George M. CHAVIS, Plaintiff-Appellant, v. Thomas FERRIS, James Waite, Richard Donahue, Paul Titus, Defendants-Appellees, 358 F. App'x 258

SUMMARY ORDER New York State prisoner George M. Chavis appeals pro se from a decision of the district court granting defendants

summary judgment on Chavis’s § 1983 claims alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment, First Amendment retaliation, and violation of his due process rights. We review a district court’s ruling on

summary judgment de novo, see Dillon v. Moruno, 497 F.3d 247, 251 (2d Cir.2007), and we will affirm only if the record evidence, construed in the light most favorable to Chavis, shows no genuine issue of material fact and defendants’ entitlement to judgment as a matter of law, see Fed. R.Civ.P. 56(c); White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir.2007).

In applying this standard, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1.Deliberate Indifference To establish deliberate indifference to his serious medical needs, Chavis was required to adduce evidence of (1) a medical need constituting “a condition of urgency” that might result in “death, degeneration, or extreme pain,” and (2) defendant’s knowledge and disregard of “an excessive risk to [Chavis’s] health or safety.” Johnson v.

Wright, 412 F.3d 398, 403 (2d Cir.2005) (internal quotation marks omitted). Assuming arguendo that Chavis’s toe surgeries satisfy the former requirement, he failed to present evidence permitting a finding in his favor on the latter. It is undisputed that defendant Ferris is not a medical professional, and no other evidence indicates his personal knowledge of Chavis’s medical needs. To the contrary, Ferris’s only knowledge was that—according to medical staff—Chavis did not need the special footwear he demanded. As Chavis cites no evidence to the contrary, his challenge to the award of

summary judgment on his Eighth Amendment claim is without merit. 2. First Amendment Retaliation To establish a prima facie case of First Amendment retaliation, Chavis must demonstrate “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against [him], and (3) that there was a causal connection between the protected speech and the adverse action.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) (internal quotation marks omitted).

Chavis submits that the district court erred in concluding that his claims failed at the first step of this analysis because the record shows that defendants’ challenged actions followed his references to his right to seek judicial relief. In fact, the record clearly demonstrates Chavis’s violation of a number of prison rules that independently supported initiating the challenged disciplinary proceedings. See id. at 287-88. For that reason, the district court appropriately awarded defendants

summary judgment on the First Amendment retaliation claims. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). 3. Due Process Chavis’s contention that the district court erred in failing to address his claim that defendant Donahue violated his due process rights is without merit. Chavis’s complaint alleged that defendant Waite violated his due process rights, but attributed no such wrongdoing to Donahue. As Chavis never sought leave to amend the complaint, the district court’s refusal to consider his due process claim against Donahue, raised for the first time on

summary judgment, was not an abuse of discretion. See Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.2006) (“[A] district court does not abuse its discretion when it fails to grant leave to amend a complaint without being asked to do so.”). Any argument that the district court erred in granting Waite

summary judgment on the due process claim that was stated in Chavis’s complaint is similarly meritless. Although Chavis argues that he was entitled to separate resolution of two administrative appeals challenging disciplinary decisions, state statutes and regulations governing prison discipline create cognizable liberty interests only in narrow circumstances. See Arce v.

Walker, 139 F.3d 329, 334 (2d Cir.1998) (“[T]he inmate must establish that his confinement or restraint (1) creates an atypical and significant hardship ... in relation to the ordinary incidents of prison life, and (2) that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.” (internal quotation marks and citations omitted)). Even assuming that Chavis’s 60 days of “keep-lock” time would satisfy the first prong of this test, see Hanrahan v.

Doling, 331 F.3d 93, 97 (2d Cir.2003) (noting that “[t]he length of disciplinary confinement is one of the guiding factors” in the hardship determination), Chavis does not show how the resolution of his two appeals by a single written decision violated any rule governing prison disciplinary proceedings, or otherwise suggest how such resolution rendered the process he was afforded insufficient. On this record, the district court properly granted

summary judgment in favor of Waite. 4. Motion for Default Judgment As defendants timely filed and served them brief and appendix, Chavis’s pending motion for default judgment is DENIED. 5. Conclusion We have considered Chavis’s remaining arguments and conclude that they are without merit. Accordingly, the district court’s judgment is AFFIRMED.