Filed: Dec. 21, 2012
Latest Update: Mar. 26, 2017
Summary: 11-1475-pr Allah v. Artuz 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 P
Summary: 11-1475-pr Allah v. Artuz 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 PA..
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11-1475-pr
Allah v. Artuz
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 21st day of December, two thousand twelve.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN GLEESON,
District Judge.*
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TYHEEM ALLAH, AKA TYHEEM KEESH,
Plaintiff-Appellant,
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D. MICHAEL, Lieutenant, T. BEZIO, Prison
Guard, CZYZ, Lieutenant, T. QUACKENBUSH,
Lieutenant, GAIL DOUGHERTY, Tier
Assistant, Counselor, THOMAS A. COUGHLIN,
III, former Commissioner, GLEN S. GOORD,
Commissioner, WALSH, Captain, DONALD,
Director of Special Housing Unit, New
York State Department of Correction, JOSE
PICO, Administrative Hearing Officer,
Defendants,
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CHRISTOPHER ARTUZ, Superintendent,
JOHN/JANE DOES, Physicians and/or
*
The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Physician Assistants, JOSEPH T. SMITH,
Superintendent,
Defendants-Appellees.**
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FOR PLAINTIFF-APPELLANT: Tyheem Allah, AKA Tyheem Y. Keesh,
pro se, Ossining, New York.
FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor
General, Steven C. Wu, Special
Counsel to the Solicitor General,
Claude S. Platton, Assistant
Solicitor General, for Eric T.
Schneiderman, Attorney General of
the State of New York, New York,
New York.
Appeal from the United States District Court for the
Southern District of New York (Hellerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the memorandum and order and orders of the
district court are AFFIRMED.
Plaintiff-appellant Tyheem Allah, AKA Tyheem Keesh
("Keesh"), appeals from the district court's "final judgment
entered in this action on April 18, 2011." No judgment, however,
was ever entered below. We assume Keesh is appealing from the
district court's memorandum and order entered August 6, 2008
granting defendants-appellees' summary judgment motion in part,
its order entered November 9, 2010 denying appointment of counsel
in forma pauperis, and its order entered April 18, 2011 granting
summary judgment dismissing the remaining claim in the case.1
**
The Clerk of Court is directed to amend the official
caption to conform with the above.
1
A final judgment is deemed entered 150 days after the
district court's entry of its order granting summary judgment,
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On appeal, Keesh principally challenges the district
court's rulings (1) dismissing his § 1983 claim based on
deliberate indifference to his medical needs in violation of his
rights under the Eighth and Fourteenth Amendments, (2) dismissing
his retaliation claim, and (3) denying his request for
appointment of counsel in forma pauperis. We assume the parties'
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
We review de novo the district court's grant of summary
judgment, viewing the evidence and drawing all inferences in
favor of the non-moving party. See Ruggiero v. Cnty. of Orange,
467 F.3d 170, 173 (2d Cir. 2006). We review a district court's
denial of appointment of counsel for abuse of discretion. See
Hodge v. Police Officers,
802 F.2d 58, 60 (2d Cir. 1986).
1. Deliberate Indifference
To demonstrate deliberate indifference by prison
officials for purposes of 42 U.S.C. § 1983, Keesh was required to
satisfy a two-prong test. The objective prong requires that the
prison officials actually deprived Keesh of adequate medical care
and the deprivation was sufficiently serious. See Salahuddin v.
Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). The subjective prong
requires that the prison officials were aware of a substantial
see Fed. R. Civ. P. 58(c)(2)(B), and in light of Rule 3(c)(1)(B)
of the Federal Rules of Appellate Procedure and this Court's
liberal construction of pro se filings generally, we address
Keesh's arguments pertaining to the above-mentioned orders of the
district court. The defendants-appellees do not argue that we
lack appellate jurisdiction.
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risk of serious harm but ignored the risk. Johnson v. Wright,
412 F.3d 398, 403 (2d Cir. 2005).
We affirm the district court's dismissal of Keesh's
deliberate indifference claim, as Keesh failed to satisfy the
objective prong of the test. Keesh did not present evidence from
which a reasonable jury could have found a serious deprivation of
adequate medical care as to the pins in his feet. In 1995, Dr.
DeWire examined Keesh and concluded that the pain complained of
is "not in [the] area of [the] pins" and that there was "no need
to remove [the] pins." In 2004, Dr. Forte examined Keesh and
found "no medical need" for an orthopedic consultation regarding
the removal of pins from his feet. In 2010, Dr. Chung Lee
concluded that there was "no basis for removing" the pins from
Keesh's feet, that "surgery to remove the pins would be
unnecessary and would cause him additional pain[,]" and that
Keesh "has received standard medical care in connection with his
feet." Keesh did not present admissible evidence to contradict
these medical opinions.
Nor did Keesh show the existence of a genuine issue of
fact as to whether he suffered a serious deprivation of mental
health treatment, as he was offered professional mental health
treatment but refused because "he did not trust the white mental
health staffs provided." "So long as the treatment given is
adequate, the fact that a prisoner might prefer a different
treatment does not give rise to an Eighth Amendment violation."
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
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2. Retaliation
To sustain a retaliation claim, Keesh was required to
show "(1) that the speech or conduct at issue was protected, (2)
that the defendant took adverse action against the plaintiff, and
(3) that there was a causal connection between the protected
speech and the adverse action." Gill v. Pidlypchak, 389 F.3d
379, 380 (2d Cir. 2004) (citations and internal quotation marks
omitted).
Even assuming the first two elements were satisfied,
Keesh did not demonstrate a triable issue of fact as to a causal
connection between his filing of grievances against the prison
officials and adverse actions taken against him, i.e., being sent
to a special housing unit ("SHU") for 180 days, and being
transferred away from Green Haven Correctional Facility without
receiving surgery to remove the pins from his feet.
Keesh was placed in SHU based on a 1994 misbehavior
report citing him for exposing his private parts while in his
cell, and Keesh presented no evidence to suggest a retaliatory
motive behind the decision to place him in SHU. Keesh was
subsequently transferred away from Green Haven pursuant to the
New York State Department of Corrections and Community
Supervision policy and procedure for "Staff Separation reasons,"
apparently to separate him from corrections officer Bezio. Artuz
did not make the decision to transfer Keesh, and attested that he
was not even aware of a complaint by Keesh against him. Thus,
the district court properly granted summary judgment in this
regard.
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3. Appointment of Counsel
Keesh argues that the district court abused its
discretion in denying him appointment of counsel, and that,
consequently, he was unable to conduct adequate discovery to
support his claims and to identify the Doe defendants. The
district court denied Keesh's application because it was unable
to determine whether his claim was "likely to be of substance."
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). The
district court's denial was without prejudice, however, to
Keesh's renewing his application. Keesh did not renew his
request. Moreover, Keesh was appointed pro bono counsel and was
represented by counsel during discovery, for the filing of his
amended complaint, and in opposing the defendants' first motion
for summary judgment, which was made after more than two years of
discovery. We conclude that the district court did not abuse its
discretion in denying Keesh's application for appointment of
counsel after his counsel withdrew.
We have considered all of Keesh's remaining arguments
and conclude they are without merit. Accordingly, we AFFIRM the
memorandum and order and orders of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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