1 16-3444 Barrow v. Farago



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 22 nd day of December, two thousand seventeen.

PRESENT: DENNIS JACOBS, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges.

_____________________________________

VINCENT BARROW,

Plaintiff-Appellant
,

v. 16-3444

DR. LAWRENCE FARAGO, PSYCHIATRIST, BRYAN HILTON, SUPERINTENDENT OF PROGRAMS, MICHAEL HOAGAN, DEPUTY COMMISSIONER, OFFICE OF MENTAL HEALTH, DEPARTMENT OF CORRECTIONS, ANTHONY DEVITTO,
EXECUTIVE DIRECTOR OF SPECIAL PROGRAMING, DIANE VANBUREN, DEPUTY COMMISSIONER, BOB LEWIS, OMH THERAPIST, LISA KALIES, UNIT CHIEF, OMH, RESIDENTIAL MENTAL HEALTH UNIT, JOSEPH BELLNIER,2 DEPUTY COMMISSIONER OF PROGRAM SERVICE, KENNETH S. PERLMAN, DEPUTY COMMISSIONER OF PROGRAM SERVICE, LUCIEN LECLAIRE, ASSISTANT COMMISSIONER, MAUREEN E. BOLL, DEPUTY COMMISSIONER AND COUNSEL, E. LINDQUIST, ASSISTANT COMMISSIONER, KAREN BELLAMY, DIRECTOR, INMATE GRIEVANCE PROGRAM, JEFF MCKOY, DEPUTY COMMISSIONER, MAUREEN BOSCO, EXECUTIVE DIRECTOR, CENTRAL NEW YORK PSYCHIATRIC CENTER, OFFICE OF MENTAL HEALTH, B. MCARDLE, DEPUTY
SUPERINTENDENT OF MARCY CORRECTIONAL FACILITY, DONALD SELSKEY, DEPUTY COMMISSIONER, LIEUTENANT CORY, HOLANCHUCK, BRIAN FISCHER, COMMISSIONER, CAPTAIN HARPER, CHARLES KELLY, JR., SUPERINTENDENT, MARCY CORRECTIONAL FACILITY,

Defendants-Appellees
,

ADOLF, CORRECTIONS COUNSELOR, NEW
YORK STATE OFFICE OF MENTAL HEALTH, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, MARCY, NEW YORK, ONEIDA COUNT Y, NEW YORK STATE, KINDERMAN, DEPUTY SUPT. OF PROGRAMS,

Defendants

.

_____________________________________

FOR PLAINTIFF-APPELLANT: Vincent Barrow, pro se, Comstock, NY.

FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor General, Victor Paladino and Patrick Woods, Assistant Solicitors General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY.3 Appeal from a judgment of the United States Di strict Court for the Northern District of New York (D’Agostino, J .; Hummel, M.J. ).

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

.

Appellant Vincent Barrow, a prison inmate appe aring pro se, brought th e instant suit under 42 U.S.C. § 1983 against prison offici als, claiming violations of the First, Eighth, and Fourteenth Amendments, the Americans with Disabilities Act, and the Rehabilitation Act. Barrow’s claims are based primarily on allegations that the defend ants required him to wear an exposure jumpsuit (a jumpsuit designed to prevent the wearer from removing it) when he left his cell; placed a sign reading “exposer” outside his cel l; afforded him inadequate pro cess before taking the foregoing measures; disproportionately required minority inmates to wear exposure jumpsuits; provided inadequate medical care for his foot pain, exhib itionism, and depression; a nd denied him access to certain programming. The district court dismi ssed on motion all of Barrow’s claims, except for an Eighth Amendment claim that his psychiatrist denied treatment for his depression. The court later resolved that claim adversely to Barrow on summary judgment. Barrow appeals both the dismissal and the grant of summary judgment. We assume the parties’ familiarity with the underlying facts, the proce dural history, and the issu es presented for review.

1. We review the district cour t’s decision to dismiss virtually all of Barrow’s claims de

novo. Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002). An independent

review of the record and releva nt case law reveals that the di strict court properly dismissed Barrow’s claims for substantially the reasons stat ed in the magistrate judge’s thorough September 25, 2014 report and recommendation, which the dist rict court adopted in its entirety. See Barrow

v. Buren , No. 9:12-CV-01268, 2015 WL 417084, at *4 (N.D.N.Y. Jan. 30, 2015).

2. We review the district court’s grant of summary judgment on Barrow’s claim of inadequate medical care de novo. Sousa v. Marquez , 702 F.3d 124, 127 (2d Cir. 2012). To establish an Eighth Amendment violation based on inadequate medical care, Barrow would need to prove that “the alleged depriv ation of adequate medical care [was ] sufficiently serious,” and that the defendant--Barrow's psychiatrist--acted with deliberate indifference to Barrow’s health.
Salahuddin v. Goord , 467 F.3d 263, 279-80 (2d Cir. 2006) (int ernal quotation marks and citation omitted).

As the district court conclude d, Barrow failed to demonstrate a genuine issue of material fact as to whether his psychiatrist acted wi th deliberate indifferenc e in discontinuing his prescription for a particular de pression medication. The record on summary judgment showed that the psychiatrist offered Barrow other treatment for his depression, including cognitive behavioral therapy. 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 treatment does not give rise to an Eighth Amendment violation.”). Furt hermore, the evidence demonstrated that Barrow refused visits with his psychiatrist and only partially complied with his treatment.4 We have considered Barrow’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