Willie BUTLER, Plaintiff-Appellant, v. B. FURCO, Nurse Administration, Defendant-Appellee. Genovese, Doctor, Director, Alam, Doctor, Defendants, 614 F. App'x 21

SUMMARY ORDER Plaintiff Willie Butler, proceeding pro se, appeals from the District Court’s November 19, 2013 judgment granting defendants’ motion for

summary judgment, and dismissing Butler’s claims under 42 U.S.C. § 1983. Butler’s § 1983 action arises from his medical treatment at Sing Sing Correctional Facility. Before the District Court, Butler asserted that three medical professionals — Dr. Tasbirul Alam, Health Services Director Dr. Maryann Genovese, and Nurse Barbara Furco — were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment to the U.S. Constitution. The District Court granted defendants’ motion for

summary judgment and dismissed Butler’s claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a District Court’s grant of

summary judgment, viewing the facts “in the light most favorable to the non-moving party and drawing] all reasonable inferences in that party’s favor.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir.2011).

Summary judgment is warranted only where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir.2008). To prevail on his Eighth Amendment claim, Butler must show that the defendants were deliberately indifferent to a serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834-35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

The deliberate indifference standard is comprised of an objective and a subjective component: (1) the alleged deprivation of medical care “must be sufficiently serious”; and (2) the defendant must have acted with the requisite mental state, meaning “something more than mere negligence,” and akin to criminal recklessness. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks and citation omitted). In cases where the alleged “inadequacy is in the medical treatment given, the seriousness inquiry is narrower.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006).

We focus on the alleged inadequate treatment, not the underlying condition alone. Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.2003). We granted Butler’s motion to proceed in forma pauperis as to his “claim against Nurse Furco, which was not specifically addressed by the district court.” Dkt. No. 40. We dismissed the appeal as to Butler’s other claims. Id. Upon our de novo review of the record, we conclude that Butler’s claim against Nurse Furco is meritless. Therefore, although the District Court failed to address this claim separately, remand to the District Court would be futile. See McElwee v.

Cty. of Orange, 700 F.3d 635, 640 (2d Cir.2012) (“We may affirm

summary judgment on any ground supported by the record, even if it is not one on which the district court relied.”); Chase Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co. of Chicago, 93 F.3d 1064, 1072 (2d Cir.1996) (“An appellate court has the power to decide cases on appeal if the facts in the record adequately support the proper result, or if the record as a whole presents no genuine issue as to any material fact.” (internal citations and quotation marks omitted)).

Read broadly, Butler’s complaint alleged that Nurse Furco was deliberately indifferent to his serious medical needs in three ways: (1) through her involvement with Butler’s allergic reaction to an antibiotic, Doxycycline; (2) by falsely reporting that Butler was having stomach- problems instead of headaches; and (3) by refusing to administer an EKG, which was “mandatory” due to his pacemaker. As to Butler’s first claim, the record establishes that Butler’s medical file did not make reference to his allergy to Doxy-cycline before June 18, 2012.

Thus, there is no evidence in the record to support an inference that anyone involved in Butler’s care prior to June 18, 2012, including Nurse Furco, was aware of Butler’s allergy to Doxycycline before it was prescribed. Moreover, Nurse Furco did not prescribe the drug — Dr. Alam wrote the prescription. And the fact that Doxycycline could be taken safely .with the heart medication Butler was also taking — Digoxin—under-mines Butler’s claim that prescribing Dox-ycycline reflected deliberate indifference to his health.

Finally, even assuming that Butler’s allergic reaction was a “serious medical condition,” there is no evidence that Nurse Furco’s purported actions were taken with the requisite mental state.. Accordingly, no reasonable jury could conclude that Nurse Furco acted with deliberate indifference with respect to Butler’s reaction to taking Doxycycline. Butler’s second claim — that Nurse Fur-co “misreported” to doctors that Butler suffered stomach problems instead of a headache — is equally meritless.

Even assuming the truth of this allegation, no reasonable jury could conclude that this purported misrepresentation was made with the requisite mental state — ie., something more than mere negligence, akin to criminal recklessness. Negligent errors are not actionable as deliberate indifference to medical needs under the Eighth Amendment. See Hathaway, 99 F.3d at 553. Moreover, the record does not establish that Nurse Furco’s misrepresentation of Butler’s symptoms caused him any harm. In fact, the undisputed medical records show that Butler corrected any misunderstanding and was treated for a headache that day.

See Record on Appeal (“ROA”) doc. 69-2 at 19 (noting Butler complained of “headaches for 2-3 days” and order of “Ibuprofen_ for headache”). Accordingly, no reasonable jury could conclude that Nurse Furco acted with deliberate indifference in misrepresenting Butler’s headache as stomach problems. Finally, Butler’s third claim — that Nurse Furco failed to administer an EKG — has not been raised on appeal. Accordingly, Butler has abandoned this claim. See LoSacco v.

City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (explaining that a litigant — even one who is pro se — abandons any issues not raised in an appellate brief). In any event, the undisputed evidence establishes that Butler received an EKG on June 18, 2012, the same day Nurse Falco cared for him. See ROA doe. 69-2 at 19 (noting “EKG obtained”). Therefore, even if Nurse Furco negligently failed to administer an EKG, negligence is not actionable under the Eighth Amendment, and — in any event — the alleged negligence was immediately corrected.

CONCLUSION We have considered all of the arguments raised by Butler on appeal and find them to be without merit. For the reasons stated above, the November 19, 2013 judgment of the District Court is AFFIRMED.