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Steven Collazo v. James Pagano

September 2, 2011; as amended October 17, 2011

STEVEN COLLAZO, PLAINTIFF-APPELLANT,
v.
JAMES PAGANO, FOOD SERVICES MANAGER, GREAT MEADOW CORRECTIONAL FACILITY, DEFENDANT-APPELLEE, DR. EDMUNDO NUNEZ, PHYSICIAN, GREAT MEADOW CORRECTIONAL FACILITY, AND GARY GREENE, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, DEFENDANTS.



Per curiam.

Argued: August 24, 2011

Before: WINTER, CABRANES, and STRAUB, Circuit Judges.

Steven Collazo, an inmate who filed a 42 U.S.C. § 1983 claim against prison officials at Great Meadow Correctional Facility, appeals from two orders entered in the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge). One order revoked Collazo's in forma pauperis status pursuant to 28 U.S.C. § 1915(g). The other granted summary judgment to defendant-appellee James Pagano on Collazo's claims of deliberate indifference to medical needs and due process violations. We hold that the District Court's order revoking Collazo's in forma pauperis status was correct because, on the basis of Mills v. Fischer, 645 F.3d 176 (2d Cir. 2011), any action against a prosecutor for initiating a prosecution or for presenting the prosecution's case and that is dismissed sua sponte on the ground of absolute prosecutorial immunity is deemed "frivolous" for purposes of 28 U.S.C. § 1915(g). Collazo's other claims on appeal are without merit. Accordingly, the two orders of the District Court are AFFIRMED.

Plaintiff-appellant Steven Collazo, an inmate at Great Meadow Correctional Facility ("Great Meadow"), filed suit, pro se, in the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge) against three Great Meadow employees. Collazo's suit, brought pursuant to 42 U.S.C. § 1983, alleges that he was improperly denied access to medically-prescribed therapeutic diets, resulting in violations of his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to due process. The litigation did not go well for Collazo. First, his in forma pauperis status was revoked after the District Court concluded that he was a "three-strikes" litigant within the meaning of § 1915(g) of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g). Collazo paid the filing fee so that he could proceed with his case. Subsequently, the District Court, relying on a Report & Recommendation prepared by Magistrate Judge David R. Homer, granted defendants' motion for summary judgment and dismissed the suit. Collazo, now represented by counsel, appeals the revocation of his in forma pauperis status, as well as the decision of the District Court to grant summary judgment to one of the defendants, James Pagano.

BACKGROUND

On January 22, 2003, Collazo, then incarcerated at Great Meadow Correctional Facility, was examined by Dr. Edmundo Nunez, a facility physician. Following some tests, Dr. Nunez concluded that Collazo's triglyceride levels would benefit from a therapeutic diet low in saturated fats. Collazo remained on this diet for several months, but it was jeopardized on September 15, 2003, when a corrections officer issued a misbehavior report to Collazo for allegedly throwing away his food after having an argument with a kitchen server. Collazo was charged with violating three prison disciplinary rules: refusing direct orders by not complying with his medical diet, wasting food by throwing away his special dietary meal, and failing to comply with mess hall serving policies.

Defendant James Pagano, the Director of Food Services at Great Meadow Correctional Facility, was informed of this incident by the corrections officer and a cook, both of whom said that this was the fourth time Collazo had thrown away his food. Accordingly, Pagano recommended to Dr. Albert Paolano, Director of Health Services at Great Meadow, that Collazo's special diet be discontinued. Dr. Paolano approved the request, and Collazo was notified on September 17 that his diet would be discontinued as of September 19.

At a disciplinary hearing on September 18, 2003, Collazo was found guilty of refusing a direct order, but was found not guilty of wasting food and of failing to comply with mess hall policy. On September 26, Collazo filed a grievance in order to have his special diet restored. On October 10, Collazo's request was granted, conditioned on his first visiting with Dr. Nunez.

Over the next few months, Collazo was a "no show" for several scheduled visits with Dr. Nunez. Collazo finally appeared for his scheduled appointment in April 2004. By July, Dr. Nunez had diagnosed Collazo with diabetes, and at that point recommended that he be placed on a new specialized diet. Subsequently, Pagano conducted a review in which it was discovered that Collazo had missed eighteen of his special meals during the week of July 19, 2004. On this basis, Pagano once again recommended to Dr. Paolano that Collazo's special diet be revoked, a recommendation Dr. Paolano once again accepted.

Upon further investigation, it came to light that Collazo had missed all of these meals because no one had informed him that he was once again eligible for a special dietary offering. Collazo was found not guilty at the resulting disciplinary hearing, and his special diet was restored on September 21, 2004. He appears to have remained on the diet since.

Collazo commenced the instant action on July 31, 2006. Pursuant to 42 U.S.C. § 1983, Collazo brought suit against Pagano, Dr. Nunez, and Gary Greene (Superintendent of Great Meadow), claiming that they improperly denied him his medically-prescribed therapeutic diets, thereby violating his due process rights under the Fourteenth Amendment, as well as his Eighth Amendment right to be free from cruel and unusual punishment.

DISCUSSION

We turn first to the issue of whether the District Court correctly revoked Collazo's in forma pauperis status on account of his having accrued at least three "strikes" pursuant to § 1915(g). "The district court's decision that a certain type of dismissal constitutes a 'strike' for purposes of § 1915(g) is an 'interpretation of a federal statute . . . which [this Court] review[s] de novo.'" Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) (quoting United States. v. Edwards, 960 F.2d 278, 281 (2d Cir. 1992)) (alterations in original). Collazo does not challenge two of the strikes found by the District Court, but, in relevant part, he argues that the District Court improperly counted one suit that he had filed that was ultimately dismissed by the United States District Court for the Eastern District of New York on the grounds of absolute prosecutorial immunity. Collazo contends that dismissal on the grounds of absolute immunity does not fit within the definition of a "strike" set forth in § 1915, and thus cannot be counted against him.*fn1 However, as we have only recently stated: "[§ 1915] does not explicitly categorize as frivolous a claim dismissed by reason of judicial immunity, but we will: Any claim dismissed on the ground of absolute judicial immunity is 'frivolous' for purposes of 28 U.S.C. § 1915(g)." Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011). We think the same can be said of any claim against a prosecutor for "initiating a prosecution [or for] presenting the State's case," Burns v. Reed, 500 U.S. 478, 486 (1991) (quotation mark omitted), that is dismissed sua sponte on the ground of absolute prosecutorial immunity.*fn2 Additionally, we agree with the District Court that Collazo's complaint failed to establish that he was "under imminent danger of serious physical injury." § 1915(g). Indeed, by the time the suit was filed, Collazo had already been restored to a satisfactory diet.*fn3

Next we turn to Collazo's argument that the District Court improperly granted Pagano's motion for summary judgment on Collazo's ยง 1983 claims of deliberate indifference to his serious medical needs and denial of due process. We review de novo a district court's grant of summary judgment, drawing all factual inferences in favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir. 2008). "Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, 'there is no genuine dispute as to any material ...


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