19-847
    Green v. Shaw
                         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 ASUMMARY 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 18th day of September, two thousand twenty.

    PRESENT:
                ROBERT D. SACK,
                ROBERT A. KATZMANN,
                RICHARD C. WESLEY,
                      Circuit Judges.
    _____________________________________

    Courtney Green,

                          Plaintiff-Appellant,

                    v.                                                     19-847

    Shaw, Registered Nurse, Auguste,
    Registered Nurse,

                      Defendants-Appellees.
    _____________________________________


    FOR PLAINTIFF-APPELLANT:                                 Courtney Green, pro se, Somers, CT.

    FOR DEFENDANTS-APPELLEES:                                Zenobia Graham-Days, Assistant
                                                             Attorney General (Clare Kindall,
                                                             Solicitor General, on the brief), for
                                                             William Tong, Attorney General for
                                                             the State of Connecticut, Hartford,
                                                             CT.
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       Appeal from a judgment of the United States District Court for the District of

Connecticut (Haight, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Courtney Green, proceeding pro se, appeals from the district court’s order

granting summary judgment in favor of the Appellees, two nurses, with respect to his 42 U.S.C.

§ 1983 claims. 1 The district court held that Green had not presented sufficient evidence that

either Appellee had been deliberately indifferent to his medical needs and, alternatively, that the

Appellees were entitled to qualified immunity. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       “We review a district court’s grant of summary judgment de novo[,] . . . resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police

Dep’t, 

, 126–27 (2d Cir. 2013) (per curiam). 2 “Summary judgment is proper only

when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Doninger v. Niehoff, 

, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

“Assessments of credibility and choices between conflicting versions of the events are matters


1
  As noted by the district court, the defendant initially identified as “Auguste” later changed her
name to Brennan. See Ruling on Defendants’ Motion for Summary Judgment at 1 n.1, Green v.
Shaw, No. 3:17-cv-913 (CSH) (D. Conn. Mar. 29, 2019), ECF No. 30. We refer to her by the latter
name.
2
 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations,
emphases, footnotes, and citations are omitted.

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for the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 

,

553 (2d Cir. 2005).

        The Eighth Amendment forbids “deliberate indifference to serious medical needs of

prisoners.” Estelle v. Gamble, 

, 104 (1976). A deliberate indifference claim has two

requirements. The first requirement is objective and asks (1) “whether the prisoner was actually

deprived of adequate medical care,” meaning that the officials responsible for his treatment

“fail[ed] to take reasonable measures in response to a medical condition”; and (2) “whether the

inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 

, 279–80

(2d Cir. 2006).

        “The second requirement for an Eighth Amendment violation is subjective: the charged

official must act with a sufficiently culpable state of mind.”

This means that the

defendant “must know of and disregard an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and [s]he must also draw the inference.” Hill v. Curcione, 

, 122

(2d Cir. 2011). For instance, “a physician may be deliberately indifferent if he or she consciously

chooses an easier and less efficacious treatment plan.” Chance v. Armstrong, 

, 703

(2d Cir. 1998). “Medical malpractice does not rise to the level of a constitutional violation unless

the malpractice involves culpable recklessness—an act or a failure to act . . . that evinces a

conscious disregard of a substantial risk of serious harm.” 

. Negligence

alone is insufficient.

       Green has not presented sufficient evidence to allow a jury to conclude that either

defendant acted “with a sufficiently culpable state of mind,” namely, recklessness.

As to defendant Shaw, the evidence, construed in the light most favorable to Green, shows that

Shaw saw Green on July 3, 2015, following his complaint of painful bowel movements and

rectal bleeding. Shaw diagnosed Green with hemorrhoids, instructed him to increase his water

and fiber intake, and told him to return if his symptoms did not improve in three or four days.

This appears to be consistent with the Connecticut Department of Corrections’s Nursing

Protocols for the treatment of hemorrhoids. Although Green argues that Shaw ought to have

prescribed him with medication, performed a visual exam, or referred him to a doctor, Shaw’s

failure to do so was, at most, negligent. A reasonable jury could not conclude, based on this

evidence, that Shaw actually “kn[ew] of and disregard[ed] an excessive risk to” Green’s well-

being, 

, especially given her unheeded instruction that he return in a few

days if things did not improve.

       We reach a similar conclusion as to defendant Brennan. The evidence, again viewed in

the light most favorable to Green, shows that Green saw Brennan once, in late August of 2015,

after he complained of “hemorrhoid trouble/problems.” Green informed Brennan that he had

been diagnosed with hemorrhoids and that he had been using topical cream to treat it, but that he

was still experiencing rectal bleeding. When Green asked how long he could expect his



3
 Because this conclusion is sufficient to affirm the district court’s grant of summary judgment,
we need not, and do not, consider whether Green presented sufficient evidence as to the
objective prong, nor do we address the district court’s alternative holding as to qualified
immunity.

                                                 4
hemorrhoids to last, Brennan informed him that they were chronic. Green asked to be seen by a

doctor, but Brennan told him that nothing could be done and reiterated that hemorrhoids are a

chronic condition. Green then indicated that he had no further questions.

       A reasonable jury might conclude, based on this evidence, that Brennan’s failure to treat

or more thoroughly examine Green was negligent. Indeed, Brennan claimed during this litigation

that, had she known Green was experiencing rectal bleeding, she would have referred him to a

doctor. But Green did tell Brennan about his rectal bleeding—at least according to Green’s

account, which we must credit at this stage of the litigation. The Nursing Protocols recommend a

referral to a doctor in the case of either “[s]ignificant rectal bleeding” or “[n]o improvement after

one week of interventions,” and a jury might find either condition to have been met here.

       A reasonable jury could not conclude, however, that Brennan was reckless, because the

record contains no evidence establishing that Brennan “conscious[ly] disregard[ed] . . . a

substantial risk of serious harm.” 

. There is no evidence that Green told

Brennan the duration, frequency, or severity of his rectal bleeding. There is no evidence that

Brennan believed that Green’s condition would deteriorate if left untreated, nor that Brennan

understood Green to be at serious risk in the absence of more aggressive treatment or screening. 4



4
  We note that rectal bleeding can be a warning sign for colon cancer. See, e.g., Roni Caryn
Rabin, More Young People Are Dying of Colon Cancer, N.Y. TIMES (Aug. 22, 2017),
https://www.nytimes.com/2017/08/22/well/live/more-young-people-are-dying-of-colon-
cancer.html. Because we conclude that Green failed to carry his burden as to the subjective
prong, however, we have no occasion to consider whether Green presented enough evidence to
allow a reasonable jury to conclude that his rectal bleeding was sufficiently serious under the
objective prong.


                                                  5
Finally, even if Brennan’s failure to provide treatment was negligent, it was an isolated

occurrence, after which Green expressed his apparent satisfaction and made no further requests

for medical intervention until he was transferred to a different facility some seven months later.

Under the circumstances presented here, Brennan’s failure to provide treatment for an apparently

non-emergency condition on a single occasion does not indicate deliberate indifference. Cf.

Harrison v. Barkley, 

, 138 (2d Cir. 2000) (noting that a “one-year delay in treating a

cavity can evidence deliberate indifference on the part of prison officials”). A reasonable jury

therefore could not conclude that Brennan acted with the requisite culpability. 5

       We have considered all of Green’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




5
  Green suggests that he received inadequate medical care after he was transferred to another
facility in March of 2016. Specifically, Green’s affidavit in opposition to summary judgment
states that his symptoms significantly worsened following his transfer; that he was not seen by a
doctor for several months, despite repeated requests; and that he was eventually diagnosed with
an anal fissure that required multiple surgeries to address. Neither Shaw nor Brennan was
involved in this course of treatment, however, and none of the officials allegedly responsible for
such treatment were named as defendants in this suit. Accordingly, we express no opinion as to
whether Green’s evidence might support a cause of action against any person not named as a
defendant here.

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