18-2461-pr
     Smalls v. Wright

                               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.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 18th day of May, two thousand twenty.
 4
 5          PRESENT: PIERRE N. LEVAL,
 6                           RAYMOND J. LOHIER, JR.,
 7                           MICHAEL H. PARK,
 8                                   Circuit Judges.
 9          ------------------------------------------------------------------
10          VICTOR SMALLS,
11
12                           Plaintiff-Appellant,
13
14                      v.                                                       No. 18-2461-pr
15
16          CARSON WRIGHT,
17
18                           Defendant-Appellee.
19          ------------------------------------------------------------------
20          FOR PLAINTIFF-APPELLANT:                                  Victor Smalls, pro se, Cheshire,
21                                                                    CT.
22
1          FOR DEFENDANT-APPELLEE:                       Alma Rose Nunley, Assistant
2                                                        Attorney General, for William
3                                                        Tong, Attorney General for the
4                                                        State of Connecticut, Hartford,
5                                                        CT.

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

7    of Connecticut (Janet C. Hall, Judge).

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

9    AND DECREED that the judgment of the District Court is AFFIRMED.

10         Victor Smalls, proceeding pro se, appeals from a judgment entered August

11   17, 2018 by the United States District Court for the District of Connecticut (Hall,

12   J.) granting summary judgment in favor of Carson Wright, the principal

13   physician at the Northern Correctional Institution. Smalls alleged that Wright

14   acted with deliberate indifference to his medical needs, in violation of the Eighth

15   Amendment right against cruel and unusual punishment, and also failed to

16   inform him about the side effects of a medication that Wright had prescribed, in

17   violation of his Fourteenth Amendment right to medical information. We

18   assume the parties’ familiarity with the underlying facts and the record of prior




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 1   proceedings, to which we refer only as necessary to explain our decision to

 2   affirm.

 3          1. Eighth Amendment

 4          Smalls claimed that Wright acted with deliberate indifference to his

 5   medical needs by refusing to do the following: (1) order an MRI for further

 6   evaluation of Smalls’s lower-back pain; (2) refer Smalls to a specialist; and

 7   (3) prescribe Smalls a different medication after Smalls informed Wright that the

8    medicine Wright had prescribed (Elavil) was not working and had harmful side

9    effects.

10          As for Wright’s refusal to do the first two things, “[i]t is well-established

11   that mere disagreement over the proper treatment does not create a

12   constitutional claim.” Chance v. Armstrong, 

, 703 (2d Cir. 1998).

13   “A medical decision not to order an X-ray[] or like measures” “is a classic

14   example of a matter for medical judgment” that “does not represent cruel and

15   unusual punishment.” Estelle v. Gamble, 

, 107 (1976). We conclude

16   that Wright’s decisions not to order an MRI and not to refer Smalls to a specialist




                                                3
 1   constitute matters of medical judgment that do not give rise to an Eighth

 2   Amendment violation.

 3         We also conclude that Wright did not act with deliberate indifference by

 4   declining to prescribe a different medication to manage Smalls’s pain, even after

 5   Smalls told him that Elavil was not working effectively. It is true that “[i]n

 6   certain instances, a physician may be deliberately indifferent if he or she

 7   consciously chooses an easier and less efficacious treatment plan.” Chance, 

(quotation marks omitted). Here, however, Smalls failed to adduce

 9   any evidence that a better treatment plan existed. Moreover, the record shows

10   that Wright timely responded to Smalls’s written grievances and attempted to

11   help Smalls more effectively battle his back pain by ordering an additional X-ray

12   and directing Smalls to request a higher dosage of Elavil.

13         For these reasons, we reject Smalls’s argument that Wright acted with

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

15   Amendment.




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 1         2. Fourteenth Amendment

 2         Smalls also alleged that Wright violated his Fourteenth Amendment right

 3   to medical information by failing to inform him of Elavil’s side effects. “To

 4   establish a violation of this right, a prisoner must show,” among other things,

 5   that a government official’s failure to provide the relevant medical information

 6   caused the prisoner “to undergo medical treatment that he would have refused

 7   had he been so informed.” Pabon v. Wright, 

, 246 (2d Cir. 2006).

 8   Here, it is undisputed that Wright informed Smalls of Elavil’s side effects in

 9   January 2017, and that Smalls continued to take Elavil without interruption for

10   several months after receiving this information. Smalls therefore cannot show

11   that he would have stopped taking Elavil had he been informed of its side effects

12   at an earlier date. We accordingly reject Smalls’s claim that Wright violated his

13   Fourteenth Amendment right to medical information.

14         We have considered Smalls’s remaining arguments and conclude that they

15   are without merit. For the foregoing reasons, the judgment of the District Court

16   is AFFIRMED.

17                                         FOR THE COURT:
18                                         Catherine O’Hagan Wolfe, Clerk of Court

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