13‐4604‐pr
Davis v. Florence
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 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
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 9th day of April, two thousand fifteen.
4
5 PRESENT: DENNIS JACOBS,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 GARY L. SHARPE,
9 Chief District Judge.*
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11
12 SAMUEL DAVIS,
13
14 Plaintiff‐Appellant,
15
16 v. No. 13‐4604‐pr
17
18 FLORENCE, SERGEANT (NURSE), GENEVIENE
19 SWITZ, (P.A), WLADYSLAW SIDOROWICZ,
20 (DOCTOR), JAMES WALSR,
21 (SUPERINTENDENT), PATRICK GRIPPIN,
22 (DEPT OF SECURITY), NORMAN BEZIO,
* The Honorable Gary L. Sharpe, Chief Judge of the United States District Court
for the Northern District of New York, sitting by designation.
1 (DIRECTOR OF SPECIAL HOUSING), BRIAN
2 FISCHER, (COMMISIONER), BELINDA
3 MCKENNY, (I.R.C.), KAREN BELLAMY,
4 (DIRECTOR OF GRIEVANCE), M. LAKE,
5 (COUNSELOR), PAUL MACE, (SERGEANT), D.
6 LONG, JOSEPH MAXWELL, (LIEUTENANT),
7 OFFICER ARMSTRONG, MICHAEL
8 MAKOWSKI, (OFFICER), E. PUERSCHNER,
9 (OFFICER),
10
11 Defendants‐Appellees.
12 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
13
14 FOR APPELLANT: SAMANTHA FASANELLO, ROBERT WARD (Jonathan
15 Romberg, on the brief), Seton Hall University
16 School of Law Center for Social Justice, Newark,
17 NJ.
18
19 MILTON ZELERMYER (Seymour W. James, Jr., John
20 Boston, on the brief), The Legal Aid Society, New
21 York, NY.
22
23 FOR APPELLEES: DAVID LAWRENCE III (Barbara D. Underwood,
24 Michael S. Belohlavek, on the brief), for Eric T.
25 Schneiderman, Attorney General of the State of
26 New York, New York, NY.
27
28 Appeal from a judgment of the United States District Court for the
29 Southern District of New York (Alvin K. Hellerstein, Judge).
30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
31 AND DECREED that the judgment of the District Court is AFFIRMED IN PART
32 and VACATED IN PART and the case is REMANDED for further proceedings
33 consistent with this order.
34 Samuel Davis appeals from the District Court’s grant of summary
35 judgment dismissing his claims under 42 U.S.C. § 1983, as well as pendent state
2
1 law claims, against various employees and officials at Sullivan Correctional
2 Facility (“Sullivan”). We assume the parties’ familiarity with the facts and record
3 of the prior proceedings, to which we refer only as necessary to explain our
4 decision to affirm in part, vacate in part, and remand.
5 To make out a claim of retaliation under the First Amendment, an inmate
6 must establish “(1) that the speech or conduct at issue was protected, (2) that the
7 defendant took adverse action against the [inmate], and (3) that there was a
8 causal connection between the protected [conduct] and the adverse action.”
9 Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (second alteration in original)
10 (quotation marks omitted).
11 Davis’s first retaliation claim is that the defendants placed him in
12 Sullivan’s Special Housing Unit (“SHU”) and subjected him to strip frisks for
13 filing numerous grievances against them. A motions panel of this Court
14 previously dismissed the appeal of this claim as lacking any arguable basis in
15 law or fact. There is no compelling reason to revisit that prior ruling. See Shomo
16 v. City of New York, 579 F.3d 176, 186 (2d Cir. 2009) (declining to revisit a prior
17 ruling by a motions panel affirming a grant of summary judgment “absent
18 cogent or compelling reasons” (quotation marks omitted)).
19 Second, Davis claims that a physician’s assistant at Sullivan retaliated
20 against him for filing a grievance against her by refusing to provide Davis more
21 aspirin and instructing Davis’s nurse to do the same. Even if the temporary
22 discontinuation of aspirin were deemed an “adverse action,” there is no evidence
23 from which a factfinder could reasonably draw a “causal connection between the
24 protected [conduct] and the adverse action.” Holland, 758 F.3d at 225 (alteration
25 in original) (quotation marks omitted). In the context of prisoner retaliation
26 claims, we have required evidence beyond temporal proximity between the
3
1 protected activity and the adverse action before allowing a prisoner to proceed to
2 trial on such a claim. See Colon v. Coughlin, 58 F.3d 865, 872‐73 (2d Cir. 1995).
3 Here temporal proximity “represented the sum total” of Davis’s proof, id. at 873
4 – he has produced no other evidence establishing a causal connection. We
5 therefore affirm the dismissal of the second retaliation claim.
6 Davis’s claim of deliberate indifference in violation of the Eighth
7 Amendment was also properly dismissed. To prevail on such a claim based on
8 prison medical care, an inmate must demonstrate that prison officials “acted
9 with deliberate indifference to [his] serious medical needs.” Hernandez v.
10 Keane, 341 F.3d 137, 144 (2d Cir. 2003) (quotation marks omitted). Assuming
11 without deciding that Davis demonstrated a “serious medical need,” we agree
12 that he failed to show deliberate indifference to those needs. To the contrary, the
13 evidence shows that prison staff were attentive to Davis’s health issues and that
14 Davis often rejected medical treatment and failed to follow the physical therapy
15 regimen prescribed for him.
16 We also affirm the dismissal of Davis’s Fourth Amendment claim. “[A]
17 regulation impinging on an inmate’s constitutional rights must be upheld if it is
18 reasonably related to legitimate penological interests.” Florence v. Bd. of Chosen
19 Freeholders, 132 S. Ct. 1510, 1515 (2012) (quotation marks omitted). On this
20 record, the defendants showed that their practice of having a supervisory officer
21 present during strip frisks and recording strip frisks via wall‐mounted video
22 camera is reasonably related to the legitimate interests in both inmate and staff
23 security at Sullivan. On appeal, Davis mounts a facial challenge and argues that
24 the performance of strip frisks upon admission to the SHU and absent
25 individualized reasonable suspicion that an inmate is concealing contraband
26 violates the Fourth Amendment. Because this argument presents constitutional
4
1 issues, we have searched the record to assure that it was properly preserved
2 below. We conclude that Davis forfeited this argument because his complaint
3 and his arguments at the summary judgment stage (even when construed
4 liberally) challenged only the presence of supervisory officers and the video
5 recording of strip frisks, not the strip frisks themselves.
6 In granting summary judgment, the District Court neglected to address
7 Davis’s pendent state law claims and due process claim relating to his
8 administrative segregation reviews. Accordingly, we vacate the judgment of the
9 District Court with respect to those claims for the District Court on remand to
10 consider them in the first instance. See Bano v. Union Carbide Corp., 273 F.3d
11 120, 132‐33 (2d Cir. 2001).
12 We have considered Davis’s remaining arguments and conclude that they
13 are without merit. For the foregoing reasons, the judgment of the District Court
14 is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED
15 for further proceedings consistent with this order.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
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