12-1358-pr
     Rivera v. Bhavsar



                              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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
     York, on the 4th day of February, two thousand thirteen.

     PRESENT:
                 CHESTER J. STRAUB,
                 PETER W. HALL,
                 CHRISTOPHER F. DRONEY,
                       Circuit Judges.
     _________________________________________

     JOSE RIVERA,

                         Plaintiff-Appellant,

                         v.                                                12-1358-pr

     BEPEN BHAVSAR, Eastern Correctional Facility,
     Physician, MIKHAIL GUSMAN, Eastern Correctional
     Facility, Physician,

                 Defendants-Appellees.
     _________________________________________

     FOR APPELLANT:                     Jose Rivera, pro se, Woodbourne, NY.

     FOR APPELLEES:                     Eric T. Schneiderman, Attorney General of the State of New
                                        York; Barbara D. Underwood, Solicitor General; Andrea
                                        Oser, Deputy Solicitor General; Zainab A. Chaudhry,
                                        Assistant Solicitor General of Counsel, Albany, NY.
       Appeal from a judgment of the United States District Court for the Northern

District of New York (D’Agostino, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Jose Rivera, proceeding pro se, appeals from the district court’s grant of

summary judgment, dismissing his 42 U.S.C. § 1983 action. We assume the parties’

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

       We review orders granting summary judgment de novo and focus on whether the

district court properly concluded that there was no genuine issue as to any material fact and

the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &

Abramson, L.L.P., 

, 300 (2d Cir. 2003). “In determining whether there are

genuine issues of material fact, we are required to resolve all ambiguities and draw all

permissible factual inferences in favor of the party against whom summary judgment is

sought.” Terry v. Ashcroft, 

, 137 (2d Cir. 2003) (internal quotations omitted).

Summary judgment is appropriate “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 

, 587 (1986).

       Upon such review, we conclude that Rivera’s appeal is without merit substantially

for the reasons articulated by the district court in its well-reasoned order. Rivera v.

Bhavsar, No. 09-cv-1394 (N.D.N.Y. Mar. 13, 2012). We decline to consider Rivera’s

claim, raised for the first time on appeal, that Dr. Bepen Bhavsar was deliberately

indifferent to his medical needs in prescribing Condylox gel because of his history of

seizures and mental illness. See In re Nortel Networks Corp. Secs. Litig., 

,




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132 (2d Cir. 2008). We have considered all of Rivera’s remaining arguments and find

them to be without merit.

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

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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