09-1520-pr
Day v. Lantz
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 the12th day of January, two thousand ten.
PRESENT:
WILFRED FEINBERG,
ROBERT A. KATZMANN,
Circuit Judges,
T.S. ELLIS, III, *
District Judge.
___________________________________________________
Jason M. Day,
Plaintiff-Appellant,
v. 09-1520-pr
Theresa C. Lantz, Comm.; Edward Blanchette, MD, Clinical Dir.;
Ricardo Ruiz, Facility MD; Scott Stephenson, Facility Mental
Health Worker; Castro, MD Garner Facility; Patricia Ottolini,
Dir. Health and Addiction Svcs.; Nasir Kahn, MD, UConn Surgeon;
John Doe, Utilization Review Committee,
Defendants-Appellees.
____________________________________________________
*
T.S. Ellis, III, Senior Judge, of the United States District Court for the Eastern District of
Virginia, sitting by designation.
FOR APPELLANT: Jason M. Day, pro se, Cheshire, CT.
FOR APPELLEES: Richard Blumenthal, Attorney General for the State of
Connecticut (Neil Parile, Assistant Attorney General, on the
brief), Hartford, CT.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Chatigny, 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 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.
The only decision Day challenges on appeal is the district court’s order granting
summary judgment, entered March 26, 2009, 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 statements 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).
The district court properly determined that the Defendants were entitled to judgment as
a matter of law because Day failed to establish that any of the Defendants was deliberately
indifferent to a serious medical need. The deliberate indifference standard includes both an
objective and a subjective component: objectively, “the alleged deprivation must be
sufficiently serious, in the sense that a condition of urgency, one that may produce death,
degeneration, or extreme pain exists,” and subjectively, “the charged official must act with a
sufficiently culpable state of mind,” which is more than mere negligence and akin to criminal
recklessness. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
marks omitted). The official “must be subjectively aware that his conduct creates” a
substantial risk of harm to the inmate, see Salahuddin v. Goord, 467 F.3d 263, 280-81 (2d Cir.
2006), but he or she must consciously disregard that risk, see Farmer v. Brennan, 511 U.S.
825, 839 (1994). However, “mere 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.” Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
Here, Day failed to demonstrate that any of the Defendants was aware of but
consciously disregarded a substantial risk to his health. See Farmer, 511 U.S. at 839;
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Salahuddin, 467 F.3d at 280-81. The evidence showed that his inguinal hernia was timely
diagnosed and properly treated, but that Day refused to undergo the surgery required to repair
it. He failed to provide any evidence indicating that his treatment was inadequate, offering
only conclusory allegations that were insufficient to withstand summary judgment. See Davis,
316 F.3d at 100. Day’s complaint is founded upon a disagreement over the proper treatment
for his inguinal hernia, which does not give rise to a constitutional claim. See Chance, 143
F.3d at 703.
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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