16-3368 Jones v. Tompkins



## 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 23 rd day of March, two thousand eighteen.

PRESENT: DENNIS JACOBS, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges.

_____________________________________

WILLIAM EDWARD JONES,

Plaintiff-Appellant
,

v. 16-3368

TOMPKINS, C.O.M., D. UHLER, Deputy Supt. for Security, ANGELA GORG, MORROW, C.O.C., JEREMY CLEMENT, MARK DELAURO, WELSEY CANFIELD, Doctor,

Defendants-Appellees
,

ALBERT PRACK, WILLIAM J. HOPKINS, Deputy Superintendent, PATRICK GRIFFIN, Superintendent, JOHN VONHAGN,

Defendants

.

_____________________________________

FOR PLAINTIFF-APPELLANT: William Edward Jones, pro se, New York, NY.2 FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor General, Victor

Paladino and Fredrick Brodi e, Assistant Solicitors General, for Eric T. Schneiderman, Attorney

General of the State of New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Western District of New York (Telesca, J .; Scott, M.J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED

.

Appellant William Edward Jones, a prison inma te appearing pro se, brought suit under 42 U.S.C. § 1983 against prison officials at Clin ton Correctional Facility (“Clinton” and “the Clinton defendants”) as well as medical staff at Southport Correc tional Facility (“Southport” and “the Southport defendants”). J ones alleged that the Clinton de fendants denied him due process during a disciplinary proceeding at Clinton that led to him being sentenced to 90 days in a Special Housing Unit (“SHU”) at S outhport, and that, while at Sout hport, he received inadequate

medical care for various conditions . The district court dismisse d Jones’s due process claim for failure to state a claim and granted summary j udgment against him on his claim of inadequate medical care. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues presented for review.

1. We review de novo the dismissal of Jones’s due process claim. Biro v. Condé Nast

, 807 F.3d 541, 544 (2d Cir. 2015). Jones alleged th at the Clinton defendants filed a false misbehavior report against him, denied him records and assistance in preparing for his disciplinary hearing, and refused to call two witnesses he had reque sted. However, a “prisoner’s liberty interest is implicated by prison discipline . . . only if the discipline imposes an atypical and significant hardship on the in mate in relation to the ordinary incidents of prison life.” Davis

v. Barrett , 576 F.3d 129, 133 (2d Cir. 2009) (per curiam ) (internal quotation marks and brackets omitted). Under that standard, “restrictive confinements of less than 101 days do not generally raise a liberty interest warrant ing due process protection, and t hus require proof of conditions

more onerous than usual.” Id. Jones failed to allege that the conditions of the 90-day SHU

sentence were “more onerous than usual.” Id. He therefore failed to allege the existence of a liberty interest warranting due process protect ion. Accordingly, the district court properly dismissed his due process claim.

Jones first argues that the deprivations of me dical care that he alle gedly suffered while at Southport should have been considered in anal yzing whether the hardship was atypical and significant. However, as discussed further below, Jones was not deprived of constitutionally adequate medical care. Jones next argues th at the additional one-y ear SHU sentence he subsequently received for an unrelated infraction should have been aggregated with his original 90-day SHU sentence. However, although Jones’ s 90-day SHU sentence would be considered together with any previously imposed confinem ent if “confinement for [the combined number of] days constituted atypicality,” Jones’s 90-day sentence was imposed prior to his other SHU

sentence. Sealey v. Giltner , 197 F.3d 578, 587 n.7 (2d Cir. 1999).3 2. We review de novo the district c ourt’s grant of summary judgment. Garcia v. Hartford Police Dep’t , 706 F.3d 120, 126 (2d Cir. 2013) (per cu riam). To prevail, Jones would

need to show that the defendants were deliberat ely indifferent to his serious medical needs. Smith v. Carpenter , 316 F.3d 178, 183 (2d Cir. 2003). This deliberate indifference standard has both an objective and a subjective prong. To sa tisfy the objective prong, Jones would need to show that (1) he was “actually deprived of adequate medi cal care” and (2) the alleged deprivation was “sufficiently serious.” Salahuddin v. Goord , 467 F.3d 263, 279

– 80 (2d Cir. 2006). To satisfy the subjective prong, Jones would need to show that “the charged official act[ed] or fail[ed] to act while ac tually aware of a substantial ri sk that serious [] harm w[ould]

result.” Id. at 280. Jones cannot satisfy the objective prong.

Jones alleged that Nurse Jeremy Clement fals ely claimed that Jones attempted to hoard Ultram, a narcotic then-prescribe d to Jones for back pain, and th at he did so as a pretext for discontinuing Jones’s prescription. Accord ing to Clement, Jones’s prescription was discontinued after he was caught pretending to dr op the medication on the floor so that he could surreptitiously pour it into a napkin and hoard it. In any event, it is clear from the record that Jones was not “actually deprived of adequate medical care.” Id. at 279. Jones was offered other treatment for his back pa in, including over-the-counter medi cation; his stated preference for a prescription narcotic is not evidence of Cl ement’s deliberate indifference to his condition. See Chance v. Armstrong , 143 F.3d 698, 703 (2d Cir. 1998) (“So long as the treatment given is adequate, the fact that a prisone r might prefer a different treatme nt does not give rise to an Eighth Amendment violation.”). We therefore a ffirm the district court’s grant of summary judgment in favor of Clement.

We likewise affirm the grant of summary judg ment in favor of the remaining Southport defendants for substantially the reasons stated by the district court in its thorough August 10,

2016 decision. See Jones v. Tompkins , No. 12-CV-57, 2016 WL 4211610, at *6–9 (W.D.N.Y. Aug. 10, 2016).

Finally, we conclude that the district court acted within its discretion when it denied Jones’s motions to compel discovery, see Wills v. Amerada Hess Corp. , 379 F.3d 32, 41 (2d Cir. 2004), and for appointment of counsel, see Hodge v. Police Officers , 802 F.2d 58, 60 (2d Cir. 1986).

We have considered all of Jones’s remain ing 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