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22-2729-pr

Vidal v. State of New York

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 Thurgood Marshall United States Courthouse, 40 Foley Square, 

in the City of New York, on the 8th day of March, two thousand twenty-four.

PRESENT:

JOHN M. WALKER, JR.,

SUSAN L. CARNEY,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

Joseph Vidal,

Plaintiff-Appellant,

v. 22-2729

Anthony J. Annucci, Acting Commissioner, State 

of New York Department of Corrections and 
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Community Supervision, Anthony Rodriguez, 

Acting Director of Special Housing Unit/Inmate 

Disciplinary Program, Eric Corbett, Food Service 

Administrator/Disciplinary Hearing Officer, Great 

Meadow Correctional Facility, Christopher Miller, 

Superintendent, Great Meadow Correctional 

Facility, Nicole Zimmerman, Offender 

Rehabilitation Coordinator/Disciplinary 

Employee Assistant, Great Meadow Correctional 

Facility, Rod Eastman, Deputy Superintendent for 

Security Services, Great Meadow Correctional 

Facility, 

Defendants-Appellees,

State of New York, Department of Corrections and 

Community Supervision, Phil Melecio, Deputy 

Superintendent for Programs, Michael Iffert, 

Correction Officer, Great Meadow Correctional 

Facility, Daniel Styczynski, Correction Officer, 

Great Meadow Correctional Facility, Matthew 

Waters, Grievance Supervisor, Great Meadow 

Correctional Facility, Bradlee Tyler, Grievance 

Supervisor, Great Meadow Correctional Facility, 

Brandi Collyer, Grievance Supervisor, Upstate 

Correctional Facility, Stephanie Pelo, Grievance 

Supervisor, Upstate Correctional Facility, Sandra 

D. Danforth, Deputy Superintendent for 

Administrative Services, Upstate Correctional 

Facility, Carl J. Koenigsmann, M.D., Deputy 

Commissioner/ Chief Medical Officer, DOCCS, 

Kimply Lipka, Nurse, Great Meadow Correctional 

Facility, Nancy Smith, Nurse Administrator, 

Upstate Correctional Facility, George Waterson, 
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Nurse, Upstate Correctional Facility, Lordi 

Rosanna, Nurse, Upstate Correctional Facility, 

Kathleen K. White, Designated FOIL Officer at 

Great Meadow Correctional Facility, David 

Infantino, Deputy Commissioner of CORC, 

DOCCS, Leslie Becher, Deputy Commissioner of 

CORC, DOCCS, Anthony Wallace, Deputy 

Commissioner of CORC, DOCCS, Mary TandyWalters, Deputy Commissioner of CORC, DOCCS, 

Opal Rivera, Deputy Commissioner of CORC, 

DOCCS, David Harvey, Assistant Counsel, 

DOCCS, Karen R, Bellamy, Former Director, 

Inmate Grievance Program, Central Office Review 

Committee, 

Defendants.

_____________________________________

FOR PLAINTIFF-APPELLANT: Joseph Vidal, pro se,

Napanoch, NY.

FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, 

Solicitor General, 

Andrea Oser, Deputy 

Solicitor General, Sean P. 

Mix, Assistant Solicitor 

General, for Letitia 

James, Attorney General 

of the State of New York, 

Albany, NY.
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Appeal from a September 26, 2022 judgment of the United States District 

Court for the Northern District of New York (Gary L. Sharpe, Judge; Daniel J. 

Stewart, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

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

AFFIRMED. 

Appellant Joseph Vidal, a state prisoner proceeding pro se, alleged via 42 

U.S.C. § 1983 that the defendants—the New York State Department of Corrections 

and Community Supervision (“DOCCS”) and several of its officers and 

employees, both at his facility and elsewhere—were deliberately indifferent to the 

freezing temperature in his cell and that they improperly conducted disciplinary 

proceedings, in violation of his constitutional rights under the Eighth and 

Fourteenth Amendments. 1 Adopting a magistrate judge’s report and 

recommendation, the district court granted summary judgment to the defendants 

on both claims. Though Vidal timely appealed, he has abandoned the 

1 Vidal raised other claims that were resolved before the summary judgment stage. We 

do not recite them, as he does not challenge their disposition in this appeal.
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disciplinary hearing claim by failing to brief it. See LoSacco v. City of Middletown, 

71 F.3d 88, 92 (2d Cir. 1995). We otherwise assume the parties’ familiarity with 

the remaining underlying facts, the procedural history, and the issues on appeal. 

We review a grant of summary judgment de novo. Garcia v. Hartford Police 

Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment is 

appropriate only if, after resolving all ambiguities and drawing all inferences 

against the moving party, “there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Id. at 126–27 (quoting Fed. 

R. Civ. P. 56(a)). “An issue of fact is genuine if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Jeffreys v. City 

of New York, 426 F.3d 549, 553 (2d Cir. 2005) (internal quotation marks omitted). 

Because Vidal has proceeded pro se throughout, we liberally construe his filings to 

raise the strongest arguments they suggest. See Publicola v. Lomenzo, 54 F.4th 108, 

111 (2d Cir. 2022) (per curiam).

“In order to establish a violation of his Eighth Amendment rights, an inmate 

must show (1) a deprivation that is objectively, sufficiently serious that he was 

denied the minimal civilized measure of life's necessities, and (2) a sufficiently 
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culpable state of mind on the part of the defendant official, such as deliberate 

indifference to inmate health or safety.” Gaston v. Coughlin, 249 F.3d 156, 164 (2d 

Cir. 2001) (internal quotation marks omitted). “The charged official must be 

subjectively aware that his conduct creates such a risk.” Salahuddin v. Goord, 467 

F.3d 263, 281 (2d Cir. 2006). 

Here, assuming that freezing temperature was a sufficiently serious 

condition of confinement within the meaning of the Eighth Amendment, we agree 

with the district court that Vidal failed to demonstrate that the defendants acted 

with the requisite deliberate indifference to his health and safety. He did not 

provide evidence that Deputy Superintendent of Security Rod Eastman or

Superintendent Christopher Miller knew of the temperature in his cell or any

problem with the heating in the six days from February 11 through February 16, 

2016. On the contrary, Eastman and Miller declared that they had no knowledge 

of any freezing temperature in Vidal’s housing unit in February 2016. Cf. Gaston, 

249 F.3d at 165–66 (reversing summary judgment on Eighth Amendment claim 

because “defendants did not submit an affidavit or other sworn evidence . . . 

denying that they had knowledge of or responsibility for the freezing and 
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unsanitary conditions”).

We do not find on the record before us that the prison’s internal 

investigation of Vidal’s complaint and his subsequent appeal support the 

allegation that Eastman had knowledge of the alleged problem with heating or the 

temperature in Vidal’s cell. An area supervisor reported to the Inmate Grievance 

Supervisor that the heating in Vidal’s housing unit was working properly, and that 

“the temperature [was] within an acceptable level.” Dist. Ct. Dkt. No. 60-8 at 10.

The Inmate Grievance Supervisor then relayed this information to the Incarcerated 

Grievance Resolution Committee, and the Committee denied his grievance. The 

superintendent, Eastman, denied the appeal as unsubstantiated based upon the 

report from facility staff. While Eastman had been aware of Vidal’s complaint, 

the record demonstrates that following an investigation by facility maintenance 

staff, he received assurances that the heating was working properly.

Vidal also objects to the district court’s management of discovery. 

However, we agree with Defendants-Appellees that he forfeited his challenge to 

the denial of additional discovery by failing to file a Rule 56(d) affidavit. See 

Elliott v. Cartagena, 84 F.4th 481, 493 (2d Cir. 2023) (describing the Rule 56(d) 
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process). Vidal concedes that he failed to file such an affidavit. See Paddington 

Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) (“[F]ailure to file an affidavit 

under Rule 56([d]) is itself sufficient grounds to reject a claim that the opportunity 

for discovery was inadequate . . . .”).

Finally, to the extent he intends to contest earlier magistrate judge orders on 

the discovery process and the denial of appointment of counsel, Vidal forfeited 

appellate review of those orders by failing to seek the district court’s review of 

them. See Fed. R. Civ. P. 72(a); Spence v. Maryland Cas. Co., 995 F.2d 1147, 1155 (2d 

Cir. 1993). In any event, even if Vidal had not forfeited appellate review of those 

orders, the magistrate judge’s decision denying these motions represented a 

reasonable exercise of discretion.

We have considered Vidal’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court