Ventura v. Sinha , 379 F. App'x 1 ( 2010 )

09-0848-pr
Ventura v. Sinha, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX 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.
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 11th day of May, two thousand ten.
PRESENT:
PIERRE N. LEVAL,
BARRINGTON D. PARKER,
ROBERT A. KATZMANN,
Circuit Judges.
__________________________________________
Jose A. Ventura,
Plaintiff-Appellant,
v. 09-0848-pr
Dr. Sinha, Nurse Baccacio, Nurse Betty, E. Minardo,
Program Committee, Sergeant Sullivan, Officer A.
Miller, Officer G. Peperone, Officer Montanari,
Officer M. Lessard,
Defendants-Appellees,
Orleans Correctional Facility, Sally B. Johnson,
Nurse Administrator Jane Doe, C.A. Preiss, Sergeant
John Doe, Officer John Doe, Lieutenant MacFolling,
Defendants.
__________________________________________
FOR APPELLANT: Jose A. Ventura, pro se, Rome, N.Y.
FOR APPELLEES: Andrew M. Cuomo, Attorney General for the
State of New York; Barbara D. Underwood,
Solicitor General; Andrea Oser, Deputy
Solicitor General; Martin A. Hotvet,
Assistant Solicitor General (on the brief),
Albany, N.Y.
Appeal from a judgment of the United States District Court
for the Western District of New York (Skretny, C.J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED, in
part, and that the appeal be DISMISSED, in part, without
prejudice to reinstatement.
Appellant Jose A. Ventura, pro se, appeals the district
court’s grant of the Defendants’ motion for summary judgment,
dismissing his 42 U.S.C. § 1983 claims against Edward Minardo and
Dr. Brij Sinha for deliberate indifference to a serious medical
need; the district court’s grant of the Defendants’ pre-trial
motion in limine; and the district court’s judgment, following a
jury trial, for the remaining Defendants on Ventura’s excessive
force claims. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the
issues on appeal.
I. Summary Judgment
Ventura does not challenge on appeal the district court’s
grant of summary judgment to defendants Baccacio and Fassio as to
2
his deliberate indifference claims, or to Defendant Lessard as to
his excessive force claim arising from the December 14, 1999
incident.
We review orders granting summary judgment de novo and focus
on whether the district court properly concluded that there was
no genuine issue as to any material fact and the moving party was
entitled to judgment as a matter of law. See Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Republic
Nat’l Bank v. Delta Airlines, 263 F.3d 42, 46 (2d Cir. 2001). In
determining whether there are genuine issues of material fact, we
are “required to resolve all ambiguities and draw all permissible
inferences in favor of the party against whom summary judgment is
sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Even construing all the facts in Ventura’s favor, the record
shows that the district court properly granted summary judgment
to Minardo and Sinha as to Ventura’s claims for deliberate
indifference. To establish 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, 834-35 (1994). This standard consists
of two components: (1) “[o]bjectively, 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 (2) “[s]ubjectively, the charged official must act
with a sufficiently culpable state of mind[;] . . . something
3
more than mere negligence,” and akin to criminal recklessness.
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal
quotations omitted). However, not every claim of inadequate
medical care made by a prisoner states a violation of the Eighth
Amendment. See Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d
Cir. 2006). Indeed, we have observed that a disagreement with
the medical care provided is insufficient to state a
constitutional claim; “[t]he essential test is one of medical
necessity and not one simply of desirability.” Dean v. Coughlin,
804 F.2d 207, 215 (2d Cir. 1986); see Chance v. Armstrong, 143
F.3d 698, 703 (2d Cir. 1998) (“It is well-established that mere
disagreement over the proper treatment does not create a
constitutional claim.”).
Here, Ventura’s deliberate indifference claim against
Minardo failed because there was no evidence that he acted with a
sufficiently culpable state of mind. See Hathaway, 99 F.3d at
553. The undisputed record shows that Minardo reasonably denied
Ventura’s request for a program change in September 1999 because
his medical limitations at that time were not inconsistent with
the requirements on participants in the Commercial Arts program.
Additionally, even if Ventura’s revised November medical
limitations slip should have been understood as barring him from
participating in that program, Minardo was never made aware of
these new limitations. Thus, because the record shows that
4
Minardo did not “know[] of and disregard[] an excessive risk to
[Ventura’s] health or safety,” summary judgment was appropriate
as to this claim. Id.; see id. (“[T]he official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
that inference.”).
Summary judgment was also proper as to Ventura’s deliberate
indifference claim against Sinha. Ventura argued below, and
continues to argue on appeal, that Sinha violated his Eighth
Amendment rights by failing to timely provide necessary medical
treatment—and, specifically, referral to an orthopedic
specialist—following the injuries he allegedly sustained on
November 9, 1999. However, as the district court correctly
observed, Ventura’s examination by medical staff on that date
failed to reveal any injuries apart from a small scratch on his
forehead, and diagnostic tests and X-rays confirmed no remarkable
results. Moreover, Ventura responded positively to the treatment
prescribed by Sinha, and Ventura failed to offer any evidence
disputing Sinha’s diagnosis of his medical condition, or showing
that the treatment he received was inadequate given his
condition. Accordingly, because Ventura showed no more than that
he disagreed with the course of treatment he received, his
constitutional claim failed as a matter of law. Summary judgment
was therefore appropriate. See Chance, 143 F.3d at 703 (“So long
5
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.”).
II. Motion In Limine and the Jury Verdict
Ventura challenges the district court’s grant of the
Defendants’ pre-trial motion in limine, barring him from
providing testimony on the cause of his injuries allegedly
resulting from an assault by the Defendants on November 9, 1999,
and, construing his brief broadly, appears to challenge the jury
verdict as to his excessive force claims against Defendants
Sullivan, Peperone, and Montanari. We review a district court’s
evidentiary rulings for abuse of discretion, “and will reverse
only if an erroneous ruling affected a party’s substantial
rights.” Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d
Cir. 2005).
However, under Federal Rule of Appellate Procedure 10(b),
within 10 days after the filing of a notice of appeal, the
appellant must either (1) order transcripts from any proceedings
that are necessary to the appeal from the reporter and file such
order with the district court; or (2) file a certificate stating
that no transcript will be ordered. In the past, we have
dismissed appeals of issues related to a jury trial where
appellant failed to provide a trial transcript. See Wrighten v.
Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (dismissing the portion
6
of the appeal challenging post-trial findings because transcripts
from those proceedings were not provided); Gayle v. Walker, 148
F.3d 214, 214 (2d Cir. 1998) (dismissing pro se appeal without
prejudice to reinstatement for failure to file transcripts). In
those cases, we explained that the failure to provide relevant
transcripts deprives us of the ability to conduct meaningful
appellate review. See, e.g., Wrighten, 232 F.3d at 120.
Here, we cannot determine whether the district court abused
its discretion by granting the Defendants’ motion in limine
without reviewing the transcript from the January 9, 2009 hearing
on that motion. Similarly, to the extent Ventura challenges any
aspect of the jury verdict, we cannot review that claim of error
absent a complete trial transcript. Accordingly, given the lack
of transcripts, Ventura’s appeal from the district court’s grant
of the Defendants’ motion in limine and the jury verdict is
DISMISSED, without prejudice to reinstatement, provided that,
within 30 days of the date of this order, Ventura provides this
Court with: (1) the transcript; (2) proof that he has ordered the
transcript; or (3) proof that he has moved in the district court
for a free trial transcript under 28 U.S.C. § 753(f).* See
*
Under 28 U.S.C. § 753(f), “[f]ees for transcripts
furnished in . . . proceedings to persons permitted to appeal in
forma pauperis shall . . . be paid by the United States if the
trial judge or a circuit judge certifies that the appeal is not
frivolous (but presents a substantial question).” Thus, to the
extent Ventura moves for free transcripts in the district court
pursuant to this statute, he must satisfy this standard.
7
Gayle, 148 F.3d at 214. Upon timely filing of a transcript in
the record on appeal, the appeal will be reinstated. While
Ventura previously sought transcripts under 28 U.S.C. § 753(f) in
the district court, he did not describe the “substantial
questions” he intended to raise on appeal. If he wishes to
obtain free transcripts from the district court, he must file a
second motion under 28 U.S.C § 753(f) setting out the trial-
related claims described above.
For the foregoing reasons, the judgment of the district
court is hereby AFFIRMED, and the appeal is DISMISSED, in part,
without prejudice to reinstatement.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8