18

‐ 545

‐ pr

Ezra Benjamin v. Dr. Omprakash Pillai

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 ʹ 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 ʺ SUMMARY ORDER ʺ ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 6 th day of November, two thousand nineteen.

PRESENT: DENNY CHIN,

JOSEPH F. BIANCO,

Circuit Judges

. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

EZRA BENJAMIN,

Plaintiff

‐ Appellant,

v. 18

‐ 545

‐ pr

DR. OMPRAKASH PILLAI,

Defendant

‐ Appellee

. †

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR PLAINTIFF

‐ APPELLANT: JOHN W. CERRETA (Rosendo Garza, Jr., on the

brief ), Day Pitney LLP, Hartford, Connecticut.

* Judge Barrington D. Parker, originally assigned to the panel, recused himself from

consideration of this matter. The two remaining members of the panel, who are in agreement,

have decided this case in accordance with Second Circuit Internal Operating Procedure E(b).

See 28 U.S.C. § 46(d).

† The Clerk of Court is respectfully directed to amend the official caption as set forth above.2 FOR DEFENDANT

‐ APPELLEE: JANELLE R. MEDEIROS, Assistant Attorney

General (Matthew B. Beizer, Assistant Attorney

General, on the brief ), for William Tong,

Attorney General of Connecticut, Hartford,

Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Meyer, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff

‐ appellant Ezra Benjamin appeals from a judgment of the district

court entered February 7, 2018, dismissing his 42 U.S.C. § 1983 lawsuit against

defendant

‐ appellee Dr. Omprakash Pillai.

Benjamin, an inmate at the MacDougall Correctional Institute in

Connecticut, alleged that Dr. Pillai violated his federal constitutional rights under the

First and Eighth Amendments of the U.S. Constitution by denying him medical

treatment for a back condition and threatening him with retaliation for filing grievances

about his lack of medical treatment. Benjamin filed suit against Dr. Pillai and others,

and, on June 23, 2017, Dr. Pillai moved for summary judgment.

On February 5, 2018, the district court granted summary judgment in

favor of Dr. Pillai on all of Benjamin ʹ s claims. The district court concluded that no

genuine issue of fact existed as to whether (1) Benjamin was the victim of deliberate

indifference to his medical needs, and (2) Dr. Pillai retaliated against Benjamin for filing3 medical grievances. We assume the parties ʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

Construed in the light most favorable to Benjamin, the facts are as follows:

Dr. Pillai is a physician who works at several correctional facilities, including

MacDougall Correctional. Benjamin has suffered from chronic sciatic nerve pain since

approximately June 2015. On June 13, 2016, Benjamin requested medical treatment for

his lower back pain as well as a cane and back brace. On June 17, 2016, Benjamin

submitted a medical request complaining of lower back pain. On July 7, 2016, Benjamin

submitted his first medical grievance, complaining of his lack of treatment.

On July 15, 2016, Dr. Pillai conducted a medical examination of Benjamin.

After examining Benjamin, Dr. Pillai recommended blood and urine tests, back

exercises, weight loss, a prescription for Naproxen, and lumbar x

‐ rays. The same day,

Dr. Pillai entered orders for the Naproxen and lumbar x

‐ rays. The medical orders,

however, were not filled immediately as a change in pharmacy policy prevented the

dispensation of Naproxen as prescribed by Dr. Pillai. That same day, on July 15, 2016,

Dr. Pillai called Benjamin a ʺ pain in the ass ʺ and threatened to withhold medical

treatment if Benjamin continued to file grievances. J. App ʹ x at 201.

After experiencing ongoing ʺ excruciating pain, ʺ Benjamin filed another

grievance on August 22, 2016, detailing his medical symptoms and requesting a cane. J.

App ʹ x at 206. Benjamin filed another grievance on August 30, 2016, requesting a4 wheelchair due to pain he experienced while walking. On September 1, 2016, Dr. Pillai

corrected the Naproxen prescription.

On September 9, 2016, Benjamin underwent a lumbar x

‐ ray examination.

On October 17, 2016, Dr. Pillai reviewed the lumbar x

‐ ray with Benjamin and noted that

the x

‐ ray was ʺ unremarkable. ʺ J. App ʹ x at 163. The record does not explain what

caused the delay from Dr. Pillai ʹ s x

‐ ray order on July 15, 2016, until the examination on

September 9, 2016. Nor does the record explain what caused the delay from the x

‐ ray to

the day Dr. Pillai reviewed the results with Benjamin.

Based on the results of the x

‐ ray examination, Dr. Pillai ordered an MRI

and submitted the request to the Utilization Review Committee ( ʺ URC ʺ ). The URC

approved the MRI and a muscle relaxer for Benjamin. The MRI examination revealed

that Benjamin had disc bulges in his spine, spinal stenosis, and a hemangioma. After

reviewing the results, Dr. Pillai sent the URC a request for steroid injections and a

neurosurgery consultation. The URC approved the steroid injections and denied the

neurosurgery consultation. Despite receiving these medications, Benjamin continued to

suffer from back pain. This litigation followed.

STANDARD OF REVIEW

We review de novo the district court ʹ s grant of summary judgment. Garcia

v. Hartford Police Dep ʹ t

, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary5 judgment is appropriate if ʺ there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. ʺ Fed. R. Civ. P. 56(a).

DISCUSSION

On appeal, Benjamin challenges the district court ʹ s dismissal of his Eighth

Amendment and First Amendment claims.

1. Eighth Amendment Deliberate Indifference Claim

To establish an Eighth Amendment violation based on inadequate medical

care, a prisoner must satisfy objective and subjective components. See Hill v. Curcione

,

657 F.3d 116, 122 (2d Cir. 2011). We apply a two

‐ part inquiry to determine whether an

alleged deprivation is objectively serious. See Salahuddin v. Goord

, 467 F.3d 263, 279

‐ 80

(2d Cir. 2006). First, with respect to the objective component, a prisoner must

demonstrate that (1) he ʺ was actually deprived of adequate medical care, ʺ and (2) the

ʺ inadequacy in medical care [wa]s sufficiently serious. ʺ Id. at 280. Second, to satisfy the

subjective component, a prisoner must show deliberate indifference, i.e.

, that the

charged official possessed ʺ a state of mind that is the equivalent of criminal

recklessness. ʺ Hathaway v. Coughlin

, 99 F.3d 550, 553 (2d Cir. 1996).

Deliberate medical indifference claims can generally arise in two kinds of

cases. First, in cases where the prisoner is deprived of all medical care, ʺ courts examine

whether the inmate ʹ s medical condition is sufficiently serious. ʺ Salahuddin

, 467 F.3d at

280. Second, in cases where a prisoner alleges ʺ a temporary delay or interruption in the6 provision of otherwise adequate medical treatment, it is appropriate to focus on the

challenged delay or interruption in treatment rather than the prisoner ʹ s underlying medical

condition alone. ʺ Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (citing Chance v.

Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (emphases in original)).

The district court concluded that Benjamin had likely offered sufficient

evidence showing ʺ a serious medical need ʺ to survive summary judgment. J. App ʹ x at

266 (concluding that ʺ there is at least a genuine fact issue to show that plaintiff ʹ s

medical condition was a sufficiently serious medical need for purposes of sustaining an

Eighth Amendment claim ʺ ). The district court noted that there was a ʺ closer question ʺ

regarding whether there was a genuine issue of fact suggesting Benjamin was ʺ actually

deprived of appropriate [medical] treatment. ʺ J. App ʹ x at 266. The district court

distinguished between cases involving a ʺ denial of treatment ʺ and other cases involving

a ʺ delay in treatment ʺ and held that the delay in Benjamin ʹ s treatment was not

ʺ sufficiently serious ʺ for Eighth Amendment purposes. ʺ J. App ʹ x at 267

‐ 68. The district

court did not address the subjective prong of a deliberate indifference claim because it

held that Benjamin failed to establish a genuine issue of material fact relating to the

objective prong of the analysis.

a. Denial of Medical Treatment

As an initial matter, Benjamin ʹ s argument that Dr. Pillai failed to provide

any treatment is contradicted by the record. The record shows that Dr. Pillai provided7 Benjamin several forms of treatment, including: instructions for lumbar exercises, a

request for lumbar x

‐ rays, a recommendation to take Tylenol and reduce his weight, a

prescription for Naproxen, and, eventually, a request for an MRI, a muscle relaxer,

steroid injections, and a neurosurgery consultation. Accordingly, we agree with the

district court that no rational jury could conclude that Dr. Pillai did not treat Benjamin

at all.

b. Delay in Medical Treatment

Next, the district court considered two separate delays in medical

treatment: (1) the seven

‐ week delay in obtaining Naproxen, and (2) the eight

‐ week

delay in obtaining the lumbar x

‐ ray. After reviewing these delays, the district court

concluded that no rational jury could find that the delays contributed to Benjamin ʹ s

pain or that the delays were ʺ sufficiently serious to support a constitutional violation. ʺ

J. App ʹ x at 268.

Here, the record shows that any delay in receiving the Naproxen was

insignificant because the Naproxen could not alleviate Benjamin ʹ s pain. Indeed,

Benjamin admitted that the Naproxen was ineffective in managing his back pain.

Moreover, even assuming Dr. Pillai ʹ s delay in correcting Benjamin ʹ s Naproxen

prescription did contribute to his pain, Dr. Pillai ʹ s alleged unawareness of the pharmacy

policy supports, at most, an inference of negligence. Negligence, however, is

insufficient to sustain a deliberate indifference claim under the Eighth Amendment.8 See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (medical malpractice alone does

not amount to deliberate indifference).

The delay in receiving his x

‐ ray is a more complicated matter as there may

be triable questions as to whether this delay was ʺ sufficiently serious. ʺ The delay in x

‐

rays arguably delayed the MRI and steroid treatment, arguably prolonging Benjamin ʹ s

back pain. Nonetheless, we may affirm the district court ʹ s judgment ʺ on any ground

appearing in the record even if the ground is different from the one relied on by the

district court[,] ʺ ACEquip Ltd. v. Am. Eng ʹ g Corp.

, 315 F.3d 151, 155 (2d Cir. 2003), and on

this record no reasonable jury could find that Dr. Pillai acted with deliberate

indifference. There is no evidence suggesting that Dr. Pillai had any influence on the

scheduling of the x

‐ ray or MRI, or that Dr. Pillai deviated from the ordinary standard of

care in providing medical assistance to Benjamin. Indeed, the record shows that Dr.

Pillai ordered various pain medications, submitted requests for advanced testing, and

provided Benjamin with exercises for his pain. Accordingly, no rational jury could find

that Dr. Pillai possessed the culpable state of mind to satisfy the subjective standard of a

deliberate indifference claim. See Hathaway

, 99 F.3d at 553. Therefore, we conclude that

Benjamin cannot sustain a deliberate indifference claim as a matter of law.

2. First Amendment Retaliation Claim

To establish a First Amendment retaliation claim, a plaintiff must

show ʺ (1) that the speech or conduct at issue was protected, (2) that the defendant took9 adverse action against the plaintiff, and (3) that there was a causal connection between

the protected speech and the adverse action. ʺ Gill v. Pidlypchak

, 389 F.3d 379, 380 (2d

Cir. 2004). This Court examines prisoner retaliation claims ʺ with skepticism and

particular care, because virtually any adverse action taken against a prisoner by a

prison official

‐‐ even those otherwise not rising to the level of a constitutional violation

‐‐ can be characterized as a constitutionally proscribed retaliatory act. ʺ Davis v. Goord

,

320 F.3d 346, 352 (2d Cir. 2003) (internal quotation marks omitted) (quoting Dawes v.

Walker, 239 F.3d 489, 491 (2d Cir. 2001)).

Here, Benjamin claims that Dr. Pillai refused to provide him medical care

in retaliation for filing grievances. Specifically, Benjamin alleges that Dr. Pillai called

him a ʺ pain in the ass ʺ and warned him to stop writing grievances or else Dr. Pillai

would refuse to provide medical treatment. J. App ʹ x at 201. As this Court has

previously stated, however, insulting comments do not rise to the level of retaliatory

conduct to sustain a First Amendment claim. See Davis

, 320 F.3d at 353 (holding that

ʺ [i]nsulting or disrespectful comments directed at an inmate generally do not rise to ʺ a

level of retaliatory conduct). At the same time that Dr. Pillai was apparently calling

Benjamin a ʺ pain in the ass, ʺ he was also prescribing treatment. J. App ʹ x at 201.

Next, Benjamin argues that Dr. Pillai wrote a prescription for Naproxen in

violation of pharmacy policy, but cites no evidence showing that Dr. Pillai was aware of

the change in pharmacy policy or the issue with his Naproxen prescription. Instead, the10 record shows that Dr. Pillai became aware of an issue with the Naproxen prescription

on September 1, 2016, and corrected the prescription that same day. Moreover,

evidence in the record shows that after the delay in receiving the lumbar x

‐ ray and

Naproxen, Dr. Pillai continued to provide advanced medical treatment including

diagnostic tests, other prescriptions, and a recommendation for a neurosurgery

consultation. For these reasons, we affirm the district court ʹ s grant of summary

judgment because no rational jury could conclude that Dr. Pillai retaliated against

Benjamin by failing to provide medical treatment.

* * *

We have considered Benjamin ʹ s remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk