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.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
DONALD WASHINGTON, Plaintiff‐Appellant,
v. 16‐1034‐pr
DALE ARTUS, MIKE SEDAR, LISA LAPENNA, NANCY LIAS, WILLIAM SCOTT, & PETER NIGRO,
Defendants‐Appellees.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
* 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 42 U.S.C. § 1983. 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.
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, 768 F.3d 183, 192
(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 Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(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
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, 717 F.3d 119, 125 (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, 509 U.S. 25, 36 (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
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, 511 U.S. 825, 837
(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.
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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.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
DONALD WASHINGTON, Plaintiff‐Appellant,
v. 16‐1034‐pr
DALE ARTUS, MIKE SEDAR, LISA LAPENNA, NANCY LIAS, WILLIAM SCOTT, & PETER NIGRO,
Defendants‐Appellees.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
* 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 42 U.S.C. § 1983. 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.
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, 768 F.3d 183, 192
(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 Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(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
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, 717 F.3d 119, 125 (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, 509 U.S. 25, 36 (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
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, 511 U.S. 825, 837
(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, 554 F.3d 255, 268 (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, 467 F.3d 263, 279‐80 (2d Cir. 2006). Washington argues
that the defendants were deliberately indifferent to his serious medical needs in two
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, 316 F.3d 178, 185 (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,
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, 143 F.3d 698, 703 (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, 802 F.2d 58, 60 (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., 877 F.2d 170, 174 (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