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Bennett v. Nesmith, 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 Seco nd Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the City of New York, on the 7th day of November , two thousand thirteen

.

PRESENT: J OHN M. W ALKER

, J R

. , J OSÉ A. C ABRANES

, R AYMOND J. L OHIER

, J R

. ,

Circuit Judges.

_____________________________________

D ELVIL L E B ENNETT

,

Plaintiff

- Appellant

,

v. No

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T ED N ESMITH

, Physician ’ s Assistant

, L ESTER W RIGHT

, Medical Doctor, Deputy Commissioner and Chief Medical Officer, sued in his individual and official capacity

, T IMOTHY W HALEN

, Medical Provider, Dr., sued in his individual and official capacity

,

Defendant s

- Appellees

.

_____________________________________

FOR PLAINTIFF

- APPELLANT : Delville Bennett

, pro se , Malone

, NY.

FOR DEFENDANT

- APPELLEE S: Martin Atwood Hotvet, Assistant Solicitor
General, for Eric T. Sc hneiderman, Attorney

General of the State of New York, Albany

, NY

.2

Appeal from the judgment of the United States District Court for the Northern District of

New York (Gary L. Sharpe, Chief Judge ; David E. Peebles, Magistrate Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the District C ourt ’ s July 21, 2011 judgment is AFFIRMED

.

Plaintiff

- a ppellant Delville Bennett ( “ plaintiff ” ) , proceeding pro se , appeals from the District

C ourt ’ s grant of summary judgment entered in favor of defendant

- a ppellees T imothy Whalen and

Ted Nesmith ( “ defendants ” ) on plaintiff ’ s 42 U.S.C. § 1983 claim . Plaintiff alleged that defendants

acted with deliberate indifference to hi s serious medical needs in vio lation of the Eighth

Amendment by refusing to respond to his complaints of persistent pain after he fell down some

stairs

. 1 W e assume the parties ’ familiarity with the underlying facts and the procedural history of the

case, to which we refer only as necessary to explain our decision to affirm

.

We r eview a grant of summary judgment de novo , viewing the facts “ in the light most

favorable to the non

- moving party and draw[ing] all reasonable inferences in that party ’ s favor. ”

Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is

appropriate where “ there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. ” Fed. R. Civ. P. 56(a). “ Where the record taken as a whole could not

lead a rational trier of fact to fi nd for the non

- moving party, there is no ‘ genuine iss ue for trial. ’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (citation omitted).

A n independent review of the record and rele vant case law reveals that the District C ourt properly adopted the Magistrate J udge ’ s recommendation to grant the motion for summary

judgment. Plaintiff was required to exhaust his administrative remedies by filing a grievance

addressing the claims alleged in the complaint before commencing this law suit; however, the

grievance upon which plaintiff relies in his brief was filed six months before the injury giving rise to

the instant claims. With r egard to the merits , plaintiff has failed to show a genuine dispute over

either prong of his deliberate i ndifference claim: his injury wa s not sufficiently serious to constitute

an Eighth Amendment violation

, and defendants did not consciously disregard an excessive risk to

plaintiff ’ s health.

1 Plaintiff also alleged in his complaint that the defendants retaliated against him for filing grievan ces and that

defendant Wright was deliberately indifferent to his medical needs. However, these claims were not raised in his appellate brief and are deemed abando ned. See LoSacco v. City of Middletown , 71 F.3d 88, 92

- 93 (2d Cir. 1995) (holding, in a civil appeal filed by a pro se appellant, that issues not raised in an appellate brief are abandoned).3

Accordingly, w e a ffirm for substantially the reasons stated by the Magistrate J udge in his

comprehensive February 28, 2011 report and recommendation.

CONCLUSION

We have considered all of the plaintiff ’ s arguments on appeal and find them to be without

merit. For the reasons stated above, we AFFIRM the July 21, 2011 judgment of the District Court.

FOR THE COURT:

Catherine O ’ Hagan Wolfe, Clerk