The Clerk of the Court is directed to amend the official caption in * this matter to conform with that of this order. 10-491 Goris v. Breslin UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULI NGS BY SUMMARY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASUMMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GOVERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L RULE 32.1.1. W HEN CIT ING A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H THI S C OUR T , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APARTY CI TIN G ASUMMARY ORD ER MUS T S ERVE ACO PY OF IT ON ANY PARTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 1 At a stated term of the United States Court of Appeals 

### 2 for the Second Circuit, held at the Daniel Patrick Moynihan 

### 3 United States Courthouse, 500 Pearl Street, in the City of 

### 4 New York, on the 30 day of November, two thousand and ten. th 

### 5 6 PRESENT: WILFRED FEINBERG, 

### 7 BARRINGTON D. PARKER, 

### 8 RICHARD C. WESLEY, 

### 9 Circuit Judges . 

### 10 11 12 13 SIMON GORIS, 

### 14 15 Plaintiff-Appellant , 

### 16 17 -v.- 10-0491-pr 

### 18 19 D. BRESLIN, DR. THEBAUD, DR. HAIDER-SHAH, 

### 20 GAIL BUSWELL, DR. LESTER WRIGHT, PUBLIC 

### 21 ADMINISTRATOR OF SUFFOLK COUNTY, 

### 22 23 Defendants-Appellees. * 

### 24 25 26Dr. Thebaud passed away in August of 2008, and in 1 March of 2009 the Public Administrator of Suffolk County was added as a defendant in his stead. For convenience in this order, we simply use “Dr. Thebaud” to refer to those claims that now lie against his estate. 2 

### 1 FOR APPELLANT: RICHARD D. OWENS, (John D. Castiglione, 

### 2 Aaron M. Singer, on the brief ), Latham & 

### 3 Watkins LLP, New York, NY. 

### 4 5 FOR APPELLEE: DAVID LAWRENCE III, Assistant Solicitor 

### 6 General, of counsel , (Barbara D. 

### 7 Underwood, Solicitor General, Richard 

### 8 Dearing, Deputy Solicitor General, on the 

### 9 brief ), for Andrew M. Cuomo, Attorney 

### 10 General of the State of New York, New 

### 11 York, NY. 

### 12 13 Appeal from the United States District Court for the 

### 14 Eastern District of New York (Matsumoto, J. ). 

### 15 16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 

### 17 AND DECREED that the judgment of the district court be 

### 18 AFFIRMED . 

### 19 Plaintiff-appellant Simon Goris commenced this civil 

### 20 rights action pursuant to 42 U.S.C. § 1983 against a number 

### 21 of individuals, including Dr. Francois Thebaud, a physician 1 

### 22 at Arthur Kill Correctional Facility, Dr. Syed Haider-Shah, 

### 23 a physician at Marcy Correctional Facility, and Dr. Lester 

### 24 Wright, Deputy Commissioner and Chief Medical Officer of the 

### 25 New York State Department of Correctional Services. Goris 

### 26 contends that the defendants were deliberately indifferent3 

### 1 to his medical needs, in violation of the Eighth Amendment 

### 2 to the United States Constitution, following a knee injury 

### 3 that he suffered while incarcerated at the Arthur Kill 

### 4 facility in February of 2003. 

### 5 By memoranda and orders dated July 6, 2009 and January 

### 6 26, 2010, the United States District Court for the Eastern 

### 7 District of New York granted summary judgment to the 

### 8 defendants and dismissed Goris’s complaint. Goris v. 

### 9 Breslin (“ Goris I ”), No. 04-5666, 2009 WL 1955607 (E.D.N.Y. 

### 10 July 6, 2009); Goris v. Breslin (“ Goris II ”), No. 04-5666, 

### 11 2010 WL 376626 (E.D.N.Y. Jan. 26, 2010). We assume the 

### 12 parties’ familiarity with the underlying facts, the 

### 13 procedural history, and the issues presented for review. 

### 14 Following a de novo review, “[e]xamining the facts in 

### 15 the light most favorable to [Goris] and resolving all 

### 16 factual ambiguities in [his] favor,” Pyke v. Cuomo , 567 F.3d 

### 17 74, 76 (2d Cir. 2009) (per curiam), we conclude that the 

### 18 district court properly granted the defendants’ motions for 

### 19 summary judgment. 

### 20 At the outset, we affirm the district court’s 

### 21 determination that Dr. Wright is entitled to summary 

### 22 judgment, because Goris failed to demonstrate that Dr.Goris does not challenge the district court’s grant 2 of summary judgment to defendants Breslin and Buswell, and we therefore do not reach the merits of those claims. See, e.g., In re Wireless Data, Inc. , 547 F.3d 484, 492 (2d Cir. 2008) (argument not raised on appeal waived). 4 

### 1 Wright was sufficiently involved in the alleged 

### 2 constitutional violation to establish liability pursuant to 

### 3 § 1983. Goris I , 2009 WL 1955607, at *7. The record shows 

### 4 that Dr. Wright’s personal involvement was limited to the 

### 5 receipt of two letters from Goris, which he promptly 

### 6 referred to other individuals for investigation and 

### 7 response. Accordingly, Goris has failed to establish the 

### 8 requisite personal involvement on Dr. Wright’s part, and the 

### 9 district court properly granted summary judgment in Dr. 

### 10 Wright’s favor. See Sealey v. Giltner , 116 F.3d 47, 51 (2d 

### 11 Cir. 1997). 

### 12 We also affirm the district court’s grant of summary 

### 13 judgment to Dr. Thebaud and Dr. Haider-Shah, albeit for 

### 14 different reasons than relied upon by that court. See 2 

### 15 Ferran v. Town of Nassau , 471 F.3d 363, 365 (2d Cir. 2006) 

### 16 (per curiam) (“[W]e may affirm on any basis for which there 

### 17 is sufficient support in the record, including grounds not 

### 18 relied upon by the District Court.”). The district court 

### 19 concluded that both Dr. Thebaud and Dr. Haider-Shah were5 

### 1 entitled to summary judgment because Goris failed to satisfy 

### 2 the “subjective prong” of the deliberate indifference 

### 3 standard, under which a plaintiff must establish that the 

### 4 defendant denied treatment with a “sufficiently culpable 

### 5 state of mind.” Hathaway v. Coughlin , 37 F.3d 63, 66 (2d 

### 6 Cir. 1994). But we need not reach the subjective prong, 

### 7 because Goris has failed to demonstrate that the alleged 

### 8 deprivation was “sufficiently serious,” as an objective 

### 9 matter, to be actionable under the Eighth Amendment. 

### 10 To prevail on a deliberate indifference claim, a 

### 11 prisoner must first demonstrate “that the alleged 

### 12 deprivation of medical treatment is, in objective terms, 

### 13 ‘sufficiently serious’ — that is, the prisoner must prove 

### 14 that his medical need was ‘a condition of urgency, one that 

### 15 may produce death, degeneration, or extreme pain.’” Johnson 

### 16 v. Wright , 412 F.3d 398, 403 (2d Cir. 2005) (quoting 

### 17 Hemmings v. Gorczyk , 134 F.3d 104, 108 (2d Cir. 1998)). 

### 18 Moreover, “[i]n cases where the inadequacy is in the medical 

### 19 treatment given, the seriousness inquiry is narrower.” 

### 20 Salahuddin v. Goord , 467 F.3d 263, 280 (2d Cir. 2006). 

### 21 Where, as here, “the prisoner is receiving on-going 

### 22 treatment and the offending conduct is an unreasonable delay6 

### 1 or interruption in that treatment, the seriousness inquiry 

### 2 focuses on the challenged delay or interruption in treatment 

### 3 rather than the prisoner’s underlying medical condition 

### 4 alone.” Id . (internal quotation marks and alterations 

### 5 omitted). Stated differently, “it’s the particular risk of 

### 6 harm faced by the prisoner due to the challenged deprivation 

### 7 of care, rather than the severity of the prisoner’s 

### 8 underlying medical condition, considered in the abstract, 

### 9 that is relevant for Eighth Amendment purposes.” Smith v. 

### 10 Carpenter , 316 F.3d 178, 186 (2d Cir. 2003). 

### 11 With those principles in mind, we conclude that the 

### 12 deficiencies alleged by Goris are insufficient to establish 

### 13 a constitutional violation premised upon deliberate 

### 14 indifference. The factual record, taken in the light most 

### 15 favorable to Goris, supports his allegations of deliberate 

### 16 indifference premised upon the following acts and omissions: 

### 17 (1) Dr. Thebaud’s refusal to prescribe surgery instead of 

### 18 physical therapy; (2) Dr. Thebaud’s failure to more 

### 19 expeditiously arrange a follow-up with an orthopedist 

### 20 between February and July of 2004; and (3) Dr. Haider-Shah’s 

### 21 refusal to prescribe surgery, or refer Goris to a physical 

### 22 therapist or orthopedist, between August and December of7 

### 1 2004. 

### 2 Yet those alleged deficiencies, even if proven, do not 

### 3 establish a violation of the Eighth Amendment. “Because 

### 4 society does not expect that prisoners will have unqualified 

### 5 access to health care, deliberate indifference to medical 

### 6 needs amounts to an Eighth Amendment violation only if those 

### 7 needs are serious.” Hudson v. McMillian , 503 U.S. 1, 9 

### 8 (1992) (internal quotation marks omitted). And, “in most 

### 9 cases, the actual medical consequences that flow from the 

### 10 alleged denial of care will be highly relevant to the 

### 11 question of whether the denial of treatment subjected the 

### 12 prisoner to a significant risk of serious harm.” Smith , 316 

### 13 F.3d at 187. 

### 14 Although Goris has alleged that an unspecified 

### 15 orthopedist “indicated that [he] needed surgery for [his] 

### 16 knee,” J.A. 280, there is no record evidence to support that 

### 17 assertion — to be sure, the record is devoid of any 

### 18 documentary evidence that surgery was ever recommended for 

### 19 Goris during the relevant time frame. And, when surgery was 

### 20 ultimately conducted in September of 2005, the surgeon found 

### 21 no ACL tear or meniscal pathology. The record further shows 

### 22 that Goris responded well to physical therapy; in January of8 

### 1 2004, Goris reported that his knee felt better and was no 

### 2 longer buckling, and in March of 2004, Goris’s medical 

### 3 records reflect that he had “good improvement,” an increase 

### 4 in strength and a decrease in pain. In August of 2004, Dr. 

### 5 Haider-Shah’s examination of Goris’s knee revealed no 

### 6 physical findings warranting an orthopedic referral. 

### 7 Finally, Dr. Haider-Shah’s failure to refer Goris to a 

### 8 physical therapist between August and December of 2004, even 

### 9 if arguably amounting to malpractice, is hardly a 

### 10 deprivation “sufficiently grave” to constitute an Eighth 

### 11 Amendment violation, see Salahuddin , 467 F.3d at 279-80, 

### 12 especially considering that many, if not all, of the 

### 13 exercises that Goris would have conducted at physical 

### 14 therapy he was capable of doing on his own, see, e.g., 

### 15 Hernandez v. Keane , 341 F.3d 137, 147 (2d Cir. 2003) 

### 16 (finding relevant that “plaintiff was given instructions by 

### 17 several doctors on how to perform the necessary therapy” on 

### 18 his own). 

### 19 We have considered Goris’s remaining arguments on 

### 20 appeal and find them to be without merit. For the foregoing 

### 21 reasons, the judgment of the district court is hereby 

### 22 AFFIRMED .9 

### 1 2 FOR THE COURT: 

### 3 Catherine O’Hagan Wolfe, Clerk 

### 4 5