Bellamy v. Mount Vernon Hospital ( 2010 )

09-3312-pr
Bellamy v. Mount Vernon Hospital
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of July, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 PETER W. HALL,
8 Circuit Judges,
9 RICHARD W. GOLDBERG,
10 Judge. *
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14 JEROME BELLAMY,
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16 Plaintiff-Appellant,
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18 -v.- 09-3312-pr
19
20 MOUNT VERNON HOSPITAL, Urologist, Doctor name unknown at
21 this time, M. JANIS, NYS DEPARTMENT OF CORRECTIONS, DR. J.
22 PERELI, DR. LESTER WRIGHT,
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24 Defendants-Appellees.
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27 FOR APPELLANT: JEROME BELLAMY, pro se, Alden, NY.
*
The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
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1 FOR APPELLEES: EDWARD J. GUARDARO, JR., TERENCE S.
2 REYNOLDS, Barlett McDonough Bastone &
3 Monaghan LLP, White Plains, NY, for
4 defendant-appellee Mount Vernon Hospital;
5 RICHARD O. JACKSON, Assistant Solicitor
6 General of Counsel, (Andrew M. Cuomo,
7 Attorney General of the State of New
8 York, Barbara D. Underwood, Solicitor
9 General, Michael S. Belohavek, Senior
10 Counsel, on the brief), New York, NY, for
11 defendant-appellees the State Defendants.
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17 Appeal from the United States District Court for the
18 Southern District of New York (Scheindlin, J.).
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20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED.
23 Appellant Jerome Bellamy (“appellant”), pro se and
24 incarcerated, appeals from a judgment of the United States
25 District Court for the Southern District of New York
26 (Scheindlin, J.), granting the motions of Mount Vernon
27 Hospital and the State Defendants ** for summary judgment.
28 Appellant commenced this action by asserting claims under,
29 inter alia, the Eighth and Fourteenth Amendments for
**
The “State Defendants” consist of the New York State Department of
Correctional Services (“DOCS”); Dr. Lester Wright, Chief Medical Officer for
DOCS; Dr. Marc Janis; and Dr. J. Pereli.
2
1 deliberate indifference to his serious medical needs and
2 failure to provide medical information. He sought a
3 permanent injunction against the State Defendants. In
4 August of 2008, the district court granted the motions of
5 Mount Vernon Hospital and Dr. Janis for summary judgment.
6 In June of 2009, the district court granted the motions of
7 the DOCS and Dr. Wright for summary judgment. Dr. Pereli
8 was dismissed from the case by the district court pursuant
9 to Fed. R. Civ. P. 4(m).
10 We review orders granting summary judgment de novo and
11 focus on whether the district court properly concluded that
12 there was no genuine issue as to any material fact and that
13 the moving party was entitled to judgment as a matter of
14 law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
15 292, 300 (2d Cir. 2003). In determining whether there are
16 genuine issues of material fact, we are “required to resolve
17 all ambiguities and draw all permissible factual inferences
18 in favor of the party against whom summary judgment is
19 sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.
20 2003) (internal quotation marks omitted). We review a
21 district court’s dismissal pursuant to Federal Rule of Civil
22 Procedure 4(m) for abuse of discretion. See Zapata v. City
23 of N.Y., 502 F.3d 192, 195 (2d Cir. 2007).
3
1 Construing, as we must, all of the facts in appellant’s
2 favor, we conclude after an exhaustive review of the record
3 that the district court properly granted summary judgment to
4 the defendants. Accordingly, we affirm the district court’s
5 judgment for substantially the same reasons as articulated
6 by that court in its orders of August of 2008 and June of
7 2009. Additionally, we cannot say that the court abused its
8 discretion in dismissing Dr. Pereli from the case for
9 failure to serve process. See Fed. R. Civ. P. 4(m). We
10 have considered all of appellant’s remaining arguments and
11 find them to be without merit.
12 For the foregoing reasons, the judgment of the district
13 court is hereby AFFIRMED.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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