Davis v. Florence

SUMMARY ORDER

Samuel Davis appeals from the District Court’s grant of summary judgment dismissing his claims under 42 U.S.C. § 1983, as well as pendent state law claims, against various employees and officials at Sullivan Correctional Facility (“Sullivan”). We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm in part, vacate in part, and remand.

To make out a claim of retaliation under the First Amendment, an inmate must establish “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the [inmate], and (3) that there was a causal connection between the protected [conduct] and the adverse action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir.2014) (second alteration in original) (quotation marks omitted).

Davis’s first retaliation claim is that the defendants placed him in Sullivan’s Special Housing Unit (“SHU”) and subjected him to strip frisks for filing numerous grievances against them. A motions panel of this Court previously dismissed the appeal of this claim as lacking any arguable basis in law or fact. There is no compelling reason to revisit that prior ruling. See Shomo v. City of New York, 579 F.3d 176, 186 (2d Cir.2009) (declining to revisit a prior ruling by a motions panel affirming a grant of summary judgment “absent cogent or compelling reasons” (quotation marks omitted)).

Second, Davis claims that a physician’s assistant at Sullivan retaliated against him for filing a grievance against her by refusing to provide Davis more aspirin and instructing Davis’s nurse to do the same. Even if the temporary discontinuation of aspirin were deemed an “adverse action,” there is no evidence from which a factfin-der could reasonably draw a “causal connection between the protected [conduct] and the adverse action.” Holland, 758 F.3d at 225 (alteration in original) (quotation marks omitted). In the context of prisoner retaliation claims, we have required evidence beyond temporal proximity between the protected activity and the adverse action before allowing a prisoner to proceed to trial on such a claim. See Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir.1995). Here temporal proximity “represented the sum total” of Davis’s proof, id. at 873 — he has produced no other evidence establishing a causal connection. We therefore affirm the dismissal of the second retaliation claim.

Davis’s claim of deliberate indifference in violation of the Eighth Amendment was also properly dismissed^ To prevail on such a claim based on prison medical care, an inmate must demonstrate that prison officials “acted with deliberate indifference to [his] serious medical needs.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (quotation marks omitted). Assuming without deciding that Davis demonstrated a “serious medical need,” we agree that he failed to show deliberate indifference to those needs. To the contrary, the evidence shows that prison staff were attentive to Davis’s health issues and that Davis often rejected medical treatment and failed to follow the physical therapy regimen prescribed for him.

We also affirm the dismissal of Davis’s Fourth Amendment claim. “[A] regulation impinging on an inmate’s constitutional rights must be upheld if it is reasonably related to legitimate penological interests.” Florence v. Bd. of Chosen Freeholders, — U.S. -, 132 S.Ct. 1510, 1515, 182 L.Ed.2d 566 (2012) (quotation marks omitted). On this record, the defendants showed that their practice of having a supervisory officer present during strip frisks and recording strip frisks via wall-mounted video camera is reasonably related to the legitimate interests in both inmate and staff security at Sullivan. On appeal, Davis mounts a facial challenge and argues that the performance of strip frisks upon admission to the SHU and absent individualized reasonable, suspicion that an inmate is concealing contraband violates the Fourth Amendment. Because this argument presents constitutional issues, we have searched the record to assure that it was properly preserved below. We conclude that Davis forfeited this argument because his complaint and his arguments at the summary judgment stage (even when construed liberally) challenged only the presence of supervisory officers and the video recording of strip frisks, not the strip frisks themselves.

In granting summary judgment, the District Court neglected to address Davis’s pendent state law claims and due process claim relating to his administrative segregation reviews. Accordingly, we vacate the judgment of the District Court with respect to those claims for the District Court on remand to consider them in the first instance. See Bano v. Union Carbide Corp., 273 F.Sd 120, 132-33 (2d Cir.2001).

We have considered Davis’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further proceedings consistent with this order.