Wilfred L. HART, Plaintiff-Appellant, v. Edward BLANCHETTE, M.D. and Omprakash Pillai, M.D., Defendants-Appellees, 149 F. App'x 45

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this order. Plaintiff Wilfred L. Hart appeals from an October 29, 2004 order of the District adopting the August 12, 2004 Recommended Ruling of Magistrate Judge Holly B. Fitzsimmons, which in turn recommended that defendants’ motion for

summary judgment be granted. Plaintiff brought his claim in the District Court pursuant to 42 U.S.C. §§ 1983 and 1988, against Edward Blanchette, M.D., and Omprakash Pillai, M.D., two employees of the Connecticut Department of Corrections, arguing that their alleged deliberate indifference to plaintiffs medical needs at the time of his incarceration — principally their alleged failure to diagnose and treat his colon cancer in a timely manner — violated rights guaranteed by the Eighth Amendment to the Constitution of the United States.

We have recently restated the well established rule that, [a] prisoner must satisfy two requirements — one objective and one subjective — -in order to prevail on such a deliberate indifference claim. First, the prisoner must prove that the alleged deprivation of medical treatment is, in objective terms, sufficiently serious — that is, the prisoner must prove that his medical need was a condition of urgency, one that may produce death, degeneration, or extreme pain. Second, the prisoner must prove that the charged official acted with a sufficiently culpable state of mind.

This requires that the prisoner prove that the charged official knows of and disregards 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 he must also draw the inference. Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005) (internal quotation marks and citations omitted). The Magistrate Judge concluded that plaintiff satisfied the objective requirement, but failed to satisfy the subjective requirement, of a deliberate indifference claim. She therefore recommended that

summary judgment be granted in defendants’ favor. The District Court agreed and adopted the Recommended Ruling. We review the District Court’s grant of

summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 165-66 (2d Cir.2003).

Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” for these purposes if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

We have considered all of plaintiffs arguments and, substantially for the reasons stated in the Magistrate Judge’s August 12, 2004 Recommended Ruling, we affirm the judgment of the District Court with respect to defendant Blanchette. We conclude, however, that genuine issues of material fact exist with respect to Pillai’s liability, such that the claims against Pillai ought to be submitted for determination by a trier of fact.

Pillai concedes that he read plaintiffs medical chart when he began treating plaintiff; therefore Pillai knew that a mass had never been ruled out and that two years of treatment for ulcers had not alleviated plaintiff’s suffering. As plaintiff is not required to introduce expert testimony, see Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir.1994), we conclude that this record is sufficient to avoid

summary judgment. Although these facts may ultimately establish only negligence, the determination of the difference between negligence and deliberate indifference is, in the circumstances of this case, one for a trier of fact to make. See Johnson, 412 F.3d at 404 (finding

summary judgment inappropriate where jury could find that application of standard policy in plaintiffs case constituted either negligence or deliberate indifference); Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir.1990) (holding that whether failure to diagnose constituted deliberate indifference was a material factual dispute precluding

summary judgment). Accordingly, the judgment of the District Court is hereby AFFIRMED in part, VACATED in part, and REMANDED for farther proceedings consistent with this order.