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United States District Court, Southern District of New York

March 28, 2003


The opinion of the court was delivered by: Theodore H. Katz, United States Magistrate Judge.

Pro Se

In this prisoner's civil rights action, Plaintiff William Pabon, proceeding pro se*fn1 claims that his constitutional rights under the Eighth Amendment were violated by Defendants' deliberate indifference with respect to his serious medical needs. He also asserts state law negligence claims. The parties consented to trial before this Court, pursuant to 28 U.S.C. § 636 (c), and were given an opportunity to conduct pretrial discovery. Defendants Glenn Goord, Dr. Norman Selwin, Lawrence Zwillinger, Dr. Charles Bendheim, Christopher Artuz, Dr. Carl J. Koenigsmann, Donald Stevens, Dr. Han Chakravorty, and Dr. John J. Cunningham, Jr. (collectively referred to as "the State Defendants"); Westchester County Medical Center ("WCMC"); Dr. Craig Goldberg; Dr. Kraig Moore; Correctional Physicians Services, Inc. ("CRS"); and Dr. Harold Pikus, now move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants' motions for summary judgment are granted and this action is dismissed with prejudice.


Plaintiff is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). He is currently serving a sentence of fifty years to life at Green Haven Correctional Facility ("Green Haven"). Plaintiff claims that during his incarceration at Green Haven, Defendants have been deliberately indifferent in providing care and treatment for a lesion on the base of his skull, as well as for his spinal and right elbow conditions.

Plaintiff has been incarcerated for over a decade. During that time he has required medical attention for many different conditions, some mundane and others serious. He has received medical attention from numerous healthcare providers, both within Green Haven and at hospitals and clinics. Indeed, just the portions of Plaintiff's medical records which are before the Court consume hundreds of pages, and in the three-year period most relevant to this action Plaintiff had close to 200 specialty consults at non-correctional facilities. During most of the period relevant to this action, 1997 to 2000, Plaintiff's primary care providers at Green Haven were, at different times, Dr. Joel Bendheim and Dr. Han Chakravorty. In addition to providing direct care, Drs. Bendheim and Chakravorty wrote recommendations for specialty care and consultations where required. Beginning on June 1, 1998, pursuant to a contract with DOCS, CPS assumed responsibility for providing specialty consultative services to Green Haven inmates. Most of the specialists who treated Plaintiff, including Drs. Moore and Goldberg, were employed by Westchester County Medical Center.

As discussed in detail below, Plaintiff was seen many times by specialists, and received extensive care for his cranial, cervical, and elbow conditions. Nevertheless, he contends that Defendants treated him with deliberate indifference in a variety of ways, most significantly by delaying specialty consults and necessary surgery. Defendants have moved for summary judgment, contending that Plaintiff's cranial lesion and cervical spine and elbow conditions were not sufficiently serious to give rise to an Eighth Amendment claim, and that no Defendant treated Plaintiff with deliberate indifference with respect to any of his medical complaints. Dr. Pikus also contends that he was in no way involved in Plaintiff's treatment and is therefore not a proper party to this action. In addition, the non-physician Defendants contend that they are not proper parties to this action because they too did not provide Plaintiff with medical care. Finally, the State Defendants contend that they are entitled to qualified immunity with respect to Plaintiff's claims.


I. Summary Judgment Standard

Under Rule 56(c), Fed.R. Civ. P., a motion for summary judgment may not be granted unless the Court determines that there is no genuine issue of material fact to be tried, and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53 (1986); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). The moving party must show that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2553-54; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000)

In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986); Sologub, 202 F.3d at 178.

On a motion for summary judgment, a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975); see also Flaherty v. Lang, 199 F.3d 607, 615 (2d Cir. 1999); Cronin, 46 F.3d at 203. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Cronin, 46 F.3d at 203. However, "summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir. 1998) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. at 2552) (internal citations omitted). "[I]n order to defeat summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor," and "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (internal quotations omitted)

II. Eighth Amendment Standard

In order to establish a violation of the Eighth Amendment due to inadequate medical care, a prisoner must prove "deliberate indifference" to a "serious medical need." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1994); see also Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

The deliberate indifference standard contains both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991); see also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Factors that are relevant in determining whether a serious medical condition exists include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)); see also Harrison, 219 F.3d at 137. Trivial or insignificant conditions do not fall within the scope of Eighth Amendment protection. Rather, the Eighth Amendment "contemplates a condition of urgency that may result in degeneration or extreme pain." Chance, 143 F.3d at 702 (internal quotation marks omitted) See also Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) ("a serious medical need exists when the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain") (internal quotation marks omitted).

Second, the charged official must act with a sufficiently culpable state of mind. See Wilson, 501 U.S. at 298-99, 111 S.Ct. at 2324; Hathaway, 37 F.3d at 66. Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. See Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1978 (1994); Hathaway, 37 F.3d at 66. The necessary state of mind has been likened to one of criminal recklessness. See Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998); Hathaway v. Coughlin, 99 F.3d 550, 554 (2d Cir. 1996). A prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; see also Cuoco, 222 P.3d at 106; Hathaway, 37 F.3d at 66.

A difference of opinion between a prisoner and medical personnel regarding medical treatment does not constitute deliberate indifference. See Chance, 143 F.3d at 703. Nor can deliberate indifference be demonstrated simply because an inmate prefers an alternative treatment, or feels that he did not get the level of medical attention he desired. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).

Finally, simple negligence, or an inadvertent failure to provide adequate medical care, even if it amounts to medical malpractice, is insufficient to establish deliberate indifference, or any other constitutional deprivation. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670 (1986) (although negligence of prison official led to prisoner's serious injury, Constitution requires no procedure to compensate injury arising from negligence); Chance, 143 F.3d at 703; Hathaway, 37 F.3d at 66; cf. Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991) (more than simple negligence required for pretrial detainee to allege constitutional deprivation under Fourteenth Amendment due process clause)

III. Plaintiff's Claims

A Clival Lesion

1. Seriousness of Condition

Plaintiff claims that various Defendants were deliberately indifferent to his complaints regarding his clival lesion.*fn2 Plaintiff claims that from July 1994 until the present he has been experiencing "excruciating headaches," which he attributes to a lesion at the base of his skull, or clivus. The lesion appears to have first been noted in 1995, after Plaintiff received a CT scan to his skull. See Pl.'s Ex. 12. Plaintiff claims that thereafter, his healthcare providers have been negligent in monitoring the lesion's growth and have failed to treat it appropriately. See Am. Complaint ¶ 48. Although not raised in his Complaint, Plaintiff further contends, in his response to Defendants' motions, that in 1999 he was diagnosed with a second brain tumor, which Defendants have failed totally to monitor and treat.

Despite the superficially serious implications of a claim of a tumor near the brain, the extensive, undisputed medical evidence submitted by Defendants demonstrates that Plaintiff's lesion is benign and harmless.

Plaintiff was referred to the Department of Neurosurgery at WCMC, and in June 1998 Plaintiff was evaluated by Dr. Goldberg, a senior resident in the neurology department, and Dr. F. Myles Little, an attending physician. See Ex. D to Affirmation of Jonathan A. Bath, Esq., dated September 13, 2002 ("Bath Aff.") at 176; Deposition of William Pabon ("Pabon Dep.") at 210-11. The doctors reviewed the results of Plaintiff's MRIs, the most recent of which was taken on December 12, 1997, which revealed a lesion of the clivus that appeared unchanged over the course of time. See Bath Aff. at 173. Dr. goldberg ordered another MRI of Plaintiff's brain, see Rule 56.1 Statement of CPS ("CPS 56.1 St.") ¶ 7; Ex. D to Bath Aff. at 761, and on October 25, 1998, Dr. Goldberg ordered a CT scan of Plaintiff's head, which demonstrated "no interval change in clival lytic lesion with well defined sclerotic borders without associated soft tissue mass. The appearance is suggestive of a benign lesion, possibly epidermal." Ex. D to Bath Aff. at 173.

Plaintiff was evaluated again at WCMC on February 19, 1999, by a neurosurgeon, Dr. Moore, to follow up on Plaintiff's continuing complaints. Plaintiff was given another MRI and CT scan, both of which indicated, according to Dr. Moore, a clival lesion consistent with epidermoid cyst. See Ex. D to Bath Aff. at 103. Dr. Moore noted no increase in size over successive MRIs or CT scans, no parenchymal abnormalities, no hydracephalus, and no involvement of the pons. See id. Dr. Moore also gave Plaintiff a complete physical exam, which indicated that the pertinent cranial nerves were intact and that Plaintiff did not demonstrate any motor deficits or asymmetrical reflexes. See id.

Plaintiff was later referred by Dr. Chakravorty to see Dr. Moore again. Dr. Moore examined Plaintiff on May 28, 1999, and concluded that Plaintiff had a small cystic lesion in the clivus with no breach of the posterior cortex of the clivus and no encroachment upon the neural structures. See Ex. F to Affirmation of Michael T. Loffrede, Esq., dated July 19, 2002 ("Loffredo Aff."). Dr. Moore found that there was no need for surgery to treat the lesion, but forwarded Plaintiff's records to Dr. Pikus, the attending neurosurgeon at WCMC's neurosurgery clinic, for review. After reviewing Plaintiff's records, Dr. Pikus wrote Dr. Chakravorty on July 12, 1999, corroborating Dr. Moore's findings, and indicating that he observed no condition requiring surgical intervention. See Ex. F. to Loffredo Aff.; Affirmation of Dr. Harold Pikus ("Pikus Aff."), appended to Loffredo Aff., ¶¶ 7-8.

Dr. Neil S. Lava, a professor of neurology at Albany Medical College and a specialist in neurology, reviewed Plaintiff's medical records relating to the clival lesion. See Lava Aff. ¶ 3*fn3 According to Dr. Lava, the records, including films of MRIs and CT scans performed on Plaintiff, indicate that he has a clival lesion which has remained the same size and has not changed over time. Dr. Lava concluded that nothing in the records indicated any neurological abnormality. Id. ¶ 12. Dr. Lava opined that, although Plaintiff has a lesion of the clivus, it has not broken through the bone and is in no way compressing the brain stem or any other part of the brain or spinal cord. Id. ¶ 15. He further found that the lesion could not cause a neurological deficit, and that Plaintiff's lesion "is benign and definitely not compromising his nervous system." Id. ¶ 16.

The Court does not question Plaintiff's contention that he has experienced severe headaches, or that a condition leading to such severe pain would be one that "a reasonable doctor or patient would find important and worthy of comment or treatment." Chance, 143 F.3d at 702. Moreover, it is entirely reasonable for a layperson such as Plaintiff to be anxious about a growth in his skull. However, apart from Plaintiff's conclusory assertions to the contrary, there is nothing in the record to suggest that Plaintiff's clival lesion is responsible for the symptoms of which he complains, or is in any way threatening to his health. To the contrary, the evidence indicates that the lesion was most likely an incidental finding and not the cause of Plaintiff's symptoms. See Affidavit of Dr. Carl J. Koenigsmann ("Koenisgsmann Aff."), appended to State Defendants' Notice to Pro Se Plaintiff Pursuant to Local Rule 56.1 ("State 56.1 Notice") ¶ 24. The lesion is attached to the base of Plaintiff's skull, has not grown or changed shape, and is not impinging on Plaintiff's neural structures. Plaintiff's physicians have therefore determined that it could not be responsible for his headaches. In addition, there is no evidence that the lesion is capable of causing death or degeneration, or that it has interfered with Plaintiff's daily activities — he has continued to work as a clerk at Green Haven at all relevant times. Id. ¶ 31. Cf. Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (scar that interfered with daily activities was serious condition); Hathaway, 37 F.3d at 67 (hip condition that prevented plaintiff from walking was a serious condition)

In short, the undisputed evidence indicates that Plaintiff's clival lesion is benign in all respects. Thus, while it clearly merited medical attention to diagnose it, the lesion did not turn out to be a "serious" condition.*fn4

2. Defendants' Culpability

Even if Plaintiff's lesion were viewed as a "serious" medical condition, Plaintiff has failed to establish that any of his healthcare providers were negligent in his care, let alone that they displayed deliberate indifference to his condition.

Plaintiff claims that Defendants were deliberately indifferent to the care and treatment of his tumor by constantly denying and delaying specialty consults, in a "systematic scheme so as to avoid . . . providing treatment," Pl.'s Resp. at 6, in order to avoid the costs of treatment. As a result, he claims that he suffered unnecessary pain. See id. at 6. The Court has carefully reviewed the medical evidence in the record in order to determine whether there is any support for Plaintiff's contention. It is clear from the record that the contrary is true. Plaintiff's lesion received extensive medical attention. Between the time he first complained of headaches, in 1994, until the time he filed the Amended Complaint, Plaintiff received four consultations with neurologists and five consultations with neurosurgeons, in order to diagnose the clival lesion. See Koenigsmann Aff. ¶ 25. Throughout the course of these consultations, seven CT scans to Plaintiff's brain and skull, and eight MRIs of his brain were taken. See id. At each visit with a neurologist or neurosurgeon, Plaintiff's physicians followed the progress of the lesion, and each one found it to be benign and stable. No doctor found that surgery, or any other treatment, was appropriate. This conclusion has been supported by Defendants' experts.

Nor has Plaintiff established that any healthcare providers were indifferent to his pain. Throughout the time that he complained of headaches, he was administered analgesics, nonsteroidal anti-inflammatory drugs, and antidepressants. He also received physical therapy. See Affidavit of Dr. Arvind K. Wadhwa ("Wadhwa Aff."), Ex. A to Bath Aff., ¶ 17; Affidavit of Dr. Neil S. Lava ("Lava Aff."), Lx. A2 to State 56.1 Notice, ¶ 6. Defendants expert witness has indicated that such conservative measures were the only appropriate course of action in this case, as the clival lesion was not found to be the source of Plaintiff's pain or headaches, and surgical procedures involving the brain entail a considerable amount of risk. See Lava Aff. ¶ 19.

Plaintiff also claims that he was denied certain consultations with medical specialists to treat his complaints. The Court notes initially that, between June 1, 1998 and December 31. 2001, 171 outside specialty consultations were requested either by Plaintiff directly or on his behalf, only nine of which were denied. See CRS 56.1 St. ¶ 18; see also Koenigsmann Aff. ¶ 27 (between February 1998 and July 2002, Plaintiff was evaluated by medical specialists on more than 190 occasions). of these nine, three were relevant to the treatment of Plaintiff's clival lesion. On July 21, 1998, Plaintiff was denied a request for a neurosurgical consultation because it was a duplicate referral; a request for a neurosurgical consultation had already been approved on June 24, 1998, and Plaintiff had a consultation with Dr. Goldberg on August 14, 1998. See Wadhwa Aff. ¶ 8; Ex. D. to Bath Aff. at 176. On April 19, 1999, Plaintiff was denied a referral for a pain therapy program. Dr. Wadhwa, who is not a Defendant in this action, denied the request because Plaintiff was scheduled to be seen for a neurosurgical evaluation, and Dr. Wadhwa determined that Plaintiff should receive this evaluation before starting the program. See Wadhwa Aff. ¶ 14. Plaintiff had a consultation with Dr. Moore on May 28, 1999. Id. After Dr. Moore concluded that Plaintiff did not require surgery, he forwarded Plaintiff's records to Dr. Pikus, who agreed, but recommended that "in the interim, it would certainly be helpful for him to proceed with other avenues of pain control." Ex. D. to Bath Aff. at 114; Wadhwa Aff. ¶ 16.

Dr. Wadhwa again refused Plaintiff's request for pain clinic therapy on August 19, 1999. Dr. Wadhwa based this denial on Dr. Pikus's recommendation that Plaintiff undergo "other avenues of pain control." Dr. Wadhwa determined that a more conservative therapy, consisting of analgesics, nonsteroidal anti-inflammatory drugs, and antidepressant therapy would be more effective to treat Plaintiff's pain. See Wadhwa Aff. ¶ 17. Based on his medical judgment, Dr. Wadhwa concluded that Plaintiff's complaints of widespread body pain, as opposed to pain in a single identifiable area, could not be effectively treated in the pain clinic, which relied on targeted epidermal injections.*fn5 See id. Ex. D. to Bath Aff. at 110.

Finally, on December 24, 1999, Plaintiff's request for an MRI of the brain was denied in favor of deferring further radiographic studies until Plaintiff had a neurosurgical consultation, which was scheduled for January 14, 2000. See Wadhwa Aff. ¶ 22; Ex. D. to Bath Aff. at 66-67. An MRI had been taken on August 23, 1999, and as recently as December 1, 1999, a CT scan had been performed. See Ex. D to Bath Aff. at 69, 71.

Determinations of medical providers concerning the care and safety of patients are given a "presumption of correctness." Perez v. The County of Westchester, 83 F. Supp.2d 435, 440 (S.D.N.Y. 2000) (citing Kulak v. City of New York, 88 F.3d 63, 77 (2d Cir. 1996)). The few denials of Plaintiff's requests were made by Dr. Wadhwa in the legitimate exercise of his medical judgment. Plaintiff has not submitted any competent evidence to suggest an untoward motive for the denials, and there is no evidence of a knowing disregard of a serious risk to Plaintiff's health. Dr. Wadhwa's decisions, made in the' context of an overall appropriate course of treatment, did not subject Plaintiff to any serious risk of harm or cause any deterioration in his condition. See Smith, 316 F.3d at 186 (where claim is for particular shortcomings in otherwise appropriate course of treatment, courts look to severity of effect of alleged deprivation)

For the same reason, Plaintiff's allegations that various unidentified Defendants failed on occasion to properly forward his medical records and MRI and CT scans to outside consultants, see Am. Complaint ¶¶ 29, 31-33, 43, 49, 52, 53, 59; Pl.'s Ex. 53, do not establish deliberate indifference. Although the Court does not condone these lapses, it is apparent that they had no impact on Plaintiff's treatment or well-being. When his MRIs and CT scans were fully evaluated, it was determined that Plaintiff's lesion was benign and was not the cause of the symptoms of which he complained.

Three medical experts who have reviewed Plaintiff's treatment records have concluded that the treatment of Plaintiff's lesion was appropriate and timely. Indeed, the experts conclude that Plaintiff's care was of a high quality. See Lava Aff. ¶ 20; Affidavit of Dr. George V. DiGiacinto ("DiGiacinto Aff."), appended to Affirmation of Joel A. Hirschfield, Esq., dated July 26, 2002 ("Hirschfield Aff."), ¶¶ 11-13; Affidavit of Dr. Edward Haberman ("Haberman Aff."), Ex. F to Bath Aff., ¶¶ 3-5. There is nothing in the record to contradict this conclusion, and Plaintiff has not come close to demonstrating deliberate indifference on the part of any Defendants in this case with respect to the treatment of the clival lesion.

Because no reasonable fact finder could conclude that Defendants were deliberately indifferent in the treatment of Plaintiff's clival lesion, Defendants are entitled to summary judgment on this claim.

B. Cervical Spine Problem

Plaintiff claims that he was treated with deliberate indifference with respect to the care he received for his spinal condition. The gravamen of Plaintiff's complaint with respect to this condition is that Defendants, at times individually, at other times in concert, intentionally delayed his cervical spine operation, were unprofessional in his care, and denied him adequate treatment for his pain.

The record before the Court contains a lengthy, complex, and somewhat disorganized history of the treatment Plaintiff received for his spinal condition during the period from 1996 to 2000.

In response to his complaints of headaches, neck pain, and elbow pain, Plaintiff was referred in 1996 to an outside consulting orthopedic surgeon, Dr. John Galeno. Dr. Galeno examined Plaintiff's MRI, which was taken on April 4, 1996. It revealed bulging discs with ridging osteophytes at multiple levels. See Pl.'s Ex. 1. Dr. Galeno reviewed another MRI of Plaintiff's spine on July 17, 1996, and recommended that Plaintiff undergo cervical spine surgery. See Pl.'s Ex. 3. Dr. Galeno asked to see Plaintiff one month later to finalize the surgical plan. See Pl.'s Ex. 4. Plaintiff was seen by Dr. Galeno on August 21, 1996, and he requested that surgery be scheduled. Id.

The history of what followed is confusing, with Plaintiff appearing at times to be seeking immediate surgery, and at other times expressing reluctance to undergo the operation without a second opinion. See Pl.'s Exs. 4-7, 11. For example, on August 22, 1996, Plaintiff's primary care provider, Dr. Bendheim, requested that Plaintiff be scheduled for cervical disc excision and fusion surgery, as per Dr. Galeno's recommendation. See Pl.'s Ex. 9. However, notes from December 1996 indicate that Plaintiff wanted a second opinion from a neurosurgeon. See Pl.'s Ex. 10.*fn6 During this period, Plaintiff was receiving analgesic pain medication and physical therapy.

Throughout the fall of 1996 and winter of 1997, Plaintiff was also experiencing elbow pain, and he was scheduled for surgery to remove bone chips from his elbow. He also had cardiology problems, and hepatitis, and attention was focused on the clival lesion in his skull. See Pl.'s Ex. 8. In the spring of 1997, a neurosurgical consult was still being requested by facility staff. A notation of April 23, 1997, indicates that Plaintiff remained apprehensive about spinal surgery and wanted to see a neurosurgeon for his clival lesion. See Pl.'s Ex. 13.

In May 1997, Plaintiff was seen by a neurologist. The neurologist requested new MRI's and CT scans of Plaintiff's skull and spine, and he also requested that a neurosurgery consult be arranged for further evaluation of Plaintiff's clival lesion and disc bulges. Medical staff at Green Haven made the request. See Pl.'s Exs. 13, 14.

In September 1997, Plaintiff was brought to see Dr. Galeno, who ordered an MRI of his cervical spine. Dr. Galeno indicated in a note that Plaintiff was still thinking about back surgery, but that he wanted to wait until he had surgery for his brain tumor. See Pl.'s Exs. 25, of November 7, 1997, the medical records indicate that Plaintiff was still apprehensive about undergoing cervical spine surgery, and Plaintiff's primary care providers continued to try to schedule a neurosurgical evaluation to address the cervical spine and brain lesion issues. See Pl.'s Ex. 28. On December 12, 1997, another MRI of his spine was taken, which noted disc herniation/protrusion at C3-4, C4-5, and possibly C5-6. The scan showed no extrusion of disc material, no evidence of cord compression, minimal effacement of the ventral subarachnoid space at the C3-4 and C4-5 levels, and no abnormalities of the spinal cord. The radiological report concluded that Plaintiff had multiple small 3 mm central disc protrusions/subligamentis disc herniations at C3-4, C4-5, and possibly C5-6. See Pl.'s Ex. 35.

As of May 1998, Plaintiff had still not seen a neurosurgeon. As a result, in June 1998, Dr. Malvarosa, another primary care provider at Green Haven, wrote another consult request for a neurosurgeon, noting that Dr. Galeno had recommended cervical surgery. The referral form indicated that Plaintiff wished to be scheduled for a second opinion. See Pl.'s Ex. 41.

Plaintiff did see a neurosurgeon, Dr. Goldberg, in August 1998. He recommended that an MRI of Plaintiff's brain and spine be taken, in addition to a CT scan of Plaintiff's head. See Ex. D to Bath Aff. at 176. The MRI, conducted on September 9, 1998, suggested that Plaintiff was suffering from degenerative disc disease with straightenlng of the cervical curvature. The MRI showed disc bulges at C4-C5 and C6-C7, and narrowing of the left foramen at C4-C5, C5-C6, and C6-C7, but no disc herniations, spinal stenosis, or cord lesion. See Ex. D to Bath Aff. at 78.

Dr. Malvarosa wrote another neurosurgical referral for Plaintiff on September 26, 1998. However, Plaintiff's consultation could not be conducted as planned, because, as one of the neurosurgeon residents noted, Plaintiff's previous MRI scans had not been forwarded for the consultation. See Pl.'s Ex. 46. In a letter dated January 28, 1999, Defendant Zwillinger acknowledged that Plaintiff's MRIs had not been sent along with Plaintiff to his neurological consultation because security officers had neglected to bring the films. See Pl.'s Ex. 50. Plaintiff was rescheduled for another neurological consultation on January 15, 1999, but an ice storm led to its cancellation. Id.

Plaintiff was finally evaluated on February 19, 1999 by Dr. Moore, a neurosurgical resident at WCMC. After taking another MRI of the cervical spine, Dr. Moore determined that Plaintiff exhibited disc bulging at C4-5, with no significant compromise to the canal or nerve root compression. He also found degenerative changes with no cord involvement. See Ex. D to Bath Aff. at 103. Dr. Moore concluded that surgery was not indicated for Plaintiff's spine and he suggested that conservative therapy for Plaintiff's spinal problems be continued. See id.

Dr. Moore then "forwarded Plaintiff's medical records, including his MRIs, to Dr. Pikus, the attending neurosurgeon at New York Medical College, for his opinion regarding Plaintiff's spinal condition. After reviewing the films, Dr. Pikus concluded that the cervical spine MRI was within normal limits, and he agreed that no surgical intervention was required. He recommended that other avenues of pain control be pursued. See Pikus Letter to Dr. Chakravorty, Ex. F to Loffredo Aff. ¶ 4.

On May 28, 1999, Plaintiff was again seen by Dr. Moore, the neurosurgeon. The focus of attention at this visit was on the clival lesion. See Pl.'s Ex. 75. Plaintiff was seen by Dr. Galeno in October 1999, at which time attention was focused on his elbow and the need for the ulnar nerve transposition. See Pl.'s Exs. 75, 76. Plaintiff was seen again by Dr. Galeno on February 11, 2000 to schedule an elbow operation, at which time Dr. Galeno also requested a CT myelogram to further assess Plaintiff's continuing neck complaints. A CT myelogram was performed on March 16, 2000, the results of which were stated as follows: "cervical myelogram demonstrates no evidence of disc herniation or spinal stenosis. Posterior end plate osteophytic ridging at C4-C5 and C6-C7 does indent upon the ventral aspect of the thecal sac greatest at C6-C7 on the left and this could possibly irritate intra thecal segment of the nerve rootlets." Ex. D to Bath Aff. at 31-33. After reviewing the myelogram, on April 18, 2002, Dr. Galeno renewed his recommendation for spinal surgery. See Wadhwa Aff. ¶ 10. The record does not indicate the basis for his decision. Before approving the surgery, Dr. Chakravorty ordered a cardiology evaluation, because Plaintiff had complained of chest pains in the past. See Koenigsmann Aff. ¶ 10. As a result, Plaintiff had multiple consultations with a cardiologist and underwent stress testing, echocardiograms, and pulmonary function testing. See id. ¶ 10.

On November 18, 2000, Dr. Galeno performed a bilateral laminectomy with bilateral foraminotomies and nerve root decompression. See Ex. G to Loffredo Aff. During the surgery, Dr. Galeno observed that the spinal cord appeared to be "quite compressed in the region of C5-C6, with a severe spinal stenosis." Ex. G to Loffredo Aff. Dr. Galeno performed a second cervical laminectomy and nerve root decompression with bilateral foraminotomies, as well as cervical fusion, on August 14, 2001. Id.

1. Seriousness of Condition

Defendants contend that Plaintiff's spinal condition was neither unusual nor an emergency, and that Plaintiff's pain was not disabling. They thus argue that this condition was not sufficiently serious to give rise to an Eighth Amendment violation. See State Defs.' Memorandum of Law at 8-10. The Court disagrees. In view of the fact that Plaintiff experienced headaches and neck pain over a period of four years, that he had spinal stenosis, and that cervical spine surgery was recommended and ultimately performed, the condition is one "that a reasonable doctor or patient would find important and worthy of comment or treatment." Chance, 143 F.3d at 702. Pain need not be extreme or disabling in order to implicate the Eighth Amendment. See Brock, 315 F.3d at 163 ("We will no more tolerate prison officials' deliberate indifference to the chronic pain of an inmate than we would a sentence that required the inmate to submit to such pain. We do not, therefore, require an inmate to demonstrate that he or she experiences pain that is at the limit of human ability to bear, nor do we require a showing that his or her condition will degenerate into a life-threatening one."). A reasonable trier of fact could find that Plaintiff's spinal condition does satisfy the first prong of an Eighth Amendment claim.

2. Defendants' Culpability

The real issue presented is whether the evidence is sufficient to allow a reasonable fact finder to conclude that Defendants were deliberately indifferent to Plaintiff's spinal condition and pain. Plaintiff contends that his nearly three-year wait for spine surgery, the repeated delays in seeing specialists, and the pain he endured during that time, demonstrate that Defendants were deliberately indifferent to his serious medical needs. After careful review of the record, with little assistance from Defendants, and construing all disputed facts in Plaintiff's favor, the Court concludes that the evidence cannot support a finding of deliberate indifference.

The history recited above makes it apparent that Plaintiff's condition was not ignored. In addition to the many MRIs, CT scans, and specialty consults that he received, Plaintiff was seen by facility medical staff on numerous occasions and provided pain medication and physical therapy. The Court recognizes, however, that simply being seen by doctors does not necessarily assure reasonable treatment, or eliminate the possibility of recklessness or deliberate indifference. See, e.g., Archer v. Dutcher, 733 F.2d 14, 15 (2d Cir. 1984)

There were occasions on which specialty consultations were ineffective because, for reasons unclear from the record, MRIs and CT scans were not sent with Plaintiff to the consultation. In addition, although he had numerous and timely visits with an orthopedic surgeon and neurologist, as well as many other specialists and doctors, it cannot be disputed that Plaintiff did experience a significant delay in receiving a consultation with a neurosurgeon in order to secure a second opinion regarding the need for spinal surgery. Defendants' own medical notations support this conclusion. The precise reasons for this delay are not at all clear, because other specialist appointments were regularly requested and conducted.*fn7 Moreover, virtually all of the medical providers involved, including the named Defendants, recommended and requested the consult.*fn8 In any event, there is no evidence that the delay was the product of improper motive or intentional disregard for Plaintiff's condition.

More importantly, there is no evidence that these lapses had any significant impact on the actual care that Plaintiff received, or on his course of treatment. As noted above, when a prisoner asserts that delay in his treatment constitutes deliberate indifference on the part of a healthcare provider, the Court looks to the severity of the consequences brought about by the alleged delay. See Smith, 316 F.3d at 186; see also Estelle, 429 U.S. at 106, 97 S.Ct. at 292 ("In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."). While Plaintiff was awaiting a consult with a neurosurgeon, his pain was not ignored. He was seen repeatedly by an orthopedist, a neurologist, a physiatrist, and his primary care physicians. During this period, consistent with the neurologist's recommendations, Plaintiff was receiving medication for his pain, including MS Contin, Surontin, Oxycodone, and Percocet. See Pabon Dep. at 180-81. He also underwent physical therapy for approximately three years.*fn9 Most significantly, when Plaintiff's condition was finally reviewed by the neurosurgeons, they concluded that there was no indication for spine surgery, and that more conservative methods of pain alleviation were appropriate. They therefore did not recommend a course of treatment that was different from what Plaintiff had been receiving. Moreover, as Plaintiff has conceded, no neurologist or neurosurgeon ever advised him that delaying the spine operation would worsen his condition, see Pabon Dep. at 200-01, and there is no evidence that it did.

Thus, contrary to Plaintiff's assertion, he was not improperly denied surgery for three years. The specialists he saw, most notably two neurosurgeons, neither of whom is alleged to have had any improper motive to deny him surgery, did not view Plaintiff as a proper candidate for surgery. Indeed, much of the so-called delay that Plaintiff experienced was the result of his physicians' seeking to minimize the risk of undergoing such a serious operation. Even if these doctors were wrong in their judgment, as Plaintiff appears to contend, their exercise of medical judgment cannot give rise to an Eighth Amendment claim.*fn10 See Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000) ("the mere malpractice of medicine in prison does not amount to an Eighth Amendment violation . . . . This principle may cover a delay in treatment based on a bad diagnosis or erroneous calculation of risks and costs, or a mistaken decision not to treat based on an erroneous view that the condition is benign or trivial or hopeless . . .") (citing Estelle, 429 U.S. at 105-07, 97 S.Ct. at 291-93; Hathaway, 37 F.3d at 77); Sonds v. St. Barnabas Hosp. Correctional Health Services, 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) ("Thus, disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.") (citing Estelle, 429 U.S. 107, 97 S.Ct. at 292-93)

Plaintiff also claims that he was denied certain consultations in connection with his cervical spine condition. As noted, out of over 170 requests for specialty consultations in just a three-year period, approximately nine were denied, and only three of these pertained to Plaintiff's spinal condition. These denials have already been discussed, since they also relate to Plaintiff's clival lesion. Plaintiff was denied a neurosurgical consultation on July 21, 1998 because an identical request had already been granted, and Plaintiff received the consultation on August 14, 1998. See Wadhwa Aff. ¶ 8; CPS 176. Plaintiff's request for a referral to a pain therapy program was denied on April 19, 1999 pending a neurosurgical evaluation. See Wadhwa Aff. ¶ 14. A second request for a referral to a pain therapy clinic was denied because a judgment was made that the therapy provided was not appropriate for Plaintiff's symptoms. Because Plaintiff had non-localized pain, Dr. Wadhwa concluded that it could not effectively be treated by epidural injections, which Plaintiff would have received if admitted to the pain clinic. See Wadhwa Aff. ¶ 17; Ex. D to Bath Aff. at 110. Here again, the small number of referrals that were denied Plaintiff were all supported by the exercise of medical judgment.

Defendants had three medical experts — an orthopedist, a neurologist, and a neurosurgeon — review Plaintiff's medical records as they relate to the conditions in issue. All of the experts have concluded that the treatment of Plaintiff's spinal problems fell well within accepted medical standards. Dr. Neil Lava, Professor of Neurology and Interim Chair at the Department of Neurology at Albany Medical College concluded:

It is my opinion, based upon a reasonable degree of medical certainty, that as far as the plaintiff's cervical spine problem is concerned, the plaintiff has received good, timely and appropriate treatment. It is conceivable that the cervical degenerative changes that were demonstrated could be the cause of plaintiff's neck pain. However, there were never any neurological deficits on examination during multiple examinations by neurologists, neurosurgeons and an orthopedist who gave the plaintiff care and treatment . . . . The appropriate treatment of patients with a cervical spine problem is to operate upon them immediately only when there is any evidence of spinal cord or nerve root compression where the patient would be in danger of having fixed or longstanding deficits. Those problems were not present in plaintiff's case . . . . When, as is the case here, the only manifestation of the changes to the spine was pain, a physician should treat the patient conservatively for as long as possible through pain medication and physical therapy to try to avoid surgery. Only when conservative measures have failed should a physician use surgical intervention since there are certainly risks to this type of aggressive surgery . . . . It is my opinion, based upon a reasonable degree of medical certainty that the plaintiff received good care and timely treatment for his cervical spine . . . problems. He was given the appropriate types of therapy and medication; the surgeries were timely and there was no indifference to his serious medical needs. In fact, I am impressed by the amount of quality medical care that he has received, and the number of physicians who cared for him, including his primary care and medical providers.
Lava Aff. ¶¶ 17-20. Similarly, Dr. George V. DicGiacinto, a boardcertified neurologist, Acting Director of Neurosurgery and Chief of the Neurological Clinics at St. Luke's-Roosevelt Hospital Center, and attending physician in Neurological Surgery at Beth Israel North Hospital, reviewed Plaintiff's records and concluded:

At the time of William Pabon's treatment at Westchester County Medical Center there was no clinical indication that cervical spine surgery was necessary, based upon the examinations performed and the medical history presented . . . . At the time of William Pabon's treatment at [WCMC] there was no indication that William Pabon would have benefitted from any surgical procedures of the cervical spine . . . . There is no indication whatsoever that WCMC, Dr. Craig Goldberg and Dr. Kraig Moore delayed the treatment of William Pabon, in fact, William Pabon received timely and appropriate treatment when he was presented to them with his complaints . . . . At no time did WCMC, Dr. Craig Goldberg and Dr. Kraig Moore depart from reasonably acceptable medical treatment of William Pabon, nor did they depart from reasonable and usual customs as set forth by the New York State medical community in their treatment of William Pabon . . . . WCMC, Dr. Craig Goldberg and Dr. Kraig Moore's conduct in treating William Pabon did not demonstrate unnecessary and wonton infliction of pain or conduct.
DiGiacinto Aff. ¶¶ 9-13. Finally, Dr. Edward Haberman, Professor and University Chairman Emeritus in the Department of Orthopedic Surgery at Albert Einstein College of Medicine, reviewed Plaintiff's medical records and issued a report, in which he concluded:

Although I cannot comment on the timing of all the multiple procedures that Mr. Pabon underwent, it certainly seems from the evaluation of the record that he did receive care for all his extensive complaints and that his evaluation was extremely extensive and covered a variety of areas. There did not seem to be any disregard nor intentional denial or delay for treatment of his multiple conditions requiring such long term and extensive evaluation . . . . my opinion within a reasonable degree of medical certainty is that Mr. Pabon was treated appropriately in accordance with accepted medical practice regarding his cervical spine . . .
See Letter of Dr. Edward T. Habermann, Jan. 10, 2002, Ex. F to Bath Aff.

The manner in which Plaintiff's care was coordinated and overseen was not ideal. However, other than some relatively infrequent lapses in the course of a very lengthy and complex course of treatment for multiple conditions, many of which are not in issue in this litigation, and one significant delay for which there is no evidence of improper motive and which had no serious implications for his care and treatment, Plaintiff has failed to submit any evidence to support the conclusion that Defendants were deliberately indifferent to his spinal condition. His disagreement with the mode of treatment determined by his doctors, and the pace at which it was delivered, does not establish an Eighth Amendment violation. Although an inmate is clearly entitled to adequate medical care, he is not entitled to the "type or scope of medical care which he personally desires." United States ex rel. Hyde v. McGinnis, 429 F.2d 864, 867-68 (2d Cir. 1970). Accordingly, Defendants are entitled to summary judgment with respect to Plaintiff's claim relating to his spinal condition.

C. Elbow Problems

In his Amended Complaint, Plaintiff claims that various healthcare providers treated him with deliberate indifference with respect to surgery required for his right elbow. At the time the Amended Complaint was filed, in January 2000, Plaintiff had not yet received elbow surgery. The surgery was performed in August 2000. In his papers in opposition to Defendants' motions, Plaintiff makes only one passing reference to this issue, thus strongly suggesting that he has chosen not pursue it. Nevertheless, the claim is addressed below.

1. Seriousness of Condition

Some of the Defendants contend that Plaintiff's need for elbow surgery was not "serious" because the source of his pain stemmed from a much earlier injury which surgery was not likely to remedy. See CPS Reply Affirmation at 7. However, neuropathy was evident and Plaintiff's elbow was determined to be the source of some pain. Plaintiff was diagnosed as requiring, and did eventually undergo, an operation — anterior transposition of the ulnar nerve. Accordingly, for purposes of these motions the Court will assume that Plaintiff's elbow complaints were sufficiently serious to satisfy the objective prong of his Eighth Amendment claim.

2. Defendants' Culpability

As with his previous claims, the evidence cannot support the conclusion that Plaintiff's healthcare providers exhibited deliberate indifference with respect to Plaintiff's elbow condition.

Prior to 1998, Plaintiff had undergone four surgeries on his right elbow, primarily to remove bone chips. On November 16, 1998, Plaintiff was seen by Dr. Galeno, an orthopedic specialist. After examining Plaintiff, Dr. Galeno concluded that there was ulna nerve neuropathy in the right elbow, and he recommended physical therapy, consisting of ultrasound and heat. See Pl.'s Ex. 45. After examining Plaintiff on January 11, 1999, Dr. Galeno noted that Plaintiff had been receiving physical therapy and he recommended that it be continued. See Ex. D. to Bath Aff. at 180. After Plaintiff's neurosurgical consults, in February and May 1999, at which it was determined that surgery was not recommended for the clival lesion, Plaintiff was again referred to Dr. Galeno for a reevaluation of the need for ulnar nerve surgery. See Ex. D. to Bath Aff. at 47. Dr. Galeno saw Plaintiff on September 10, 1999, and recommended that Plaintiff undergo ulnar nerve transposition surgery in the right elbow, but that, in light of Plaintiff's history of chest pain, he first receive cardiology clearance. Id. Dr. Galeno prescribed medication for Plaintiff's pain pending the operation. Id.

After reviewing Dr. Galeno's recommendation, CPS's Dr. Wadwha determined that a second opinion by a neurosurgeon concerning the advisability of the operation would be required. See Wadhwa Aff. ¶ 8. To this end, DOCS issued a neurosurgical referral on November 17, 1999 and Plaintiff was seen by Dr. Goldberg on January 14, 2000 to assess the neurosurgical implications of the elbow surgery, and in particular whether it could be complicated by Plaintiff's clival lesion. Dr. Goldberg gave neurosurgical clearance for the operation on January 14, 2000, stating in his report that there was no contraindication to ulnar . . . surgery due to clival lesion." Ex. D. to Bath Aff. at 40. Plaintiff was subsequently seen by Dr. Galeno on February 11, 2000 to schedule the ulnar nerve transposition. Dr. Galeno again requested cardiology clearance. Id. at 43. Plaintiff had a consultation with a cardiologist on May 10, 2000, who recommended a nuclear persantine stress test. Id. at 20. The procedure was performed and "official" cardiac clearance was issued by a Dr. Tartaglian on June 28, 2000. Id. at 16. Plaintiff underwent the ulnar nerve transposition surgery on August 4, 2000. See CPS 56.1 St. ¶ 15; Wadhwa Aff. ¶ 21.

There is no evidence in the record suggesting that Plaintiff's elbow complaints were dealt with improperly, much less with deliberate indifference. Though the need for specialty consults resulted in some delays, the evidence indicates that these were the result of Plaintiff's doctors' concerns about his other medical conditions. There is no evidence that the delay was the function of improper motive. Moreover, following the diagnosis of his elbow condition, Plaintiff received physical therapy and pain medication. Finally, nothing in the record suggests that Plaintiff's elbow condition required emergency care or any immediate surgical intervention. See Haberman Aff. ¶ 4; Wadhwa Aff. ¶ 27.

Plaintiff has failed to proffer any evidence to indicate that he was treated with deliberate indifference with respect to his elbow problems. Accordingly, Defendants are entitled to summary judgment on this claim.

IV. Other Defenses

While the Court has concluded that all of the Defendants are entitled to summary judgment because Plaintiff has failed to offer sufficient evidence to allow a jury to conclude that his Eighth Amendment rights were violated, certain included Defendants are also entitled to summary judgment for additional reasons.*fn11

A. Dr. Pikus

Although Plaintiff repeatedly contends in his Amended Complaint that he was prevented from seeing a neurosurgeon, he has named Dr. Pikus, the Attending Neurosurgeon at New York Medical College, as a Defendant in this action for negligently clearing him for his cervical spine and ulnar nerve transposition surgeries. Beyond the fact that Plaintiff's claim against Dr. Pikus runs contrary to the thrust of the Amended Complaint, in which Plaintiff alleges that he did not receive his surgeries soon enough, and that he had to wait for neurosurgical consultations before he could receive them, Dr. Pikus cannot be liable because he had no personal involvement in Plaintiff's care. See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (personal involvement of Defendant required to sustain § 1983 action); Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (same)

Dr. Pikus was simply asked by Dr. Moore to review Dr. Moore's evaluations of Plaintiff's neurosurgical issues. Indeed, he never personally evaluated or even met Plaintiff. See Pikus Aff., Ex. D to Loffredo Aff., ¶¶ 5-7; Affidavit of Dr. John A. Galeno ("Galeno Aff."), Ex. E to Loffredo Aff., ¶¶ 4-5. Moreover, not only did Dr. Pikus never clear Plaintiff for any operation, he actually gave his opinion that surgery would not be appropriate to treat Plaintiff's spinal complaints. See Pikus Letter to Dr. Chakravorty, Ex. F to Loffredo Aff., ¶ 4; Pikus Aff., Ex. D to Loffredo Aff., ¶ 5. Dr. Pikus's letter attesting to this fact, and an affidavit by Dr. Galleno, support Dr. Pikus's contention that he never cleared Plaintiff for any surqery. Finally, even accepting Plaintiff's unsupported allegation as true, the negligent exercise of medical judgment does not give rise to an Eighth Amendment violation. See Harrison, 219 F.3d at 139. Plaintiff's conclusory assertion that Dr. Pikus negligently cleared him for surgery is insufficient to defeat Dr. Pikus's motion for summary judgment, see Byrnie, 243 F.3d at 101, and Plaintiff's claims against him must be dismissed.

B. Goord and Artuz

Plaintiff's claims against Glenn Goord, the Commissioner of the New York State Department of Correctional Services, and Christopher Artuz, the Superintendent at Green Haven, must also be dismissed. Plaintiff has not alleged that either Defendant was personally involved in his care, and legal responsibility under a § 1983 case cannot be based on a respondeat superior theory. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978); Blyden v. Mancusi, 186 F.3d 252, 264 (2d (Cir. 2002); Green v. Bauvi, 46 F.3d 189, 194-99 (2d Cir. 1999) "It is well-settled in [the Second] Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation marks omitted).

A defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiff's constitutionally protected interests in several ways:

The defendant may have directly participated in the infraction. . . . A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. . . . A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. . . . Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. . . .
Id. (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted)

Plaintiff does not allege that he ever contacted Goord about his complaints, nor does he claim that Goord had constructive knowledge of the alleged delays in his treatment. Plaintiff's sole contact with Artuz was through a letter he wrote to him on September 16, 1996, complaining about delays. See Am. Complaint ¶ 28. Artuz replied two days later, informing Plaintiff that he had forwarded the letter for action to Zwillinger, the Health Administrator, who was responsible for fielding such complaints. See Pl.'s Ex. 5.

"[P]laintiff's claim for monetary damages against [prison supervisors] requires a showing of more than linkage in the prison chain of command," Wright, 21 F.3d at 501 (citing McKinnon, 568 F.2d at 934), and Plaintiff has not alleged further direct involvement of these Defendants. Although Plaintiff contends that Goord and Artuz were negligent in managing their subordinates responsible for health care at Green Haven, and that they were responsible for instituting policies and customs which allowed the deliberate indifference that he has alleged to occur, there is no evidence in the record to support these contentions. Accordingly, any claims against Goord and Artuz must be dismissed.

C. Cunningham

Plaintiff's claim against John E. Cunningham, the DOCS Regional Medical Director, is without merit and must be dismissed. Plaintiff's sole allegation as to Cunningham is that, after Plaintiff wrote him a letter on September 6, 1999, see Pl.'s Ex. 81, in which Plaintiff complained that his clival lesion and cervical spine issues could not be treated because he had not received a consultation with a neurologist, Cunningham "informed plaintiff that he would not intervene in the matter." Am. Complaint ¶ 66. In fact, as evidenced in Cunningham's letter of September 14, 1999 replying to Plaintiff, Cunningham investigated Plaintiff's situation and spoke about it with Dr. Koenigsmann, who was responsible for health care at Green Haven. See Pl.'s Ex. 81. As Cunningham noted in the letter, Plaintiff's contention was incorrect; he had in fact been seen by a neurosurgeon in February 1999, to assess his lesion and his cervical spine complaints. See Pl.'s Ex. 81; Ex. D to Bath Aff. at 103. In addition, as Cunningham pointed out in the letter, the neurosurgeon had determined that there was no indication for surgery for either Plaintiff's head or his. neck. See Pl.'s Ex. 81; Ex. D to Bath Aff. at 103.

It is clear from the record that Plaintiff's letter of complaint to Cunnigham that he had not seen a neurosurgeon was without foundation, and that Cunningham's letter attesting to this fact was both justified and correct. Plaintiff has advanced no other allegations or evidence against Cunningham, thus entitling Cunningham to summary judgment.

D. Stevens

Plaintiff asserts a claim against Don Stevens, the Nurse Administrator at Green Haven. In his Amended Complaint, Plaintiff alleges that on December 4, 1998, he was taken to WCMC for a specialty consultation, but could not be seen because "Greenhaven's Medical Department negligently failed to send the appropriate medical files." Am. Complaint ¶ 49. According to Plaintiff, "Defendants Chakravorty and Don Stevens specifically failed to insure that plaintiff's complete and active medical records were forwarded to the consultant physician. This was principally defendant Don Stevens['s] responsibility." Id. In his papers in opposition to Defendants' motions, Plaintiff expands his allegations against Stevens, contending that "defendant Stevens could be found liable for the numerous occasions where he delayed Pabon being promptly treated by repeatedly disregarding Pabon's physican's express directions to include all of his prior MRIs and Catscans when Pabon was sent for consultant visits." Pl;s. Resp. at 13.

Stevens has moved to dismiss Plaintiff's claims against him, contending that he "did not provide medical care to plaintiff." State Defs.' Mem. at 17-18. Stevens's contention of noninvolvement in Plaintiff's care is supported by an affidavit submitted by Dr. Koenisgmann, indicating that Stevens "did not ever give care and treatment to the plaintiff nor was he in any way involved with the care and treatment of the plaintiff." Koenigsmann Aff. ¶ 40.

Beyond Plaintiff's conclusory allegation that Stevens failed to send his medical records to specialist physicians, Plaintiff has failed to offer any competent evidence to support his contentions. Moreover, there is no evidence in the record that any failings by Stevens, if there were any, were the result of his deliberate indifference to Plaintiff's serious medical needs. Because a motion for summary judgment supported by competent evidence may not be defeated by conclusory allegations or unsubstantiated speculation, the claims against Stevens must be dismissed.

E. WCMC, Goldberg, and Moore

WCMC and Drs. Goldberg and Moore are entitled to summary judgment because Plaintiff has failed to set forth evidence to support a claim of deliberate indifference against these Defendants. Their involvement in Plaintiff's care was limited to providing him with neurosurgical evaluations with respect to his clival lesion and his spine and elbow conditions. Plaintiff has not alleged that WCMC, Goldberg, or Moore were responsible for the delays he experienced in obtaining consultations, or for the failure to send MRIs, CT scans, and other medical records in connection with these consultations. Rather, Plaintiff simply disagrees with their diagnoses and treatment recommendations concerning his neurological issues. As discussed, a difference of opinion between a prisoner and medical personnel regarding medical treatment does not constitute deliberate indifference. See Chance, 143 F.3d at 703. Even if Plaintiff could demonstrate that his neurosurgeons' diagnoses were so clearly erroneous as to demonstrate medical malpractice — and the Court does not find that he has — such a showing is not sufficient to sustain a claim of deliberate indifference. See Harrison, 219 F.3d at 139. Accordingly, the claims against WCMC, Dr. Goldberg, and Dr. Moore must be dismissed.


For the reasons set forth above, Defendants' motions for summary judgment are granted and this action is dismissed with prejudice.*fn12


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