by various specialists as his condition dictated. This evidence shows
neither a deprivation "sufficiently serious" to create a "condition of
urgency" that might "produce death, degeneration, or extreme pain,"
Hathaway, 99 F.3d at 553, nor a "sufficiently culpable state of mind" on
the part of Dr. Laskowski. Hemmings v. Gorczyk 134 F.3d 104,
108 (2d Cir. 1998). Rather, all they show is plaintiff's subjective
dissatisfaction with Dr. Laskowski's treatment of him.
It is well-established, however, that mere disagreement over the proper
treatment does not create a constitutional claim, and that negligence
alone, even if it constitutes medical malpractice, does not give rise to
an Eighth Amendment violation. Parkinson v. Goord, 116 F. Supp.2d 390,
396 (W.D.N.Y. 2000); accord Rosales v. Coughlin, 10 F. Supp.2d 261, 264
(W.D.N.Y. 1998). Only if the malpractice rises to the level of "criminal
recklessness" will the defendant be found liable. Hemmings v. Gorczyk,
134 F.3d 104, 108 (2d Cir. 1998). Plaintiff's allegations do not give
rise to any issue of fact in this regard.
VIII. Claims Against Goord and Kelly
Plaintiff has alleged that defendant Glenn Goord, the Commissioner of
DOCS, and defendant Walter Kelly, who was the Superintendent of Attica at
all times relevant to this action, were aware of plaintiff's various
problems that form the subject of his claims against the other
defendants, and that they did nothing to correct those problems.*fn14
The gist of plaintiff's claims against Goord is that "[f]or more than
two years [plaintiff] complained to Commissioner Goord via the mail and
nothing changed. The defendant forward[ed] all [of plaintiff's]
complaints to his subordinates," who took no effective action.
Plaintiff's Aff. ¶ 11.
Plaintiff's claims against Kelly are similar, although he also asserts
a claim against Kelly relating to the spoliation of evidence. Plaintiff
wrote to Kelly on July 16, 1996 to complain that he had been assaulted by
corrections officers on July 10 and 11. In the letter, plaintiff stated,
"I would like both tapes preserved for further litigation," referring to
videotapes of the incidents. Plaintiff's Aff. Ex. N.
The videotapes were not preserved, however. On October 2, 1998, the
Appellate Division ruled that New York State would be precluded from
offering any evidence at the trial of plaintiff's Court of Claims action
in opposition to plaintiff's proof with respect to the incidents that
were the subject of the destroyed videotapes. Livingston v. State,
254 A.D.2d 694, 695 (4th Dep't 1998). As stated, plaintiff prevailed in
that action. He alleges, however, that the destruction of these tapes
hampered his ability to defend himself in the disciplinary proceedings
against him arising out of these incidents, which ultimately led to
plaintiff spending a year in SHU.
These allegations are insufficient to support a claim against Goord or
Kelly, as they fail to show that they were personally involved in the
alleged violations of plaintiff's rights. "It is well settled in this
Circuit that personal involvement of defendants in the alleged
constitutional deprivations is a prerequisite to an award of damages
under § 1983." Johnson v. Newburgh Enlarged
School Dist., 239 F.3d 246,
254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)); see also Gaston v. Coughlin, 249 F.3d 156, 164 (2d. Cir. 2001).
The personal involvement of a supervisory defendant may be shown by
evidence that: (1) the defendant participated directly in the alleged
constitutional violation; (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong; (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom; (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing to
act on information indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.
Even assuming that Goord and Kelly received plaintiff's letters, yet
took no action, plaintiff has still not established their personal
involvement in the alleged constitutional deprivations. "Generally, the
allegation that a supervisory official ignored a prisoner's letter
protesting unconstitutional conduct is not itself sufficient to allege the
personal involvement of the official so as to create liability under
§ 1983." Pritchett v. Artuz, No. 99 Civ. 3957, 2000 WL 4157, *6
(S.D.N.Y. Jan. 3, 2000) (quoting Gayle v. Lucas, No. 97 Civ. 883, 1998 WL
148416, *4 (S.D.N.Y. Mar. 30, 1998)); see Richardson v. Coughlin,
101 F. Supp.2d 127 (W.D.N.Y. 2000) ("Even assuming that [prison
superintendent] received plaintiff's letter, yet took no action,
plaintiff has still not established [superintendent's] personal
involvement in the alleged constitutional deprivation"); Thomas v.
Coombe, No. 95 Civ. 10342, 1998 WL 391143, *6 (S.D.N.Y. July 13, 1998)
(even assuming that plaintiff wrote letters complaining of a denial of
medical care to supervisory defendants, "the fact that an official
ignored a letter alleging unconstitutional conduct is not enough to
establish personal involvement"); Woods v. Goord, No. 97 Civ. 5143, 1998
WL 740782, *6 (S.D.N.Y. Oct. 23, 1998) (receiving letters or complaints
does not automatically make a supervisor liable for the denial of medical
It is also clear that a supervisory official's forwarding of inmate's
letters to his subordinates will not suffice to establish the official's
personal involvement in the alleged constitutional deprivation. The Second
Circuit addressed a similar situation in Sealey v. Giltner, 116 F.3d 47,
51 (2d Cir. 1997):
Sealey wrote two letters to Coughlin [a former DOCS
commissioner]. Coughlin referred the first letter,
Sealey's appeal from [his] administrative segregation
hearing, to defendant Selsky [the acting director of
special housing/inmate discipline] for decision.
Sealey's second letter was a status inquiry to which
Coughlin responded by informing Sealy that Selsky had
rendered a decision. Sealey's letters and Coughlin's
response do not demonstrate the requisite personal
involvement on Coughlin's part, and we affirm the
dismissal of Sealey's claims against Coughlin.
Following Sealey, this Court has recognized that where a commissioner's
involvement in a prisoner's complaint is limited to forwarding of
prisoner correspondence to appropriate staff, the commissioner has
insufficient personal involvement to sustain a § 1983 cause of
action. See Garvin v. Goord, 212 F. Supp.2d 123, 126 (W.D.N.Y. 2002);
Edmonson v. Coughlin, 21 F. Supp.2d 242, 255 (W.D.N.Y. 1998). Because
plaintiff has failed to present evidence of Goord's and Kelly's personal
involvement in the alleged violations of