Rosario v. Anson et al

Filing 76

ORDER adopting 69 Report and Recommendations and granting 63 Motion for Summary Judgment. Plaintiff's claims against John Doe #1 are dismissed without prejudice for failure to serve. Signed by Judge Brenda K. Sannes on 9/28/15 (served on plaintiff via regular and certified mail). (rjb, ) Modified on 9/28/2015 (rjb, ). (Additional attachment(s) added on 9/28/2015: # 1 Unpublished decision) (rjb, ).

Victor v. Milicevic, 361 Fed.Appx. 212 (2010)

prescribed prisoner medications, approved
laboratory testing, and gave orders restricting
his physical activity, and treatment provided
to prisoner was responsive to the prisoner's
condition. U.S.C.A. Const.Amend. 8.

361 Fed.Appx. 212
This case was not selected for
publication in the Federal Reporter.
United States Court of Appeals,
Second Circuit.
Herman VICTOR, Plaintiff–Appellant,
v.
Raelene MILICEVIC, M.D., Richard
Laux, Physician's Assistant, John Burge,
Superintendent, Defendants–Appellees.
No. 08–1772–pr.

|

2 Cases that cite this headnote
[2]

State prisoner's assertion on appeal, in support
of Eighth Amendment deliberate indifference
claim, that prison physician did not treat his HIV
or Hepatitis C was not raised below and, as a
result, could not be brought for the first time on
appeal. U.S.C.A. Const.Amend. 8.

Jan. 19, 2010.

Synopsis
Background: Prisoner brought § 1983 action against various
prison officials alleging deliberate indifference to his serious
medical needs. The United States District Court for the
Northern District of New York, Frederick J. Scullin, J., 2008
WL 907319, granted summary judgment to officials. Prisoner
appealed.

Federal Courts
Matters of Substance

4 Cases that cite this headnote
[3]

Prisons
Particular Conditions and Treatments
Sentencing and Punishment
Medical care and treatment
Physician's assistant was not deliberately
indifferent, within meaning of Eighth
Amendment, to state prisoner's serious medical
needs, despite an alleged ten-month delay in
receiving a liver biopsy; delay in liver biopsy
was due to conflicting opinions from consulting
doctors on the proper course of treatment and
once the doctors were in agreement that a liver
biopsy was safe, such a biopsy was ordered and
performed. U.S.C.A. Const.Amend. 8.

Holdings: The Court of Appeals, Second Circuit held that:
[1] prison and physician's assistant were not deliberately
indifferent, and
[2] there was no causal connection between prisoner's filing
of grievance and ten-month delay in receiving liver biopsy.

Affirmed.

2 Cases that cite this headnote
West Headnotes (5)

[1]

[4]

Prisons
Particular Conditions and Treatments

Prisons
Particular Conditions and Treatments

Sentencing and Punishment
Medical care and treatment

Sentencing and Punishment
Medical care and treatment

Physician's assistant was not deliberately
indifferent, within meaning of Eighth
Amendment, to state prisoner's back pain, HIV,
or Hepatitis C; assistant adequately treated back
pain by prescribing pain medication, providing
orders restricting his walking and climbing
stairs, and ordering orthopedic consultations,
and prisoner's HIV and Hepatitis C was treated

Prison physician was not deliberately indifferent,
within meaning of the Eighth Amendment, in
not ordering a magnetic resonance imaging
(MRI) on state prisoner's back; physician saw
prisoner on a number of occasions, physician

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

1

Victor v. Milicevic, 361 Fed.Appx. 212 (2010)

by at least three doctors—two of whom were
specialists—regarding his Hepatitis C and at
least one doctor specializing in infectious
diseases regarding both his Hepatitis C and HIV.
U.S.C.A. Const.Amend. 8.

summary judgment to defendants on Victor's claims under
42 U.S.C. § 1983 alleging deliberate indifference to his
serious medical needs in violation of the Eighth Amendment
and retaliation in violation of the First Amendment. We
assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues raised on appeal.

Cases that cite this headnote
[5]

Constitutional Law
Prisoners
Prisons
Particular Conditions and Treatments
There was no causal connection between state
prisoner's filing of grievance and a ten-month
delay in receiving a liver biopsy, as required to
establish claim of First Amendment retaliation;
biopsy was not ordered because physician's
assistant believed that prisoner did not meet
criteria and consulting doctors had conflicting
opinions on the course of treatment. U.S.C.A.
Const.Amend. 1.
1 Cases that cite this headnote

*213 Appeal from a March 31, 2008 judgment of the United
States District Court for the Northern District of New York
(Frederick J. Scullin, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the District Court is AFFIRMED.
Attorneys and Law Firms
Herman Victor, pro se, Malone, NY, for Appellant.
Andrew M. Cuomo, Attorney General of the State of New
York (Barbara D. Underwood, Solicitor General, Nancy
A. Spiegel and Owen Demuth, Assistant Solicitor *214
Generals, on the brief), Albany, NY, for Appellee.
PRESENT: JOSÉ A. CABRANES, ROSEMARY S.
POOLER, GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER
**1 New York State prisoner Herman Victor, pro se,
appeals from a decision of the District Court granting

We review the grant of summary judgment de novo, asking
whether the district court properly concluded that there were
no genuine issues of material fact and that the moving party
was entitled to judgment as a matter of law. See, e.g., Miller
v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
Cir.2003). In determining whether there are genuine issues
of material fact, we resolve any ambiguities and draw all
permissible factual inferences in favor of the non-movant. See
Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). Despite
this deference, a non-movant cannot defeat a motion for
summary judgment merely through conclusory statements or
allegations. See Davis v. State of New York, 316 F.3d 93, 100
(2d Cir.2002).

I. Deliberate Indifference
To substantiate an Eighth Amendment claim for medical
indifference, a plaintiff must prove that the defendant was
deliberately indifferent to a serious medical need. See
Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994). Deliberate indifference has two
necessary components, one objective and the other subjective.
See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).
Objectively, the deprivation must be “sufficiently serious,”
creating a risk of “death, degeneration, or extreme pain.”
Id. Subjectively, the official must have the requisite state of
mind, which is the “equivalent of criminal recklessness.” Id.
Generally, “mere allegations of negligent malpractice do not
state a claim of deliberate indifference.” Id.
The Supreme Court has explained that “[m]edical malpractice
does not become a constitutional violation merely because the
victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In Estelle, the plaintiff
asserted that prison medical personnel failed to diagnose and
treat his back injury and advanced a number of alternative
treatments that were not pursued. See id. at 107, 97 S.Ct. 285.
The Court noted that medical decisions such as whether or not
to order X-rays or other “diagnostic techniques” do not rise
to the level of cruel and unusual punishment but are, at most,
indicative of medical malpractice. Id.

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2

Victor v. Milicevic, 361 Fed.Appx. 212 (2010)

[1]
[2] Here, the District Court properly determined
that Victor had submitted insufficient evidence for a
reasonable fact-finder to conclude that Dr. Milicevic provided
constitutionally inadequate treatment to Victor. First, the
record revealed that, contrary to Victor's contention, Dr.
Milicevic did see and treat Victor after he complained of
back pain from a fall. Moreover, here, as in Estelle, the
failure to order an MRI of Victor's back did not rise to the
level of deliberate indifference. See id. Dr. Milicevic saw
Victor on a number of occasions, and she stated that she had
prescribed him medications, approved laboratory testing, and
given orders restricting his physical activity. *215 Whether
to order an MRI or similar diagnostic treatments “is a classic
example of a matter for medical judgment,” id. at 107, and
where the treatment provided is responsive to the prisoner's
condition, which Dr. Milicevic's treatment was, “the fact
that a prisoner might prefer different treatment does not
give rise to an Eighth Amendment violation.” Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir.1998). Second, as to
Victor's allegation that Dr. Milicevic cancelled his physical
therapy appointments after only one visit, the record clearly
revealed that Victor's refusal to attend his appointments on
three occasions led to the eventual cancellation of his physical
therapy. Finally, to the extent that Victor now asserts in this
Court that Dr. Milicevic did not treat his HIV or Hepatitis
C, this argument was not raised below and, as a result,
cannot be brought for the first time on appeal. See, e.g., In
re Flanagan, 503 F.3d 171, 182 (2d Cir.2007) (explaining
that we generally do “not consider arguments raised for the
first time on appeal,” especially where additional factfinding
is necessary).
**2 [3] [4] The District Court also correctly concluded
that Victor failed to demonstrate that Laux was deliberately
indifferent to his serious medical needs because the ten-month
delay in receiving a liver biopsy was the result of Laux's
belief that Victor did not meet the Department of Correctional
Services' (“DOCS”) criteria for such a procedure. Moreover,
the delay was due to conflicting opinions from consulting
doctors on the proper course of treatment; once the doctors
were in agreement that a liver biopsy was safe, such a
biopsy was ordered and performed. Victor now claims on
appeal that Laux (1) failed to treat his back pain and (2)
failed to treat his HIV and Hepatitis C. There is, however,
only one reasonable interpretation of the record: Laux,
End of Document

in fact, adequately treated his back pain by prescribing
pain medication, providing orders restricting his walking
and climbing stairs, and ordering orthopedic consultations.
Victor's HIV and Hepatitis C were also adequately treated,
as Victor was seen by at least three doctors—two of whom
were specialists—regarding his Hepatitis C and at least one
doctor specializing in infectious diseases regarding both
his Hepatitis C and HIV. Accordingly, the District Court
correctly granted defendants' motion for summary judgment
as to Victor's claims for deliberate indifference.

II. Retaliation
[5] To show retaliation in violation of the First Amendment,
a plaintiff must demonstrate that constitutionally protected
conduct was a substantial or motivating factor for a prison
official's adverse action. Bennett v. Goord, 343 F.3d 133,
137 (2d Cir.2003). Here, Victor failed to state a retaliation
claim, as Victor did not establish that there was a causal
connection between his filing a grievance and a ten-month
delay in receiving a liver biopsy. Indeed, as discussed above,
the evidence supports Laux's contention that he did not order
the biopsy because (1) he believed Victor did not meet DOCS
criteria and (2) consulting doctors had conflicting opinions on
the course of treatment. The alleged adverse action, therefore,
was justified. See id. at 138. To the extent that Victor asserts
on appeal that Laux also retaliated against him by failing to
order an MRI of his back, this contention is without merit,
as the record demonstrates that Laux, in fact, requested an
MRI of Victor's spine in 2003. Therefore, the District Court
correctly granted summary judgment to Laux as to Victor's
retaliation claim.

CONCLUSION
We have reviewed all of Victor's arguments on appeal and
found each of them to *216 be without merit. For the
reasons stated above, the March 31, 2008, 2008 WL 907319,
judgment of the district court is AFFIRMED.

All Citations
361 Fed.Appx. 212, 2010 WL 227646

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© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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