11-5451-pr Green v. McLaughlin 

## 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. At a stated term of the United States Court of Appeals for the Second Circuit, held 1 at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of 2 New York, on the 8 thday of May, two thousand twelve. 3 4 PRESENT: 5 PIERRE N. LEVAL, 6 PETER W. HALL, 7 DEBRA ANN LIVINGSTON , 8 Circuit Judges. 9

_____________________________________ 10 11 Shawn Green, 12 13 Plaintiff-Appellant, 14 15 v. 11-5451-pr 16 17 Kenneth McLaughlin, Inspector General, 18 Donald Selsky, Director Inmate Disciplinary 19 Program, Thomas G. Eagen, Director Inmate 20 Grievance Program, Affirmation Action 21 Administrator, W. E. Phillips, Superintendent, 22 C.J. Koeignsmann, GHCF Senior Counselor, 23 James Temple, GHCF Senior Counselor, Delores 24 Thronton, Program Deputy, L. Goidel, of IGP, 25 Unidentified Personnel, J. Rosario, Records 26 Access Officer, T. Gotsch, Lieutenant, Sergeant 27 Markham, F. Sarles, Officer, D. Huttell, Officer, 28 G. Tilltoson, Officer, 29 30 Defendants-Appellees . 31

_____________________________________ 322 1 FOR PLAINTIFF-APPELLANT: Shawn Green, pro se , Elmira, NY. 2 3 FOR PETITIONER-APPELLEE: Patrick J. Walsh, Assistant Solicitor General for 4 Eric T. Schneiderman, Attorney General of the 5 State of New York, New York, NY. 6 7 Appeal from a judgment of the United States District Court for the Southern District of 8 New York (Griesa, J.). 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 10 DECREEDthat the judgment of the district court is AFFIRMED

. 11 Appellant Shawn Green, pro se , a prisoner serving a New York State sentence, appeals 12 from the May 21, 2010 order of the district court adhering to its March 31, 2008 judgment and 13 order dismissing Green’s 42 U.S.C. § 1983 claims on the Appellees’ motion to dismiss. We 14 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and 15 the issues raised on appeal. 16 By summary order of April 22, 2010, after determining that the district court’s March 31, 17 2008 order did not explain the basis for the dismissal of Green’s complaint, we remanded 18 pursuant to the procedure outlined in United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994), 19 for the district court to clarify the basis for its decision. Green v. McLaughlin , 374 Fed. App’x 20 173 (2010). In its May 21, 2010 order, the districtcourt provided an expanded explanation for 21 its dismissal and we now turn to the merits of Green’s arguments on appeal. 22 We review de novoa district court decision dismissing a complaint pursuant to Rule 23 12(b)(6). See Jaghory v. N.Y. State Dep’t of Educ. , 131 F.3d 326, 329 (2d Cir. 1997). Under 24 Rule 12(b)(6), pro se complaints are to be construed liberally, accepting as true all factual 25 allegations in the complaint, and drawing all reasonable inferences in the plaintiff’s favor. See 26 Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006). To survive a Rule 273 12(b)(6) motion to dismiss, the complaint must plead “enough facts to state a claim to relief that 1 is plausible on its face.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim will have “facial plausibility when the 3 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. Determining whether a 5 complaint states a plausible claim is a “context-specific task that requires the reviewing court to 6 draw on its judicial experience and common sense.” Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 7 2009) (quoting Iqbal , 556 U.S. at 679). Thus, plausibility “depends on a host of considerations: 8 the full factual picture presented by the complaint, the particular cause of action and its elements, 9 and the existence of alternative explanations so obvious that they render [the] plaintiff’s 10 inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 11 2011). While pro secomplaints must contain sufficient factual allegations to meet the 12 plausibility standard, see Harris , 572 F.3d at 72, we look for such allegations by reading the 13 complaint with “special solicitude” and interpreting it to raise the strongest claims it suggests. 14
Triestman , 470 F.3d at 474-75 (quoting Routolo v. I.R.S. , 28 F.3d 6, 8 (2d Cir. 1994)). 15 We have conducted a de novoreview of the record in light of these principles and now 16 affirm the district court’s dismissal of Green’s complaint. First, the district court correctly 17 concluded that Green’s allegations of a conspiracy were conclusory and insufficient to state a 18 claim. See Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003) (to maintain a conspiracy 19 action, the plaintiff “must provide some factual basis supporting a meeting of the minds”). Aside 20 from his conclusory statement that there was a “meeting of the minds” between the defendants, 21 Green’s complaint alleged no facts upon which it may be plausibly inferred that the defendants 22 came to an agreement to violate his constitutional rights. See Iqbal , 556 U.S. at 680-81 234 (allegations that the defendants “willfully and maliciously agreed to subject” the plaintiff to 1 harsh conditions of confinement “solely on account of his religion, race, and/or national origin” 2 found conclusory); Gallop v. Cheney , 642 F.3d 364, 369 (2d Cir. 2011) (finding allegations of 3 conspiracy “baseless” where the plaintiff “offer[ed] not a single fact to corroborate her allegation 4 of a ‘meeting of the minds’ among the conspirators”). 5 Green’s claim that, in retaliation for his various grievances and complaints against prison 6 officials, those officials filed false misbehavior reports against him, was also properly dismissed 7 because the claim is precluded. The doctrine of issue preclusion, or collateral estoppel, provides 8 that “an issue of law or fact actually litigated and decided by a court of competent jurisdiction in 9 a prior action may not be relitigated in a subsequent suit between the parties or their privies.” Ali 10 v. Mukasey , 529 F.3d 478, 489 (2d Cir. 2008) (internal quotation marks and emphasis omitted). 11 Under New York law, issue preclusion occurs where “(1) the issue in question was actually and 12 necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted 13 had a full and fair opportunity to litigate the issue in the first proceeding.” Vargas v. City of New 14 York, 377 F.3d 200, 205-06 (2d Cir. 2004). Green raised his retaliation claim in a previous 15 Article 78 proceeding in the New York Supreme Court, Dutchess County. See Green v. Selsky , 16 No. 3862/04 at *3 (N.Y. Sup. Ct. Jan. 28, 2005) (unpublished decision). When addressing 17 Green’s retaliation claim, the New York Supreme Court stated that “there was nothing in the 18 record before this court which would support such a claim.” Id. Because Green has not asserted 19 that he did not have a full and fair opportunity to litigate this issue, he is precluded from raising 20 this claim in federal court. See Evans v. Ottimo , 469 F.3d 278, 281-82 (2d Cir. 2006) (“[T]he 21 party attempting to defeat [the] application [of issue preclusion] has the burden of establishing 22 the absence of a full and fair opportunity to litigate the issues.”). 235 In his superceding brief, Green argues that the “ambulatory health records” attached to 1 his complaint support his class-of-one equal protection and medical deliberate indifference 2 claims by illustrating that Appellee C.J. Koeignsmann removed Green’s medical hold “without 3 any sound medical judgment.” A review of those health records clearly refutes Green’s 4 argument as they show that the decisions to remove Green’s medical hold and change his 5 medical level from one to two were signed, not by Koeignsmann, but by a different medical staff 6 member who was not named as a defendant. As “personal involvement of defendants in alleged 7 constitutional deprivations is a prerequisite to an award of damages under § 1983,” 8 Koeignsmann’s lack of involvement in these actions is fatal to Green’s argument. Farid v. Ellen , 9 593 F.3d 233, 249 (2d Cir. 2010). 10 In addition, even if Green had named the correct defendant, the allegations supporting his 11 class-of-one and medical deliberate indifference claims would fail to state claims upon which 12 relief may be granted. First, plaintiffs alleging a class-of-one equal protection violation must, 13 inter alia , “‘show an extremely high degree of similarity between themselves and the persons to 14 whom they compare themselves.’” Ruston v. Town Bd. for the Town of Skaneateles , 610 F.3d 15 55, 59 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin , 468 F.3d 144, 159 (2d Cir. 2006)). 16 Here, Green variously described the inmates to which he compared himself as “other inmates at 17 Green Haven with medical holds,” and “other inmates with acute medical problems.” Neither of 18 these broad categories is sufficient to demonstrate the level of specificity required by class-of19 one claims as they do not permit an inference that the members of these classes are “so similar 20 [to Green] that no rational person could see them as different.” Ruston , 610 F.3d at 60. Most 21 importantly, Green has not identified any other similarly situated inmates with diabetes whose 22 medical holds were not rescinded and who were allowed to remain at Green Haven. See Village 236 of Willowbrook v. Olech , 528 U.S. 562, 564 (2000) (per curiam) (plaintiff must allege that he 1 “has been intentionally treated differently from others similarly situated”). 2 Second, with respect to his medical deliberate indifference claim, Green alleged in his 3 complaint that GHCF medical staff knew of hi s diabetes and nonetheless transferred him to 4 Southport Correctional Facility, where he suffered three hypoglycemic incidents. The Eighth 5 Amendment medical deliberate indifference analysis is composed of both objective and 6 subjective components. Hathaway v. Coughlin , 99 F.3d 550, 553 (2d Cir. 1996). Under the 7 subjective prong, mere negligence is not actionable, nor is “‘mere medical malpractice’ . . . 8 tantamount to deliberate indifference.” Chance v. Armstrong , 143 F.3d 698, 703 (2d Cir. 1998) 9 (quoting Hathaway , 99 F.3d at 553). Instead, deliberate indifference is “equivalent to subjective 10 recklessness, as the term is used in criminal law . . . [and] requires that the charged official act or 11 fail to act while actually aware of a substantial risk that serious inmate harm will result.” 12 Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006); see also Chance , 143 F.3d at 703 13 (culpable recklessness is “an act or failure to act . . . that evinces a conscious disregard of a 14 substantial risk of serious harm” (citation and internal quotation marks omitted)). 15 Assuming that diabetes is “sufficiently serious” to satisfy the objective component of the 16 medical deliberate indifference test, Green has not satisfied the subjective prong by alleging that 17 any of the GHCF medical staff was aware of a substantial risk that, if he were transferred to 18 Southport, serious harm would result. Specifically, Green has never explained why Southport 19 was ill-equipped to treat his diabetes and, more importantly, he has not alleged that any 20 individual at Green Haven knew that there was a substantial risk that Southport would provide 21 inadequate treatment for Green’s diabetes, and then consciously disregarded that risk by 22 approving the transfer. See Salahuddin , 467 F.3d at 280. Accordingly, there is no indication 237 that Green could state a plausible medical deliberate indifference claim, even if he had named 1 the correct defendant. 2 Green also argues that his ambulatory health records substantiated his Eighth 3 Amendment excessive force claim. The Eighth Amendment “prohibits the infliction of cruel and 4 unusual punishments, including the unnecessary and wanton infliction of pain.” Griffin v. 5 Crippen , 193 F.3d 89, 91 (2d Cir. 1999) (citation and internal quotation marks omitted). For 6 excessive force claims, “the core judicial inquiryis . . . whether force was applied in a good-faith 7 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 8 McMillian , 503 U.S. 1, 7 (1992). 9 Green’s ambulatory health records indicate that on the day after the incident in the prison 10 shower involving Appellees Huttel, Sarles, and Tillotson, Green received treatment for a slight 11 abrasion on his right wrist and was given Motrin for pain. While his health records support his 12 allegation that he suffered some injury following this incident, Green’s complaint must still be 13 examined to determine whether he plausibly alleged that the force that caused this injury was 14 used “maliciously or sadistically,” rather than in a good faith attempt to restore discipline. See 15 id. at 6-7. Although Green characterizes his encounter with the officers as an “attack,” he has 16 not alleged facts supporting a reasonable inference that the officers either used excessive force or 17 acted either sadistically or with malice. While we recognize that pro secomplaints must be read 18 with solicitude, Green has not adequately alleged facts that could constitute cruel and unusual 19 punishment in violation of the Eighth Amendment. 20 Finally, Green argues that, in light of the exhibits attached to the defendant’s motion to 21 dismiss and the documents he submitted in connection with his cross-motion for summary 22 judgment, the district court should have converted the motion to dismiss into one for summary 238 judgment. “[W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion, 1 a district court must either exclude the additional material and decide the motion on the 2 complaint alone or convert the motion to one for summary judgment under Fed. R. Civ. P. 56 3 and afford all parties the opportunity to present supporting material.” Friedl v. City of New York, 4 210 F.3d 79, 83 (2d Cir. 2000) (alteration in original) (emphasis added) (internal quotation 5 marks omitted). In its decision, the district court clearly chose to exclude the additional material 6 attached to the defendants’ motion to dismiss—it first summarized the allegations made in 7 Green’s complaint, citing no facts other than those alleged in the complaint, and then referenced 8 no documents other than the complaint in its discussion of Green’s claims. Accordingly, 9 because the mere “[a]ttachment of an affidavit or exhibit to a Rule 12(b)(6) motion . . . does not 10 without more establish that conversion is required,” Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 11 1999), and there is no indication “that the district court relied on inappropriate material in 12 granting the motion,” id. , Green’s arguments are without merit. 13 We have considered all of Green’s remaining arguments and find them to be without 14 merit. Accordingly, we AFFIRMthe judgment of the district court. 15
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20