13‐4604‐pr

Davis v. Florence

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 TO A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.   

1 At a stated term of the United States Court of Appeals for the Second

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 9 3 th day of April, two thousand fifteen.

4 

5 PRESENT: DENNIS JACOBS,

6 RAYMOND J. LOHIER, JR.,

7      Circuit Judges,

8     GARY L. SHARPE,

     Chief District Judge.

* 9 

10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

11 

12 SAMUEL DAVIS,

13 

14 Plaintiff‐Appellant,

15 

16 v. No. 13‐4604‐pr

17 

18 FLORENCE, SERGEANT (NURSE), GENEVIENE

19 SWITZ, (P.A), WLADYSLAW SIDOROWICZ,

20 (DOCTOR), JAMES WALSR,

21 (SUPERINTENDENT), PATRICK GRIPPIN,

22 (DEPT OF SECURITY), NORMAN BEZIO,

 

* The Honorable Gary L. Sharpe, Chief Judge of the United States District Court

for the Northern District of New York, sitting by designation.
2 

1 (DIRECTOR OF SPECIAL HOUSING), BRIAN

2 FISCHER, (COMMISIONER), BELINDA

3 MCKENNY, (I.R.C.), KAREN BELLAMY,

4 (DIRECTOR OF GRIEVANCE), M. LAKE,

5 (COUNSELOR), PAUL MACE, (SERGEANT), D.

6 LONG, JOSEPH MAXWELL, (LIEUTENANT),

7 OFFICER ARMSTRONG, MICHAEL

8 MAKOWSKI, (OFFICER), E. PUERSCHNER,

9 (OFFICER),

10 

11     Defendants‐Appellees.

12 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

13 

14 FOR APPELLANT: SAMANTHA FASANELLO, ROBERT WARD (Jonathan

15 Romberg, on the brief), Seton Hall University

16 School of Law Center for Social Justice, Newark,

17 NJ.   

18 

19 MILTON ZELERMYER (Seymour W. James, Jr., John

20 Boston, on the brief), The Legal Aid Society, New

21 York, NY.  

22     

23 FOR APPELLEES: DAVID LAWRENCE III (Barbara D. Underwood,

24 Michael S. Belohlavek, on the brief), for Eric T.

25 Schneiderman, Attorney General of the State of

26 New York, New York, NY.

27 

28 Appeal from a judgment of the United States District Court for the

29 Southern District of New York (Alvin K. Hellerstein, Judge).

30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

31 AND DECREED that the judgment of the District Court is AFFIRMED IN PART

32 and VACATED IN PART and the case is REMANDED for further proceedings

33 consistent with this order.

34 Samuel Davis appeals from the District Court’s grant of summary

35 judgment dismissing his claims under 42 U.S.C. § 1983, as well as pendent state
3 

1 law claims, against various employees and officials at Sullivan Correctional

2 Facility (“Sullivan”).  We assume the parties’ familiarity with the facts and record

3 of the prior proceedings, to which we refer only as necessary to explain our

4 decision to affirm in part, vacate in part, and remand.

5 To make out a claim of retaliation under the First Amendment, an inmate

6 must establish “(1) that the speech or conduct at issue was protected, (2) that the

7 defendant took adverse action against the [inmate], and (3) that there was a

8 causal connection between the protected [conduct] and the adverse action.”  

9 Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (second alteration in original)

10 (quotation marks omitted).   

11 Davis’s first retaliation claim is that the defendants placed him in

12 Sullivan’s Special Housing Unit (“SHU”) and subjected him to strip frisks for

13 filing numerous grievances against them.  A motions panel of this Court

14 previously dismissed the appeal of this claim as lacking any arguable basis in

15 law or fact.  There is no compelling reason to revisit that prior ruling.  See Shomo

16 v. City of New York, 579 F.3d 176, 186 (2d Cir. 2009) (declining to revisit a prior

17 ruling by a motions panel affirming a grant of summary judgment “absent

18 cogent or compelling reasons” (quotation marks omitted)).   

19 Second, Davis claims that a physician’s assistant at Sullivan retaliated

20 against him for filing a grievance against her by refusing to provide Davis more

21 aspirin and instructing Davis’s nurse to do the same.  Even if the temporary

22 discontinuation of aspirin were deemed an “adverse action,” there is no evidence

23 from which a factfinder could reasonably draw a “causal connection between the

24 protected [conduct] and the adverse action.”  Holland, 758 F.3d at 225 (alteration

25 in original) (quotation marks omitted).  In the context of prisoner retaliation

26 claims, we have required evidence beyond temporal proximity between the
4 

1 protected activity and the adverse action before allowing a prisoner to proceed to

2 trial on such a claim.  See Colon v. Coughlin, 58 F.3d 865, 872‐73 (2d Cir. 1995).  

3 Here temporal proximity “represented the sum total” of Davis’s proof, id. at 873

4 – he has produced no other evidence establishing a causal connection.  We

5 therefore affirm the dismissal of the second retaliation claim.

6 Davis’s claim of deliberate indifference in violation of the Eighth

7 Amendment was also properly dismissed.  To prevail on such a claim based on

8 prison medical care, an inmate must demonstrate that prison officials “acted

9 with deliberate indifference to [his] serious medical needs.”  Hernandez v.

10 Keane, 341 F.3d 137, 144 (2d Cir. 2003) (quotation marks omitted).  Assuming

11 without deciding that Davis demonstrated a “serious medical need,” we agree

12 that he failed to show deliberate indifference to those needs.  To the contrary, the

13 evidence shows that prison staff were attentive to Davis’s health issues and that

14 Davis often rejected medical treatment and failed to follow the physical therapy

15 regimen prescribed for him.   

16 We also affirm the dismissal of Davis’s Fourth Amendment claim.  “[A]

17 regulation impinging on an inmate’s constitutional rights must be upheld if it is

18 reasonably related to legitimate penological interests.”  Florence v. Bd. of Chosen

19 Freeholders, 132 S. Ct. 1510, 1515 (2012) (quotation marks omitted).  On this

20 record, the defendants showed that their practice of having a supervisory officer

21 present during strip frisks and recording strip frisks via wall‐mounted video

22 camera is reasonably related to the legitimate interests in both inmate and staff

23 security at Sullivan.  On appeal, Davis mounts a facial challenge and argues that

24 the performance of strip frisks upon admission to the SHU and absent

25 individualized reasonable suspicion that an inmate is concealing contraband

26 violates the Fourth Amendment.  Because this argument presents constitutional
5 

1 issues, we have searched the record to assure that it was properly preserved

2 below.  We conclude that Davis forfeited this argument because his complaint

3 and his arguments at the summary judgment stage (even when construed

4 liberally) challenged only the presence of supervisory officers and the video

5 recording of strip frisks, not the strip frisks themselves.  

6 In granting summary judgment, the District Court neglected to address

7 Davis’s pendent state law claims and due process claim relating to his

8 administrative segregation reviews.  Accordingly, we vacate the judgment of the

9 District Court with respect to those claims for the District Court on remand to

10 consider them in the first instance.  See Bano v. Union Carbide Corp., 273 F.3d

11 120, 132‐33 (2d Cir. 2001).

12 We have considered Davis’s remaining arguments and conclude that they

13 are without merit.  For the foregoing reasons, the judgment of the District Court

14 is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED

15 for further proceedings consistent with this order.   

16       FOR THE COURT:

17       Catherine O’Hagan Wolfe, Clerk of Court