13-4043
Kearney v. N.Y.S.D.O.C.S.
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 “SUMMARY ORDER”). A PARTY CITING 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10
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12 RICHARD KEARNEY,
13 Plaintiff-Appellant,
14
15 -v.- 13-4043
16
17 NEW YORK STATE DEPARTMENT OF
18 CORRECTIONAL SERVICES, ET AL.,
19 Defendants-Appellees.
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21
22 FOR APPELLANT: RICHARD KEARNEY, pro se,
23 Stormville, New York.
24
25 FOR APPELLEES: LAURA ETLINGER, for Assistant
26 Solicitor General, for Eric T.
27 Schneiderman, Attorney General
1
1 of the State of New York,
2 Albany, New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Northern District of New York (Suddaby, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Appellant Richard Kearney, pro se, appeals from the
12 district court’s grant of summary judgment, dismissing his
13 reasonable accommodation action. We assume the parties’
14 familiarity with the underlying facts, the procedural
15 history, and the issues presented for review.
16
17 A district court’s grant of summary judgment is
18 reviewed de novo with the view that “[s]ummary judgment is
19 appropriate only if the moving party shows that there are no
20 genuine issues of material fact and that the moving party is
21 entitled to judgment as a matter of law.” Miller v. Wolpoff
22 & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). We
23 resolve all ambiguities and draw all inferences in favor of
24 the non-movant. Nationwide Life Ins. Co. v. Bankers Leasing
25 Assoc., 182 F.3d 157, 160 (2d Cir. 1999). Summary judgment
26 is appropriate “[w]here the record taken as a whole could
27 not lead a rational trier of act to find for the non-moving
28 party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
29 475 U.S. 574, 587 (1986).
30
31 Upon such review, we conclude that Kearney’s appeal is
32 without merit substantially for the reasons stated in
33 Magistrate Judge Dancks’ report and recommendation, which
34 the district court adopted over Kearney’s timely objection.
35 To the extent Kearney asserts that he was deprived of access
36 to the showers, he fails to raise a triable issue of fact
37 because his need for crutches is “for long periods of
38 standing and walking”; he refused additional consultations
39 and treatment from prison doctors; and a prison is not
40 required to “provide a disabled individual with every
41 accommodation he requests or the accommodation of his
42 choice” in order to provide “reasonable accommodations.”
43 McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir.
44 2012).
45
2
1 For the foregoing reasons, and finding no merit in
2 Kearney’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8
3