Chavis v. Ferris , 358 F. App'x 258 ( 2009 )

07-4735-pr
Chavis v. Ferris
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
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 23 rd day of December, two thousand nine.
PRESENT: RALPH K. WINTER,
REENA RAGGI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
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GEORGE M. CHAVIS,
Plaintiff-Appellant,
v. No. 07-4735-pr
THOMAS FERRIS, JAMES WAITE, RICHARD
DONAHUE, PAUL TITUS,
Defendants-Appellees.*
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FOR APPELLANT: George M. Chavis, pro se, Elmira, New York.
FOR APPELLEES: Andrew M. Cuomo, Attorney General of the State
of New York; Barbara D. Underwood, Solicitor
*
The Clerk of the Court is directed to amend the official caption to read as shown
above.
General; Andrea Oser, Deputy Solicitor General;
Andrew B. Ayers, Assistant Solicitor General,
Albany, New York.
Appeal from the United States District Court for the Western District of New York
(Jeremiah J. McCarthy, Magistrate Judge2 ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the district court’s September 28, 2007 judgment is AFFIRMED.
New York State prisoner George M. Chavis appeals pro se from a decision of the
district court granting defendants summary judgment on Chavis’s § 1983 claims alleging
deliberate indifference to his serious medical needs in violation of the Eighth Amendment,
First Amendment retaliation, and violation of his due process rights. We review a district
court’s ruling on summary judgment de novo, see Dillon v. Morano, 497 F.3d 247, 251 (2d
Cir. 2007), and we will affirm only if the record evidence, construed in the light most
favorable to Chavis, shows no genuine issue of material fact and defendants’ entitlement to
judgment as a matter of law, see Fed. R. Civ. P. 56(c); White River Amusement Pub, Inc. v.
Town of Hartford, 481 F.3d 163, 167 (2d Cir. 2007). In applying this standard, we assume
the parties’ familiarity with the facts and the record of prior proceedings, which we reference
only as necessary to explain our decision to affirm.
1. Deliberate Indifference
To establish deliberate indifference to his serious medical needs, Chavis was required
2
The parties consented to have this case heard by a magistrate judge pursuant to 28
U.S.C. § 636(c).
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to adduce evidence of (1) a medical need constituting “a condition of urgency” that might
result in “death, degeneration, or extreme pain,” and (2) defendant’s knowledge and
disregard of “an excessive risk to [Chavis’s] health or safety.” Johnson v. Wright, 412 F.3d
398, 403 (2d Cir. 2005) (internal quotation marks omitted). Assuming arguendo that
Chavis’s toe surgeries satisfy the former requirement, he failed to present evidence
permitting a finding in his favor on the latter. It is undisputed that defendant Ferris is not a
medical professional, and no other evidence indicates his personal knowledge of Chavis’s
medical needs. To the contrary, Ferris’s only knowledge was that – according to medical
staff – Chavis did not need the special footwear he demanded. As Chavis cites no evidence
to the contrary, his challenge to the award of summary judgment on his Eighth Amendment
claim is without merit.
2. First Amendment Retaliation
To establish a prima facie case of First Amendment retaliation, Chavis must
demonstrate “(1) that the speech or conduct at issue was protected, (2) that the defendant
took adverse action against [him], and (3) that there was a causal connection between the
protected speech and the adverse action.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003) (internal quotation marks omitted). Chavis submits that the district court erred in
concluding that his claims failed at the first step of this analysis because the record shows
that defendants’ challenged actions followed his references to his right to seek judicial relief.
In fact, the record clearly demonstrates Chavis’s violation of a number of prison rules that
independently supported initiating the challenged disciplinary proceedings. See id. at 287-
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88. For that reason, the district court appropriately awarded defendants summary judgment
on the First Amendment retaliation claims. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994).
3. Due Process
Chavis’s contention that the district court erred in failing to address his claim that
defendant Donahue violated his due process rights is without merit. Chavis’s complaint
alleged that defendant Waite violated his due process rights, but attributed no such
wrongdoing to Donahue. As Chavis never sought leave to amend the complaint, the district
court’s refusal to consider his due process claim against Donahue, raised for the first time
on summary judgment, was not an abuse of discretion. See Greenidge v. Allstate Ins. Co.,
446 F.3d 356, 361 (2d Cir. 2006) (“[A] district court does not abuse its discretion when it
fails to grant leave to amend a complaint without being asked to do so.”).
Any argument that the district court erred in granting Waite summary judgment on the
due process claim that was stated in Chavis’s complaint is similarly meritless. Although
Chavis argues that he was entitled to separate resolution of two administrative appeals
challenging disciplinary decisions, state statutes and regulations governing prison discipline
create cognizable liberty interests only in narrow circumstances. See Acre v. Walker, 139
F.3d 329, 334 (2d Cir. 1998) (“[T]he inmate must establish that his confinement or restraint
(1) creates an atypical and significant hardship . . . in relation to the ordinary incidents of
prison life, and (2) that the state has granted its inmates, by regulation or by statute, a
protected liberty interest in remaining free from that confinement or restraint.” (internal
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quotation marks and citations omitted)). Even assuming that Chavis’s 60 days of “keeplock”
time would satisfy the first prong of this test, see Hanrahan v. Doling, 331 F.3d 93, 97 (2d
Cir. 2003) (noting that “[t]he length of disciplinary confinement is one of the guiding
factors” in the hardship determination), Chavis does not show how the resolution of his two
appeals by a single written decision violated any rule governing prison disciplinary
proceedings, or otherwise suggest how such resolution rendered the process he was afforded
insufficient. On this record, the district court properly granted summary judgment in favor
of Waite.
4. Motion for Default Judgment
As defendants timely filed and served their brief and appendix, Chavis’s pending
motion for default judgment is DENIED.
5. Conclusion
We have considered Chavis’s remaining arguments and conclude that they are without
merit. Accordingly, the district court’s judgment is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
By:
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