11-3526-cv
Smith v. NYS DOCS


                      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, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17th day of October, two thousand twelve.

PRESENT: JON O. NEWMAN,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
                        Circuit Judges.

———————————————————————

JIMMY SMITH, ANTHONY PALUMBO,
suing on behalf of themselves and all others similarly situated,
                                  Plaintiffs-Appellants,

                     v.                                               No. 11-3526-cv

BRIAN FISCHER, Commissioner, Department of Correctional Services,
                           Defendant-Appellee,

THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
                       Defendant.*

———————————————————————

FOR APPELLANT:                     ROBERT N. ISSEKS (Alex Smith, Peter A. Sell, on the
                                   brief), Middletown, New York and New York, New
                                   York


        *
       The Clerk of the Court is directed to amend the official caption in the case to
conform to the caption listed above.
FOR APPELLEE:                       DAVID LAWRENCE III, Assistant Solicitor General, of
                                    counsel (Barbara D. Underwood, Solicitor General,
                                    Michael S. Belohlavek, Senior Counsel, on the brief), for
                                    Eric T. Schneiderman, Attorney General of the State of
                                    New York, New York, New York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (George B. Daniels, Judge).

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

DECREED that the judgment of the district court is AFFIRMED in part and VACATED and

REMANDED in part.

       Plaintiffs-appellants Jimmy Smith and Anthony Palumbo1 filed a putative class action

against the New York State Department of Correctional Services (“DOCS”) and its

commissioner, defendant-appellee Brian Fischer, for deliberate indifference to their medical

needs as cardiac patients in violation of the Eighth Amendment.2 The district court (George

B. Daniels, Judge) denied class certification and granted summary judgment for Fischer with

respect to plaintiffs’ claims that they do not receive a sufficiently heart-healthy diet (“diet

claims”). The district court held a bench trial regarding plaintiffs’ claims that the conditions

of their transportation between Woodbourne Correctional Facility (“WCF”) and Albany

Medical Center (“AMC”) constituted deliberate indifference to their medical needs

(“transportation claims”). After trial, the district court entered judgment for Fischer. Smith



       1
        Appellants’ counsel stated at oral argument that Palumbo has been released from
custody. His claims are therefore moot.
       2
        Plaintiffs conceded in the district court that their lawsuit against DOCS is barred by
the Eleventh Amendment, so DOCS is not a party to this appeal.

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appeals both the summary judgment and the judgment following the bench trial. We assume

the parties’ familiarity with the facts and prior proceedings, which we reference only as

necessary to explain our decision.

       We review a district court’s decision to grant summary judgment de novo. Sudler v.

City of N.Y., 

, 168 (2d Cir. 2012). In the context of an appeal from a bench

trial, we review a district court’s conclusions of law de novo and its findings of fact for clear

error. Bessemer Trust Co. v. Branin, 

, 135 (2d Cir. 2012).

       To succeed on an Eighth Amendment deliberate indifference claim, a plaintiff must

satisfy two requirements. He must show both that the danger posed by the indifference he

alleges is “sufficiently serious” and that the defendant has acted with “deliberate indifference

to inmate health or safety” in failing to address this danger. Phelps v. Kapnolas, 

, 185 (2d Cir. 2002), quoting Farmer v. Brennan, 

, 834 (1994).

       1.     Diet Claims

       Smith argues that, because of his history as a heart attack survivor, he has special

nutritional needs, that these needs require him to eat a minimum number of servings of fruits

and vegetables, and that the meals provided by DOCS are inadequate to a degree that

represents deliberate indifference to his medical needs in violation of the Eighth Amendment.

The parties do not contest the contents of the menu available to Smith; both sides rely on the

same menu entered into the record below. Because the dietary facts are undisputed, the only

question is whether the diets provided by DOCS create sufficiently serious danger to inmate

health and whether DOCS provided the meals with requisite knowledge of that danger.


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       Smith was given the option to participate in special meal programs that appellee

contends met Smith’s dietary needs as a cardiac patient. DOCS provides two diets designed

to be low in cholesterol and sodium and high in fiber. DOCS arranged for Smith to meet

with its nutritionist, who specifically recommended that he enroll in the special diet and who

testified that the diets were nutritionally adequate. Smith enrolled in one of those diets.

       Smith relies primarily on a document published by the American Heart Association,

which recommends eating four to five servings of fruits and vegetables per day. The AHA

did not provide additional testimony in the case, and its health guidelines purport only to

provide a recommended number of servings of each food group per day based on a typical

1600- to 2000-calorie diet. The guidelines are not tailored for individuals with a history of

heart attacks, nor do they represent more than goals for a good diet, as opposed to dietary

necessities. The suggested guidelines alone cannot support Smith’s argument that, as a

matter of law, the Eighth Amendment requires prison administrators to provide four servings

of fruits and vegetables each day to cardiac patients. Smith concedes that he was offered

diets with at least two servings of vegetables and three servings of fruit each day during the

weeks documented in the record. On these facts, Smith has failed to meet his burden of

showing that the diet provided to him represented a sufficiently serious danger to his health

to violate the Eighth Amendment.

       Even if Smith had shown that the special meals provided by DOCS represented a

sufficiently serious danger to his health, he failed to show facts sufficient to demonstrate that

DOCS acted with deliberate indifference. It is undisputed that prison officials offered Smith


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access to special diets and arranged for him to meet with a registered dietician. Appellee

offered unrebutted testimony that prison officials worked to improve the menus they

provided to conform them to the latest nutritional science. Smith has not disputed or rebutted

this evidence of appellee’s efforts to tailor the diets of inmates to their medical needs.

Accordingly, Smith has not raised a genuine issue of fact as to whether appellee was

deliberately indifferent to his medical needs. As a result, summary judgment was appropriate

for the diet claims.

       2.     Transportation Claims

       Smith also argues that the manner in which he was transported from WCF to AMC

demonstrated deliberate indifference to his medical needs in violation of the Eighth

Amendment. The district court determined that, during van trips to the AMC, Smith suffered

from “anxiety and the accompanying symptoms of difficulty breathing, profuse sweating, and

chest pain” as well as pain in his upper body and wrists. Smith v. Fischer, No. 08 Civ.

07090, 

, at *5 (S.D.N.Y. July 27, 2011). But Dr. Mervat Makram, the

only medical professional called to testify at trial, stated that none of the symptoms Smith

complained of was caused directly by the methods used to restrain him during trips.

       We have recognized that “not all claims regarding improper . . . care will be

constitutionally cognizable” because “medical conditions[] may be of varying severity.”

Chance v. Armstrong, 

, 702 (2d Cir. 1998). Smith’s symptoms do not rise to

the level of severity required under the Eighth Amendment standard. In light of Dr.

Makram’s testimony, which the district court was entitled to credit, the district court’s



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conclusion that Smith did not face the kind of serious, objective risk required under the

Eighth Amendment inquiry was not error.

       Even if Smith had shown that the danger caused by his transportation was sufficiently

severe, the district court’s finding that appellee was not deliberately indifferent to his medical

needs is not clearly erroneous. At trial, Smith himself testified to the efforts made by Captain

Peter Early, head of security at WCF, as well as Dr. Makram and other corrections officers,

to address the discomfort he suffered under normal transportation protocols. Numerous steps

were taken to accommodate Smith’s medical needs, including altered restraint procedures,

easier access to therapeutic medication, and reduced trip times. While some officers were

unaware of these accommodations or otherwise failed to modify protocols, Smith never

notified Captain Early or security staff about these isolated failures. On this record, the

district court’s findings that prison officials were not deliberately indifferent to Smith’s

medical needs was amply supported.

       3.      Conclusion

       For the foregoing reasons, the judgment of the district court is AFFIRMED in part.

Because Palumbo’s claims are now moot, we VACATE the judgment of the district court with

respect to his claims and REMAND the case with instructions that Palumbo’s claims be dismissed

as moot.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




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