2 1

- 2 841

- pr Rodriguez v. Gusman

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 NO TATION “ 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 8 t h day of J a n u a r y , two thousand twenty

- three

. 3 4 PRESENT: DENNIS JACOBS , 5 RAYMOND J. LOHIER, JR. , 6 ALISON J. NATHAN, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 10 JOSE RODRIGUEZ , 11 12 Plaintiff

- Ap pellant , 13 14

v. No. 2 1

- 2841

- pr 15 16 DR. GUSMAN, MEDICAL DIRECTOR, 17 EASTERN CORRECTIONAL FACILITY, FKA 18 DR. GUZMAN, FKA DR. GUSMAN, NANCY 19 ANTHONY, REGISTERED NURSE, EASTERN 20 CORRECTIONAL FACILITY, FKA MS. 212 ANTHONY, DR. ANN ANDOLA, REGISTERED 1 NURSE, EASTERN CORRECTIONAL FACILITY, 2 FKA MS. ANNDOLA, FKA DOCTOR 3 ANANDOLAS, JEFFREY MCKOY, DR. BIPIN 4 BHAVSAR, EASTERN CORRECTIONAL 5 FACILITY, MEGAN MCGLYNN, ROGER 6 TRAYNOR, DAVID JACOBS, AMANDA 7 DEMSHICK , 8 9 Defendant s

- Appell ees , 10 11 THOMAS GRIFFIN, SUPERINTENDENT 12 AND/OR CHIEF EXECUTIVE OFFICER, 13 EASTERN CORRECTIONAL FACILITY, DR. 14 JOHN DOE 1

- 10, HEALTH CARE PROVIDE, 15 EASTERN CORRECTIONAL FACILITY, JANE 16 DOE, REGISTERED NURSE, EASTERN 17 CORRECTIONAL FACILITY, JOHN/JANE DOE, 18 NURSE ADMINISTRATOR OF MEDICAL 19 SERVICES, EASTERN CORRECTIONAL 20 FACILITY, NEW YORK STATE D EPARTMENT 21 OF CORRECTIONS AND COMMUNITY 22 SUPERVISION, ANTHONY J. ANNUCCI, 23 BRIAN FISCHER, DARWIN LACLAIR, 24 JOHN/JANE DOE, DOCCS ADMINISTRATOR, 25 JOHN/JANE DOE, PRISON ADMINISTRATOR, 26 BRIAN MCCULLOUGH , 27 28 Defendant s

. 29 30

------------------------------------------------------------------ 31 32 FOR PLAINTIFF

- APPELLANT: M ATTEO G ODI ( Jane B. O’Brien , 33 on the brief ), Paul, Weiss, 34 Rifkind, Wharton & Garrison 353 LLP, Washington, DC 1 2 FOR DEFENDANTS

- APPELLEES: S ARAH L. R OSENBLUTH , 3 Assistant Solicitor General 4 (Barbara D. Underwood, 5 Solicitor General, Victor 6 Paladino, Senior Assistant 7 Solicitor General, on the brief ), 8 for Letitia James , Attorney 9 General for the State of New 10 York , New York, NY 11 12 Appeal from a judgment of the United States District Court for the 13

Northern District of New York ( Mae A. D’Agostino , Judge ). 14
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 15

AND DECREED that the judgment of the District Court is AFFIRMED

. 16

Jose Rodriguez appeals f rom a grant of summary judgment entered in the 17

United States District Court for the Northern District of New York ( D’Agostino , 18

J. ) in favor of the Defendants

- A ppell ee s on Rodriguez’s claim s , under 42 U.S.C. § 19

1983 , of deliberate indifference to his serious medical needs in violation of the 20
Eighth Amendment, retalia tory transfer in violation of the First Amendment, and 21

denial of access to the courts i n violation of the First Amendment. We assume 22
the parties’ familiarit y with the underlying facts and the record of prior 23
proceedings, to which we refer only as necessary to explain our decision to 244 affirm. 1 1

I. Background 2
While incarcerated at Eastern Correctional Facility, Rodriguez complained 3
of a racing heart rate, palpitat ions, and headaches , and was diagnosed with 4
“elevated” blood pressure

. From 2008 to 2011, Rodriguez underwent multiple 5
electrocardiogram s a nd blood tests , all of which were normal. Tragically, 6

however, i n 2012 Rodriguez suffered a hemorrhagic stroke while exercising , and 7

he is now permanently disabled

. 8
Following his stroke, Rodriguez was transferred to Shawangunk 9
Correctional Facility, a maximum security prison

. A ccording to Rodriguez, 10
years later, in May 2016 “a Shawangunk guard told [him] that he knew

. . . 11
Rodriguez ‘wanted to get money from the State.’” Joint App’x 41. In July , 12
approximately two months this comment , Rodriguez was transferred to Franklin 13
Correctional Facility, a medium security prison. The re, prison officials strictly 14

enforced a New York State Department of Corrections and Community 15
Supervision (“DOCCS”) directive that limited Rodriguez to one 30

- minute 16

1 We previously described some of these facts and prior proceedings in great er detail. See Rodriguez v. Gusman , 974 F.3d 108, 11 0

– 113 (2d Cir. 2020).5 “attorney legal call [] ” every 30 days (“DOCCS Directive 4423”)

. Rodriguez was 1

released in 2017 and deported to the Dominican Republic. 2
In 2018 Rodriguez filed t he operative complaint in this case. A s noted, 3
Rodriguez claims that the Defendants : (1) were deliberate ly indifferen t to his 4

serious medical need s , in violation of the Eighth Amendment; (2) retaliated 5
against him for filing this lawsuit by transferring him to another correctional 6
facility , in violation of the First Amendment; and (3) den ied him access to the 7

courts , again in violation of the First Am endment

. The District Court granted 8
summary judgment in favor of the Defendants on all three claims

. 9

II. Discussion 10
“Summary judgment is proper only when, construing the evidence in the 11
light most favorable to the non

- movant, ‘there is no genuine dispute as to any 12
material fact and the movant is entitled to judgment as a matter of law.’” 13
Doninger v. Niehoff , 642 F.3d 3 34, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 14
56(a)). 15

A. Deliberate Indifference 16

“ In order t o establish an Eighth Amendment claim arising out of 17
inadequate medical care, a prisoner must prove deliberate indifference to his 186 serious medical needs.” Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir. 1998) 1
(cleaned up). Every deliberate indifference claim must satisfy an objective and 2
a subjective component: “First, the alleged deprivation must be, in objective 3
terms, sufficiently serious. Second, the defendan t must act with a sufficiently 4
culpable state of mind.” Id. (quotation marks omitted). The defendant must 5
have been “actually aware of a substantial risk that serious inmate harm w[ould] 6

result.” Salahuddin v. Goord , 467 F.3d 263, 280 (2d Cir. 2006). 7
Rodriguez failed to establish the subjective component of his deliberate 8

indifference claim. A lthough Rodriguez contends that the Defendants should 9
have prescribed “standard medications for treating high blood pressure . . . [ such 10

as ] beta blockers, calci um channel blockers, and ACE inhibitors,” and ordered 11

more extensive “ tests that can help detect a risk of stroke, including MRIs and 12

Holter monitors ,” Appellant’s Br. 23 , there is no genuine factual dispute that (1) 13

his blood pressure was continuously monitored , (2) he was issued a blood 14
pressure card, and (3) following his complaints, an electrocardiogram and 15

bloodwork were ordered and produced normal results. Especially in light of 16

these measures and his normal test results, Rodriguez has not adduced evidence 17
that any act or failure to act by the Defendants reflects a conscious disre gard of a 187 substantial risk that he would suffer a stroke. Insofar as Rodriguez disagrees 1

with the Defendants’ medical judgment as to the proper course of treatment, that 2
does not support a constitutional claim for deliberate indifference. See Chance , 3

143 F.3d at 703 ; se e also Estelle v. Gamble , 429 U.S. 97, 107 (1976) (“[T]he 4
question whether an X

- ray or additional diagnostic techniques or forms of 5
treatment is indicated is a classic example of a matter for medical judgment.”). 6
Rodriguez , whose primary language is Spanish, also argues that he was 7

unable to communicate with the medical st aff because of a language barrier. 8
But while Rodriguez denies that he can adequately communicate with doctors in 9
English, he fails to identify record evidence suggesting that the Defendants 10

themselves were actually aware that Rodriguez’s language abilities p osed a 11

substantial risk of serious harm

. See Salahuddin , 467 F.3d at 280. 12

B. Retaliatory Transfer 13
We generally “approach prisoner retaliation claims with skepticism and 14
particular care, because virtually any adverse action taken against a prisoner by a 15
prison official

— even those otherwise not rising to the level of a constitutional 16

violation

— can be cha racterized as a constitutionally proscribed retaliatory act.” 17
Dolan v. Connolly , 794 F.3d 290, 295 (2d Cir. 2015) (quotation marks omitted). 188 To establish a First Amendment retaliation claim, a prisoner must show “ (1) that 1
the speech or conduct at issue w as protected, (2) that the defendant took adverse 2
action against the plaintiff, and (3) that there was a causal connection between 3
the protected speech and the adverse action

. ” Id. at 294 (quotation marks 4
omitted). The Defendants concede that Rodriguez satisfied prong s one and two 5
on summary judgment

. 6
As to the third requirement of a causal connection, however, Rodriguez 7

has not adduced evidence “sufficient to support the inference ” that his 8
grievances and lawsuit “ play ed a substantial part in ” his transfer from 9
Shawangunk Correctional Facility to Franklin Correctional Facility. Davis v. 10

Goord , 320 F.3d 346, 354 (2d Cir. 2003) (quotation marks omitted)

. Defendants 11

Amanda Demshick and Megan McGlynn, who processed Rodriguez’s transfer, 12
testified that they were unaware of his prior grievances or the existence of this 13

lawsuit at the time they processed the transfer. To contradict these sworn 14
statements, Rodriguez relies principally on the guard’s comment th at Rodriguez 15
is “the one who wants money from the state.” Joint App’x 315. But one 16
guard’s knowledge of Rodriguez’s lawsuit does not support the inference that 17
others, including the two Defendants, did as well, especially since the guard 189 played no part i n Rodriguez’s transfer. See Brandon v. Kinter , 938 F.3d 21, 36

– 1

37 , 40 (2d Cir. 2019)

. 2

C. Access to Courts 3
Finally, we turn to Rodriguez’s claim that d efendants David Jacobs, Jeffrey 4
McKoy, and Roger Traynor violated his First Amendment right to access the 5
courts by enforcing DOCCS Directive 4423. We assume, without deciding, that 6

r estrictions on an inmate ’ s telephone use may, in certain circumstances, violate 7

the inmate ’ s right to access the courts

. To establish such a violation , a plaintiff 8

would have to show “ that the defendant took or was responsible for actions that 9
hindered [a plaintiff’s] efforts to pursue a legal claim.” Davis , 320 F.3d at 351 10
(quotation marks omitted). 11

“ Qualified immunity shields government officials performing 12
discretionary functions from liability for civil damages insofar as their conduct 13
does not violate clearly established statutory or constitutional rights of which a 14
reasonable person would have known. ” Zell ner v. Summerlin , 494 F.3d 344, 367 15
(2d Cir. 2007) (quotation marks omitted). When government officials act 16
pursuant to an official prison policy, qualified immunity turn s in part on 17
“whether a reasonable officer might have believed that the challenged or der was 1810 lawful in light of legitimate penological interests supporting [the] Directive . . . as 1

it existed at the time.” Holland v. Goord , 758 F.3d 215, 223 (2d Cir. 2014)

. 2
Rodriguez does not dispute that D irective 4423 was intended to “ensure 3
that all inmates had equal access to their attorneys” during a time of increasing 4
prison populations. Special App’x 22. Rodriguez also “does not contend that 5

[ the D efendants] prevented him from filing his

. . . action, or from filing 6

whatever papers he wished.” Dixon v. von Blanckensee , 994 F.3d 95, 106 (2d 7
Cir. 2021) (quotation marks omitted). Indeed, while incarcerated at Franklin, 8
Rodriguez had eleven phone calls with his attorneys. Moreover, Directive 4423 9

allowed for inmates ’ attorneys to contact DOCCS Counsel ’ s Office or obtain a 10

court order to circumvent th is policy. See Joint App’x 198

– 99. Under these 11
undisputed circumstances, w e agree with the District Court that it was 12
reasonable for Jacobs, McKoy, and Traynor to believ e that enforcing Directive 13

4423 “ did not unconstitutionally restrict Plaintiff ’ s access to the courts. ” Special 14
App’x 22

. We therefore affirm the District Court’s grant of summary judgment 15

in favor of these three defendant s on the issue of qualified immunity with respect 16

to Rodriguez’s First Amendment access to courts claim

. 17

We have considered Rodriguez ’s remaining arguments and conclude that 1811 they are without merit. For the foregoing reasons, the judgment of the District 1

C ourt is AFFIRMED

. 2

FOR THE COURT: 3 Catherine O’ Hagan Wolfe, Clerk of Court 4