22 court’s power to reconsider its own decisions prior to final judgment.” Virgin Atl. Airways, Ltd.
23 v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); see also United States v. Uccio, 940
3 1 F.2d 753, 758 (2d Cir. 1991).
2 3. We review de novo a district court’s grant of summary judgment, with the view that
3 “[s]ummary judgment is appropriate only if the moving party shows that there are no genuine
4 issues of material fact and that the moving party is entitled to judgment as a matter of law.”
5 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). To state an Eighth
6 Amendment claim, a plaintiff must allege that “(1) objectively, the deprivation the inmate suffered
7 was ‘sufficiently serious that he was denied the minimal civilized measure of life’s necessities,’
8 and (2) subjectively, the defendant official acted with ‘a sufficiently culpable state of mind . . . ,
9 such as deliberate indifference to inmate health or safety.’” Walker v. Schult, 717 F.3d 119, 125
10 (2d Cir. 2013) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)). The objective
11 element is satisfied by a showing that the plaintiff’s “conditions . . . pose an unreasonable risk of
12 serious damage to his health,” through a deprivation of “ ‘basic human needs’ such as food,
13 clothing, medical care, and safe and sanitary living conditions.” Id. (quoting Rhodes v. Chapman,
14 452 U.S. 337, 347 (1981)). The subjective element is satisfied by a showing that the defendant
15 “acted with ‘more than mere negligence.’ Id. (quoting Farmer v. Brennan, 511 U.S. 825, 835
16 (1994)). “The prison official must know of, and disregard, an excessive risk to inmate health or
17 safety.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012).
18 As the district court concluded, Bonano did not raise a triable issue of fact on the objective
19 element. Bonano failed to establish a causal link between the water at Ulster Correctional Facility
20 and his disorder: that connection is only “conjecture[] or speculation.” Kulak v. City of N.Y., 88
21 F.3d 63, 71 (2d Cir. 1996). Bonano was unsure of whether he visited medical staff while at Ulster
22 and offered no medical expert’s opinion as to causation. In addition, Bonano did not swallow the
23 water when he showered or brushed his teeth, but instead drank from a water fountain, a source
4 1 that Bonano does not claim provided brown water. The authenticated Environmental Labworks
2 reports, as well as Christopher Jaeger’s declaration and report, further established that the water at
3 Ulster was safe: Ulster’s water was softened, disinfected, tested at multiple locations, did not
4 contain bacteria, and did not violate state regulatory limits for contaminants during Bonano’s
5 incarceration. Bonano has not rebutted this evidence.
6 Regarding the subjective element, the district court concluded that Bonano failed to raise a
7 genuine issue of fact as to whether Carlsen acted with deliberate indifference. This Court has
8 required a showing of “a state of mind that is the equivalent of criminal recklessness.” Hathaway
9 v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Bonano submitted evidence suggesting that
10 Carlsen was aware of Bonano’s grievance and his petition about Ulster’s water. Nevertheless, as
11 the district court observed, Carlsen knew that the water was treated and tested regularly, and
12 delegated the daily management of the water to staff and independent contractors, none of whom
13 advised him that the water posed any substantial risk of harm during the relevant time.
14 Furthermore, the response from the grievance director shows that the prison considered Bonano’s
15 grievance, and assured him the water was regularly tested and deemed safe. Because the district
16 court did not err in granting defendants’ motion for summary judgment on Bonano’s substantive
17 claim, we need not reach the district court’s qualified immunity ruling.
18 We have considered all of Bonano’s remaining arguments and find them to be without
19 merit. Accordingly, we AFFIRM the judgment of the district court.
20 FOR THE COURT: 21 Catherine O=Hagan Wolfe, Clerk