Day v. Warren

08-3131-pr
Day v. Warren

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of January, two thousand ten.

PRESENT:
Wilfred Feinberg,
Robert A. Katzmann,
Circuit Judges,
T.S. Ellis, III,*
District Judge.
______________________________________________

Jason Mourice Day,

Plaintiff-Appellant,

v. 08-3131-pr

John Warren, Captain; Cappirillio, Lt.; Dennis Jones,
Dir. of Security; James McGaughey, Dir.; Nancy B.
Alisberg, Atty.; James E. Dzurenda, Warden; Castro, MD;
O’Haleran, MD; Joan Dobson, Med Grievances Coordinator;
Pat Morris, Med. Supv.; John Doe, Med. Referral Supv.,
U-Conn UCMHC/URC; Mark Buchanan, Clinical Dir.;
Farinella, MD; Ruiz, MD; Naqui, MD,

Defendants-Appellees.
_______________________________________________

*
The Honorable T.S. Ellis, III, United States District Judge for the Eastern District of
Virginia, sitting by designation.
FOR APPELLANT: Jason M. Day, pro se, Cheshire, Connecticut.

FOR APPELLEES: Richard Blumenthal, Attorney General for the State of
Connecticut (Ann E. Lynch, Assistant Attorney General, on the
brief), Hartford, Connecticut.

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

Connecticut (Thompson, J.).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

Appellant Jason Mourice Day, pro se, appeals from a judgment of the district court

granting summary judgment to the Defendants, employees of the Connecticut Department of

Correction, and dismissing Day’s 42 U.S.C. § 1983 complaint, which alleged unconstitutional

conditions of confinement and deliberate indifference to a serious medical need in violation of

the Eighth Amendment’s prohibition against cruel and unusual punishment. We assume the

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

on appeal.

As an initial matter, the only decision Day challenges on appeal is the district court’s

June 5, 2008 order granting summary judgment, and he has therefore waived any challenge to

the district court’s prior orders in this litigation. See Norton v. Sam’s Club, 145 F.3d 114, 117

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally

will not be addressed on appeal.”); LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.

1995) (“[W]e need not manufacture claims of error for an appellant proceeding pro se . . . .”).

We review a district court’s order granting summary judgment de novo and ask whether

the district court properly concluded that there was no genuine issue as to any material fact and

that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &

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Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine

issues of material fact, we are “required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary judgment is sought.” Terry v.

Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted). However,

“conclusory statement[s] or mere allegations [are] not sufficient to defeat a summary judgment

motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002).

We affirm for substantially the same reasons stated in the district court’s thorough and

well reasoned opinion. The Defendants were entitled to judgment as a matter of law because

Day failed to establish that the conditions of his confinement violated contemporary standards

of decency, see Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002), or that the Defendants

knew of and disregarded an excessive risk to his health, see Farmer v. Brennan, 511 U.S. 825,

837 (1994); Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006); see also Chance v.

Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[M]ere disagreement over the proper treatment

does not create a constitutional claim. So long as the treatment given is adequate, the fact that

a prisoner might prefer a different treatment does not give rise to an Eighth Amendment

violation.”); Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (“Because the Eighth

Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state

tort law, not every lapse in prison medical care will rise to the level of a constitutional

violation.”). For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

By:________________________

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