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March 29, 2004.

CEDRIC YOUNG, Plaintiff,

The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge



Plaintiff Cedric Young ("plaintiff"), an inmate formerly housed at the Attica Correctional Facility ("Attica") brings this action against Dr. David P. Weyand, Dr. David O'Connell, John Rock and Dr. Barry Epstein (collectively "defendants"), alleging that the defendants violated his Eighth Amendment rights in contravention of 42 U.S.C. § 1983 by failing to provide him with adequate medical care. For determination is defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons set forth below, defendants' motion for summary judgment is granted, plaintiff's motion cross-motion for summary judgment is denied and plaintiff's complaint is dismissed in its entirety.


  Plaintiff Cedric Young was incarcerated at the Attica Correctional Facility from December 21, 1995 to February 25, 1997. During that period, plaintiff claims he suffered severe and rapid deterioration of his eyesight, resulting in his inability to discriminate objects near and far, especially when the light was located behind the object. Plaintiff also claims to have experienced what he describes as "floaters", which impaired his vision.

  While incarcerated at Attica plaintiff frequently complained to personnel that he was having problems seeing things far away and up close. To address plaintiff's concerns defendants Dr. O'Connell, Dr. Weyand, Rock and Dr. Espstein examined him several times, attempting to determine if plaintiff suffered from an abnormal eye condition which would cause his sight to deteriorate.

  Dr. O'Connell, a Medical Doctor employed by the New York State Department of Corrections ("DOCS"), was the first to examine plaintiff. Dr. O'Connell's examination revealed that plaintiff suffered only from a natural aging of the eyes called presbyopia, which can be neither halted nor reversed. Accordingly, Dr. O'Connell prescribed plaintiff corrective lenses to help with any loss of eyesight he may have been experiencing. Defendant John Rock, a licensed optician who is not employed by DOCS but does work on a contract basis, fit plaintiff for the eyeglasses prescribed by Dr. O'Connell.*fn1 When plaintiff subsequently complained that his eyesight was continuing to deteriorate despite the corrective lenses, Dr. O'Connell referred plaintiff to Dr. Weyand, an optometrist, for further examination. Dr. Weyand, a licensed optometrist who provides care to inmates at Attica on a contract basis, examined plaintiff on four separate occasions during his stay at Attica. Each examination revealed no ocular pathology. In addition, Dr. Weyand concluded that plaintiff's visual acuity with corrective lenses was 20/20 in distance and near in both his right and left eyes. Nonetheless, plaintiff continued to complain that he was losing his sight, whereupon Dr. Weyand referred him to Dr. Barry Epstein for further diagnosis. Dr. Epstein, a licensed ophthalmologist at the Ophthalmology Clinic at the Wende Correctional Facility, examined plaintiff and also found no ocular pathology.*fn2 Plaintiff commenced this action on July 8, 1996, and has yet to submit any objective medical evidence that he suffers from an ocular pathology other than presbyopia, as diagnosed by defendants.


  Rule 56 of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment as a matter of law only where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." F.R.C.P. 56(c) (2003). The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists, and in making the decision the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (citing Marvel Characters v. Simon, 310 F.3d 280, 285-86(2d Cir. 2002)). "Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party." Id.

  In order to establish a § 1983 claim based on inadequate medical care, a plaintiff must prove that defendants acted with a deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97 (1976). The standard of deliberate indifference includes an objective component requiring a "sufficiently serious injury", and a subjective component requiring a "sufficiently culpable state of mind." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).

  Here, plaintiff alleges a sufficiently serious injury to state a claim under § 1983; namely that his eyesight was rapidly deteriorating. "The standard for Eighth Amendment violations contemplates a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976).). However, a plaintiff need not endure pain to "adequately meet the test of suffering that Gamble recognized is inconsistent with contemporary standards of decency." Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (quoting Gamble 429 U.S. at 103). The Second Circuit recognizes visual deficiencies as meeting this test of "suffering." Id. As such, plaintiff's alleged visual deterioration satisfies the sufficiently serious injury inquiry.

  However, plaintiff fails to adequately allege that defendants knew of and disregarded an excessive risk of harm to his health. ____ A defendant does not act in a deliberately indifferent manner unless he "knows of and disregards an excessive risk to an individual's health or safety; the [defendant] 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 v. Brennan, 511 U.S. 825, 835 (1994). Aside from bald assertions that defendants "were not concerned with whether the plaintiff got proper care", Plaintiff's Motion for Summary Judgment, p. 4 (Doc. No. 57), and complaints that his eyesight continued to deteriorate despite the prescriptive lenses supplied to him by Dr. O'Connell and Rock, plaintiff offers no evidence that defendants knew a serious risk of harm existed to plaintiff's eyesight. Moreover, the facts before the Court belie plaintiff's accusations. Plaintiff was examined by Dr. Weyand on four separate occasions, and obtained three opinions from three different doctors — all of which concluded that he had no ocular pathology. "[A] mere difference of opinion between a prison's medical staff and the inmate as to the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment." Perro v. Romano, 1990 WL 80251, *2 (W.D.N.Y. 1990) quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).

  Plaintiff also claims that defendants refused to perform surgery to improve his eyesight because they did not want to pay for the surgery. To support this allegation, plaintiff provides an excerpt of a transcript of a conversation his previous attorney had with an optometrist named Dr. Nejat. However, plaintiff never names the procedure. Moreover, in the transcript Dr. Nejat admits that the procedure is rarely performed because, "it requires an extensive operation where basically you have to clean out the inside of the eye." (Plaintiff's Motion for Summary Judgment, Doc. No. 57, Exhibits, p. 4.) And, "I don't know of anybody who would do that kind of operation for just a benign thing." Id. From this evidence, no reasonable jury ...

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