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- 681 Cunningham v. Agro 

## 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 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 City of 2 New York, on the 5 th day of June, two thousand twenty
- four
. 3 4 PRESENT: 5 RICHARD C. WESLEY , 6 MICHAEL H. PARK , 7 BETH ROBINSON , 8 Circuit Judges
. 9

__________________________________________ 10 11 Emir Cunningham , 12 13 Plaintiff -Appellant , 14 15 v. 23-681 16 17 Rose Agro , f ormer Warden of Anna M. Kross 18 Center, 19 20 Defendan t- Appellee
. * 21

___________________________________________ 22 23 FOR APPELL ANT : K YLA J ACKSON , Kirkland & Ellis LLP , New York , 24 NY. 25 26

* The Clerk’s office is directed to amend the caption as reflected above.2 FO R APPELL EE : C HLOÉ K. M OON ( Richard P. Dearing and 1 MacKenzie Fillow , on the brief ), for Sylvia O. 2 Hinds- Radix, Corporation Counsel of the City of 3 New York, New York, NY. 4 5 Appeal from a judgment of the United States District Court for the Southern District of 6 New York ( Carter , J

. ). 7
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 8
DECREED that the judgment of the district court i s AFFIRMED

. 9 Plaintiff -Appellant Emir Cunningham was held in custody at the Anna M. Kross Center 10 (“AMKC”), a Department of Corrections (“DOC”) facility , for approximately 12 days in October 11
2013. He sued Defendant

- Appellee Rose Agro, the former warden of AMKC, for deliberate 12 indifference, failure to protect, and civil conspiracy to violate civil rights, alleging that he was 13 deprived of medical care, food, showers, and housing , all of which posed an unreasonable risk to 14 his health and safety

. He also alleged that Agro was personally aware of and disregarded these 15 deprivations. 16 The district court granted Agro’s motion for summary judgment, concluding that 17 Cunningham ’s conclusory statements that he did not recall various medical appointments were 18 insufficient to create a material dispute as to the denial of medical care in the face of Agro’s 19 medical records show ing that Cunningham did in fact receive medical care ; even if his medical 20

care was delayed , the delay was insufficiently objectively serious to support an Eighth Amendment 21 deliberate indifference claim ; and Cunningham failed to identify evidence that Agro was 22 subjectively deliberately indifferent

. See Cunningham v. Agro , No. 15- CV

- 1266 (ALC), 2023 23 WL 2647105, at *3–4 (S.D.N.Y. Mar. 27, 2023). The district court also held that Cunningham’s 24 deliberate indifference claim regarding food, showers, and housing failed because he could not 253 show that the conditions were sufficiently serious or that Agro was aware of and disregarded an 1 excessive risk to inmate health or safety. 2 Id. at *4. Cunningham appeals. We assume the 2 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 3 appeal. 4 We review a grant of summary judgment de novo, “construing all evidence in the light 5 most favorable to the non

- moving party.” Willey v. Kirkpatrick , 801 F.3d 51, 62 (2d Cir. 2015). 6 “We affirm summary judgment only where there is no genuine dispute as to any material fact and 7 the movant is entitled to judgment as a matter of law.” Id . (internal quotation marks omitted). 8 “Deliberate indifference under the Eighth Amendment standard means the official must 9 know of and disregard an excessive risk to inmate health or safety; the official must both be aware 10 of facts from which the inference could be drawn that a substantial risk of serious harm exists, and 11 he must also draw the inference.” Vega v. Semple , 963 F.3d 259, 273 (2d Cir. 2020) ( cleaned up ). 12 This standard “embodies both an objective and a subjective prong. First, the alleged deprivation 13 must be, in objective terms, sufficiently serious.” Morgan v. Dzurenda , 956 F.3d 84, 89 (2d Cir. 14 2020) ( cleaned up ) . Second, “ the charged official must act with a sufficiently culpable state of 15 mind.” Id . (quotation marks omitted). 16
H ere, the district court correctly granted Ag r o’s motion for summary judgment because 17 Cunningham fails to show that Agro “ had subjective knowledge of a substantial risk of serious 18

2 The district court declined to reach the parties’ civil conspiracy and qualified immunity arguments, and either resolved in Cunningham’s favor or declined to reach Agro’s argument that Cunningham failed to exhaust administrative remedies

. See Cunningham v. Agro , No. 15

- CV -1266 (ALC), 2023 WL 2647105, at *4 (S.D.N.Y. Mar. 27, 2023)

. We also decline to reach the question whether Cunningham failed to exhaust his administrative remedies because we affirm the district court’s judgment that, in any event, Agro was entitled to summary judgment on Cunningham’s claims

.4 harm to an inmate and disregarded it.” Tangreti v. Bachmann , 983 F.3d 609, 616 (2d Cir. 2020). 1 Upon receiving a 311 complaint regarding Cunningham’s circumstances, Agro forwarded the 2 complaint to a captain for further investigation, indicating that she did not simply disregard the 3 complaint. Her reliance on the captain’s resulting report

— which stated that Cunningham wanted 4 to move cells because he had asthma, did not fe ar for his safety , and wanted to be moved to a 5 dormitory— does not reflect a subjective state of deliberate indifference. Likewise, 6 Cunningham’s vague testimony that he spoke to someone he believed to be Agro and told her he 7 hadn’t received his medication is insufficient to show that Agro was deliberately indifferent to his 8 medical needs . A gro’s advice that Cunningham should tell his correctional officer about his 9 problem does not evince a subjective indifference

. Because Cunningham cannot establish Agro’s 10 subjective culpability, his deliberate indifference claims fail. 11 We have considered the parties’ remaining arguments and find them to be without merit. 12 For the foregoing reasons, the judgment of the district court granting Agro’s motion for summary 13 judgment is AFFIRMED

. 14

15 FOR THE COURT: 16 Catherine O ’ Hagan Wolfe, Clerk of Court 17