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September 13, 1996

GARY A. WILLIAMS, Plaintiff, against JOHN P. KEANE, Superintendent, DR. S. KAPOOR, Medical Director, DR. SHAPIRO, Staff Physician (Podiatrist), and DR. DYETT, Staff Physician, Defendants.

The opinion of the court was delivered by: SPRIZZO


 Pursuant to 42 U.S.C. § 1983, plaintiff Gary A. Williams, appearing pro se, brings the above-captioned action against defendants John P. Keane, Superintendent of the Sing Sing Correctional Facility ("Sing Sing"); Dr. S. Kapoor, Sing Sing Medical Director; and Sing Sing staff physicians Drs. Shapiro and Dyett (collectively "defendants"). Williams claims he was deprived of, inter alia, his Eighth Amendment right to be free from cruel and unusual punishment when defendants failed to provide him with a specific type of shoe insert to remedy his foot condition. Pursuant to Federal Rule of Civil Procedure 56, plaintiff moves and defendants cross-move for summary judgment. For the reasons that follow, plaintiff's motion is denied, and defendants' motion is granted.


 Beginning in 1981 and at all times relevant herein, plaintiff Gary A. Williams was incarcerated at various facilities of the New York State Department of Correctional Services ("DOCS"). During his incarceration, plaintiff sought and received treatment from institutional medical personnel for foot discomfort resulting from fallen arches. Complaint ("Compl.") at 3; Deposition of Gary A. Williams Dated February 4, 1993 ("Williams Dep.") at 5. Plaintiff described this discomfort as a "constant aching in [his] feet" or ankles which is alleviated when he is off his feet. Williams Dep. at 40. Plaintiff's foot condition impairs his ability to play basketball, walk uphill, exercise and withstand cold temperatures for extended periods of time. Id. at 5, 11, 14, 24.

 Between 1981 and 1983, plaintiff was incarcerated in Auburn Correctional Facility ("Auburn") where he sought further treatment for his feet. Williams Dep. at 5-6. To remedy his pain, the medical staff at Auburn issued plaintiff three to four pairs of foam rubber "Dr. Scholl's" type arch supports. Id. at 9-10. Plaintiff found these inserts unsatisfactory because they provided only temporary relief. Id. at 12-13.

 From 1983 to April 1988, plaintiff was incarcerated at Easton Correctional Facility ("Easton"). At Easton, plaintiff was treated by a staff physician who issued plaintiff a pair of soft-foam orthotic shoe inserts to be worn inside special soft-soled boots. Williams Dep. at 6, 14-15. In addition, plaintiff was provided with a backboard for his bed designed to alleviate his back pain by relieving back and hip pressure. Id. at 14. Plaintiff concedes that the backboard "relieved some of the pain," Compl. at 4, but alleges that these orthotics "didn't work." Williams Dep. at 12. Plaintiff was also granted an exception to Easton dress regulations, permitting him to wear sneakers at his job in the print shop to accommodate his foot problem. Id. at 14. Easton's policy of allowing plaintiff to wear sneakers instead of boots while working in the print shop also helped alleviate his discomfort. Id.

 From April 1988 to November 1989, plaintiff was incarcerated at Great Meadows Correctional Facility ("Great Meadows"). Williams Dep. at 8. At Great Meadows, a staff physician issued plaintiff another pair of orthotics. Id. at 12. After these orthotics had worn out, in May 1988 the treating physician provided plaintiff with a new pair of leather and metal bilateral orthotics to wear with special boots. Id. at 11-12. These orthotics were manufactured and fitted by a company named Orthotics Systems, Inc. located in Glens Falls, New York. Id. at 18-20. When plaintiff used these orthotics, his foot "problem disappeared." Id. at 6, 15, 17-18.

 By about December 1989, plaintiff had worn out these orthotics. Plaintiff's Letter dated February 26, 1991. Great Meadows physicians then referred plaintiff to a hospital for examination of his feet. Williams Dep. at 41. During this visit, the examining physician indicated that surgery could remedy his pain. Id. However, after discussing the possibility of surgery with the physician, plaintiff refused to undergo the procedure on the basis that he "was still kind of young" and that he did not want to suffer any resulting loss of mobility. Id.

 Thereafter, in late 1989 plaintiff was transferred to Sing Sing where he began to experience pain again. Williams Dep. at 8, 18, 20. Plaintiff was seen by a Sing Sing nurse, who referred him to a Sing Sing physician, who referred plaintiff to Sing Sing podiatrist Dr. Shapiro. Id. at 21. On April 2, 1990, Dr. Shapiro treated plaintiff's foot pain with a customized shoe insert constructed by augmenting a leather and cushion orthotic with adhesive cotton padding supporting the arch. Id. at 21-25. On May 21 and 22, June 7 and July 2, 1990, plaintiff complained that the orthotics were not satisfactory. Id. at 23. Plaintiff alleges that in September and again in November 1990, Dr. Shapiro examined plaintiff and ordered special orthotics which plaintiff never received. Id. Plaintiff learned that those orders were not filled because the previous vender, EM Orthotics, had ceased supplying Sing Sing, which was seeking to find a replacement vendor. Plaintiff's Memorandum of Law filed January 6, 1992 (unpaginated) ("Pltff. Mem.") at 7. Thereafter, Dr. Shapiro treated plaintiff on May 13, 1991 and again on June 17, 1991. Williams Dep. at 26.

 On September 13, 1990, Williams sent a letter to the Chief Administrator for Medical Services at Sing Sing, copied to defendant Keane, detailing his foot problems and his inability to secure orthotics from EM Orthotics. Pltff. Mem. at 7. Plaintiff requested transfer to Great Meadows, the only facility which provided complete treatment for his foot problem. Id. By letter dated October 3, 1990, a DOCS official responded that an appointment was being scheduled to fit Williams with custom orthotics. Id. at 8.

 On October 11, 1990, Williams filed an Inmate Grievance Complaint alleging that the Sing Sing medical staff had failed to treat his symptoms. Plaintiff requested immediate treatment, or in the alternative, transfer to Great Meadow. Pltff. Mem. at 9.

 On January 10, 1991, Superintendent Keane resolved the grievance, noting plaintiff had failed to appear for the shoe fitting scheduled for October 30, 1990, and rescheduling the fitting. *fn1" Pltff. Mem. at 11. Thereafter, plaintiff was measured on November 9 and December 7, 1990 by Sing Sing orthopedist Dr. S. Sarnochie and issued orthopedic shoes on December 7, 1990. Id.; Williams Dep. at 28. On February 6, 1991, plaintiff returned to Dr. Sarnochie to receive inserts for the shoes. Williams Dep. at 29. At that time, plaintiff complained that the shoes and the inserts were a size too large. Id. Dr. Sarnochie took back the shoes and inserts which did not fit. Id.

 On January 31, 1991, Williams filed a second Inmate Grievance Complaint alleging that he had been issued a pair of boots which were too large and lacked the support or corrective features of his previous pair of boots. Pltff. Mem. at 12. Plaintiff sought the immediate issuance of medically prescribed boots with arch supports. Id. Thereafter, on February 20, 1991, Superintendent Keane resolved the second grievance, noting that plaintiff's February 6, 1991 appointment had been unsuccessful because ...

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