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United States District Court, S.D. New York

May 13, 2004.


The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


Pro se plaintiff Gary Hall, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendant Sing Sing Correctional Facility employees violated his constitutional rights by deliberate indifference to his serious medical needs. (See generally Dkt. No. 2: Compl.) After the conclusion of discovery, defendants Perilli, Fischer and Cooper (but not defendant Bakshi) moved for summary judgment (Dkt. Nos. 28-32, 35), and plaintiff Hall cross-moved for summary judgment against all defendants. (See Dkt. No. 36.)

For the reasons set forth below, defendants Perilli, Fischer and Cooper's summary judgment motion should be GRANTED, and Hall's cross-summary judgment motion should be DENIED. Accordingly, the claim of deliberate indifference to Hall's serious medical needs against defendant Bakshi regarding the analgesic cream shall proceed to trial. FACTS*fn1

 The Hot Infirmary Room

  Plaintiff Gary Hall was convicted of third degree criminal sale of a controlled substance, and sentenced to four and a half to nine years imprisonment. (Dkt. No. 32: Hertzberg Aff. Ex. A: DOCS Inmate Information re Hall; Hertzberg Aff. Ex. B: Hall Dep. at 7.) On May 19, 2002, while incarcerated at Clinton Correctional Facility, Hall was attacked by another inmate who threw hot oil onto his face, burning his face and eyes. (Hall Dep. at 15, 27-28, 35-36.) DOCS transported Hall to a Westchester County hospital for emergency treatment. (Hall Dep. at 27-28.) Hall remained hospitalized until May 24, 2002, when he was transported to Sing Sing Correctional Facility. (Hall Dep. at 28, 41-42; Dkt. No. 2: Compl. ¶ 9; Hertzberg Aff. Ex. C: Defs. Response to 2d RFAs No. 1.)

  Upon arrival at Sing Sing, Hall was placed in protective custody and put into an isolation room (room number 3) in the infirmary with an officer, Sergeant Cooper, posted at his door. (Hall Dep. at 42, 65; Compl. ¶¶ 9-11; Defs. Response to 2d RFAs Nos. 2-3.) Hall requested to Sergeant Cooper that he be removed from room #3 due to the "heat and lack of ventilation." (Hall Dep. at 53-55, 64; Compl. ¶¶ 13-14; Hertzberg Aff. Ex. C: Defs. Int. Response No. 3 (responding "Yes" to the question, "Did plaintiff at this time request of [Sgt. Cooper] to be removed from room #3 due to the heat and lack of air, no ventilation?").) Sgt. Cooper said Hall might be moved to a room with better air circulation later but for now he had to stay in room #3. (Hall Dep. at 54.)*fn2 This was the only interaction Hall had with Sgt. Cooper for the duration of his treatment in the Sing Sing infirmary. (Hall Dep. at 54, 64.)

  Defendant Dr. M. Bakshi also visited Hall on May 24, 2002 in order to provide medical treatment. (Hall Dep. at 45; Hertzberg Aff. Ex. C: Defs. Int. Response No. 13 ("Dr. Bakshi did examine plaintiff on May 24, 2002."); Dkt. No. 30: Bakshi Aff. ¶ 3.) Dr. Bakshi was informed about the heat in the room during that visit. (Compl. ¶ 16; Defs. Int. Response No. 14 ("Dr. Bakshi noted in plaintiff's charts both that the air conditioning in Sing Sing Infirmary Room No. 3 was inadequate and that there was a risk that plaintiff's burns might become infected.").)*fn3 Later that same day, a nurse attended to Hall and noted in his records that Hall complained that the room was "uncomfortable/stuffy," and also noted "negative pressure is off [and] room is poorly ventilated at this time, problem reported . . . " (Dkt. No. 35: Perilli Aff. ¶ 9 & Ex. A: Medical Notes at 2.)

  Dr. Bakshi saw Hall again on May 25, 2002. (Bakshi Aff. ¶ 3.) During the visit, Dr. Bakshi made a notation about Hall's burns, but did not record any information about the temperature of the infirmary room. (Perilli Aff. Ex. A: Medical Notes at 2.) Hall alleges that during this visit he complained to Dr. Bakshi about the room conditions. (Compl. ¶ 16.)

  On May 28, 2002, defendant Dr. John Perilli visited Hall in his infirmary room. (Perilli Aff. ¶ 3; Defs. Int. Response No. 19.) Dr. Perilli noted that Hall was suffering from a rash, and discontinued his topical medications; he recorded no information about the room's temperature. (Perilli Aff. ¶ 4 & Ex. A: Medical Notes at 4; cf. Hall Dep. at 90-91.) Later that same day, Dr. Bakshi saw Hall, noting that Hall complained of facial pain, and executed an order sheet requesting that Hall be moved to a room "with better air circulation." (Perilli Aff. Ex. A: Medical Notes at 5, 18; see also Hall Dep. at 86-87; Bakshi Aff. ¶¶ 3, 7; Defs. Int. Response No. 15 ("Dr. Bakshi made the following notation on plaintiff's medical chart on May 28, 2002: `Please change room to room w[ith] better air circulation.'").) Hall was moved to another room that same day (i.e., May 28). (Compl. ¶ 23; Hall Dep. at 76.)

  Hall claims that because of his stay in infirmary room #3, he suffered from the "high [room] temperatures due to no ventilation," "which subsequently brought about severe heat rash" on his arms and chest, which "doctor[]s attributed to [burn] medications." (Compl. ¶ 29; Hall Dep. at 47-49, 55-57, 71-72, 87-88.) Hall also claims that as a result of the heat, his "face was swollen to a point where [his] eyes was almost shut." (Hall Dep. at 55; see Perilli Aff. Ex. A: Medical Notes at 2.) The rash on Hall's arms and chest cleared up four or five days after he was moved out of that room and given hydrocortisone cream. (Hall Dep. at 58, 94-96.) Hall's physical injuries have completely healed. (Hall Dep. at 96.) As a result of the room conditions, however, Hall further alleges that he suffered "tremendously" and "often has recurring nightmares and extended bouts of depression regarding his confinement to room #3." (Compl. ¶¶ 30-31; Hall Dep. at 94-95.)*fn4 The Analgesic Balm

  On May 28, 2002, Dr. Bakshi examined Hall and prescribed a number of medications to treat his facial burns, including analgesic balm (also referred to as "Ben Gay"). (Compl. ¶ 25; see also Defs. Int. Response No. 24; Perilli Aff. Ex. A: Medical Notes at 19; Hall Dep. at 46-47, 49-50, 52-53, 72-73.) On May 29, 2002, following Dr. Bakshi's orders, Hall applied the analgesic balm to his face; Hall alleges that it "caused [Hall] a great deal of mental anguish, and stress, which leads to bouts of depression and . . . triggers to [his] mind the `initial burns received from the hot oil.'" (Compl. ¶ 32; Hall Dep. at 73-74.) Hall testified that he believed Dr. Bakshi gave him the Ben Gay deliberately to cause him pain, because Dr. Bakshi was very "hostile" to him. (Hall Dep. at 70-71.) Hall added that he beliefed that "due to [his] complaints and going to the supervisor, . . . Dr. Bakshi intended to assault [him]. . . . This was a deliberate attack on [Hall] just like the burn." (Hall Dep. at 105-06; Compl. ¶ 24.)

  Dr. Bakshi discontinued the Ben Gay on May 29. (Perilli Aff. Ex. A: Medicat Notes at 20; Defs. Int. Response No. 25.) According to defendants, Dr. Bakshi discontinued the Ben Gay "as no longer medically necessary as improvement in plaintiff's condition was noted on that date." (Defs. Int. Response No. 25.)

 The Summary Judgment Motions

  At the conclusion of discovery, defendants Perilli, Cooper and Fischer filed a summary judgement motion. (Dkt. Nos. 28-32, 35.) Defendants assert that summary judgment should be granted to Perilli, Cooper and Fischer because: (1) they were not deliberately indifferent to Hall's needs (Dkt. No. 28: Defs.' Br. at 6); (2) they were not personally involved in Hall's claims (Id. at 9); and (3) they are entitled to qualified immunity (Id. at 18). Hall cross-moved for summary judgment against defendant Dr. Bakshi. (Dkt. No. 36: Hall Br. at 7.)



  Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if 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 and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

  The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g.,Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

  To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.

  In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513; see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "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." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37. In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See. e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 25 10 (citations omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

  "The Court recognizes that it must `extend extra consideration' to pro se plaintiffs" such as Hall and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. at 535 (citations & internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'").*fn6 Moreover, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See, e.g., Irby v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001) ("[W]e remind the district courts of this circuit, as well as summary judgment movants, of the necessity that pro se litigants have actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with the requirements of Rule 56. . . . [E]ither the district court or the moving party is to supply the pro se litigant with notice of the requirements of Rule 56. . . . In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic."); McPherson v. Coombe, 174 F.3d at 280-81 ("`[t]he failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.'") (citations omitted).*fn7 Defendants here served the appropriate notices on Hall. (Dkt. No. 29: Notice of Mot. for Summ. J.; Defs.' 56.2 Notice.)

  "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see also, e.g., Viruet v. Citizen Advice Bureau. 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug 15, 2002) (Peck, M.J.); Smith v. Planas, 975 F. Supp. 303, 305 n.2 (S.D.N.Y. 1997). II. DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT DISMISSING HALL'S CLAIM THAT DEFENDANTS WERE DELIBERATELY INDIFFERENT TO HIS MEDICAL NEEDS BECAUSE HE WAS KEPT IN A HOT INFIRMARY ROOM FOR FOUR DAYS

  A. Applicable Law Regarding Claims of Deliberate Indifference to Serious Medical Needs*fn8

  To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983: West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749 (1994).

  The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." E.g., Hudson v. McMillan, 503 U.S. 1, 5, 8, 112 S.Ct. 995, 998, 1000 (1992); Wilson v. Seiter, 501 U.S. 294, 297, 308, 111 S.Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble. 429 U.S. 97, 102, 104-05, 97 S.Ct. 285, 290, 291 (1976); Gregg v. Georgia. 428 U.S. 153, 173, 96 S.Ct. 2909, 2925 (1976). To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs. E.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480 (1993); Estelle v. Gamble. 429 U.S. at 104-05, 97 S.Ct. at 291.*fn9

  As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108 (1995).*fn10 "Objectively, the alleged deprivation must be `sufficiently serious.'"Hathaway v. Coughlin, 99 F.3d at 553: see also, e.g., Hudson v. McMillian, 503 U.S. at 9, 112 S.Ct. at 1000 ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are `serious'"); Smith v. Carpenter, 316 F.3d at 183-84 ("The objective "medical need' element measures the severity of the alleged deprivation . . . "); Selby v. Coombe, 2001 WL 964195 at * 1; Chance v. Armstrong. 143 F.3d at 702; Torres v. Mazzuca, 246 F. Supp.2d 334, 339 (S.D.N.Y. 2003). "`The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves. . . .'" Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). "[O]nly those deprivations denying `the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991) (citation omitted); see also, e.g., Dean v. Coughlin, 804 F.2d at 215 ("`[T]he essential test is one of medical necessity and not one simply of desirability.'"). Thus, Eighth Amendment protection is limited to "`a condition of urgency' that may result in `degeneration' or `extreme pain.'" Chance v. Armstrong, 143 F.3d at 702;*fn11 accord, e.g., Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002); Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical condition exists where `the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'").

  "Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553; accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("[T]he subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind."); Selby v. Coombe, 2001 WL 964195 at *1; Chance v. Armstrong. 143 F.3d at 702. "The required state of mind, equivalent to criminal recklessness, is that the 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.'"" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994))).*fn12 Deliberate indifference maybe "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291 (fn. omitted); accord, e.g., Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir. 1991) ("Cruel and unusual punishment may consist of prison officials delaying an inmate access to needed medical care.").*fn13 However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble. 429 U.S. at 105-06, 97 S.Ct. at 292; accord, e.g., Burton v. New York State Dep't of Corrections. 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Estelle v. Gamble. 429 U.S. at 106, 97 S.Ct. at 292.*fn14 As the Supreme Court has stated, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble. 429 U.S. at 106, 97 S.Ct. at 292; accord, e.g., Smith v. Carpenter, 316 F.3d a 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation."); Hathaway v. Coughlin, 99 F.3d at 553; Burton v. New York State Dep't of Corrections, 1994 WL 97164 at *2. An act of malpractice will amount to deliberate indifference only if "the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces `a conscious disregard of a substantial risk of serious harm.'" Chance v. Armstrong, 143 F.3d at 703 (quoting Hathaway v. Coughlin, 99 F.3d at 553); Harrison v. Barkley, 219 F.3d at 139 ("We agree that 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 calculus 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, or that treatment is unreliable, or that the cure is as risky or painful or bad as the malady. . . . [But] [c]onsciously disregarding an inmate's legitimate medical needs is not `mere medical malpractice.'"); Hathaway v. Coughlin, 37 F.3d at 66 ("Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.").

  "It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance v. Armstrong. 143 F.3d at 703; accord, e.g., Hathaway v. Coughlin, 37 F.3d at 70 (Jacobs, C.J., dissenting) ("`We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.'"); Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim."); see also, e.g., Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim"); Brown v. Selwin, 98 Civ. 3008, 1999 WL 756404 at *6 (S.D.N.Y. Sept. 24, 1999) (citing cases), aff'd, No. 01-0144, 29 Fed. Appx. 762, 2002 WL 355901 (2d Cir. Mar. 6, 2002); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999); Espinal v. Coughlin, 98 Civ. 2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).*fn15 "Just as the relevant `medical need' can only be identified in relation to the specific factual context of each case, the severity of the alleged denial of medical care should be analyzed with regard to all relevant facts and circumstances. The absence of adverse medical effects or demonstrable physical injury is one such factor that may be used to gauge the severity of the medical need at issue. Indeed, in most cases the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Smith v. Carpenter, 316 F.3d at 187 (citations omitted).

  B. Application of the Legal Standard to Hall's "Hot Room" Claim

  Hall asserts that defendants were deliberately indifferent to his serious medical needs because he was placed in a hot and poorly ventilated infirmary room from May 24, 2002 until May 28, 2002 during treatment for and recovery from his burn wounds. (See, e.g., Compl. ¶¶ 9-23.)

  As discussed above, Hall's claims must be sufficiently serious both objectively and subjectively. (See discussion and cases cited at pages 11-12 above.) Whether considered under the objective or subjective prong, Hall's claim fails. As to Sgt. Cooper, who saw Hall when he first was admitted to the Sing Sing infirmary and at no other time, there is no evidence that he knew or recklessly disregarded the risk that a hot room could medically endanger Hall or cause Hall serious pain. At the other end of the chronology, Dr. Perilli saw Hall for the first time on May 28, 2002, the very same day Hall later was moved out of the "hot" room. (See pages 3-4 above.) There is no evidence that Supt. Fischer knew that Hall was in a "hot" room or was complaining about the room. (See pages 20-21 below.)

  As to Dr. Bakshi, Hall alleges that he complained to Dr. Bakshi on May 24, 25 and 28, and only on May 28 did Dr. Bakshi note in the medical records that Hall should be moved to a room with better air circulation. (See pages 3-4 above.) Even assuming arguendo that Hall's complaints and his allegation of pain were sufficient to satisfy the objective prong of the medical indifference standard as to Dr. Bakshi,*fn16 Hall has not set forth evidence to satisfy the subjective prong. Hall's theory is that Dr. Bakshi was hostile to him because Hall complained to Dr. Perilli, Dr. Bakshi's supervisor. (See page 5 above.) But Hall did not do so until May 28, the very day that Dr. Bakshi noted that Hall should be moved out of the "hot" room and when, in fact, Hall was moved from that room. At most, therefore, Hall presented evidence from which a trier of fact might conclude there was a lack of due care by Dr. Bakshi (as to the hot room), but not wantonness in placing Hall's health in danger. Moreover, as Dr. Bakshi noted, Hall did not show "any signs of heat toxicity such as abnormal vital signs, change of mental status or dehydration." (Bakshi Aff. ¶ 4.)*fn17 Nor is this case one where the plaintiff was thrown in a hot room and ignored; the evidence is undisputed that Dr. Bakshi and others treated Hall and gave him ointments for his burns and also pain medication. (See pages 3-5 above.) Accordingly, defendants are entitled to summary judgment dismissing Hall's claim that all four defendants acted with deliberate indifference by placing him in "hot" room #3. See, e.g., Byas v. State of New York, 99 Civ. 1673, 2001 WL 1579552 at *3 (S.D.N.Y. Dec. 11, 2001) (prisoner claimed that defendants were deliberately indifferent to his medical needs because, inter alia, the infirmary was "hot and stuffy . . . While plaintiff was in discomfort, he has not demonstrated that he had serious medical needs or was in great pain, nor can he claim his condition was degenerating quickly." Plaintiff failed to meet both the objective and subjective prongs.); Brown v. McElroy, 160 F. Supp.2d 699, 706 (S.D.N.Y. 2001) (Allegations that prisoner was kept in an "extremely cold" room which he complained was making him sick was "not sufficiently serious to state a claim of unconstitutional conditions of confinement."); Miller v. Velasco, No. 98 C 4408, 1999 WL 529562 at *6 (N.D. Ill. July 19, 1999) ("Trudging through the snow and cold and then having to sit for more than four hours in a hospital gown and wet booties was undoubtedly uncomfortable" but was "not a violation of a constitutional right."); Young v. Breeding. No. 95 C 4547, 1997 WL 43459 at *1, 5 (N.D. Ill. Jan. 29, 1997) (Prisoner that had to "endure extremely cold air from the hospital's air conditioning system" while held in a confinement cell for a day without clothes has not shown "a deprivation of constitutional magnitude."); Obregon v. Gibbons. Civ. A. No. 95-1875, 1996 WL 163942 at *3 (D.D.C. Apr. 2, 1996) (Prisoner's allegations that despite his heart condition he was placed in a "poorly ventilated cell" failed to rise to the level of deliberate indifference to serious medical needs required to merit relief); Tucker v. Randall, 840 F. Supp. 1237, 1247 (N.D. Ill. 1993) (Alleged intensely cold and hot temperatures, the latter which detainee claims caused him "rashes, ear infections and vomiting spells," in detainee's cell did not meet deliberate indifference standard.).*fn18


 A. Legal Standard for Supervisory Liability for § 1983 Claims*fn19

  "It is well settled in this 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); accord, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., No. 03-7058, ___ F.3d___, 2004 WL 739846 at *9 (2d Cir. Apr. 7, 2004); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Torres v. Mazzuca, 246 F. Supp.2d 334, 338-39 (S.D.N.Y. 2003); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. & Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").*fn20

  "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 v. Coughlin. 58 F.3d at 873.*fn21

 B. Application of the Supervisor Liability Legal Standard to Hall's "Ben Gay" Claim

  Here, Hall has failed to show that defendants Perilli, Cooper or Fischer were personally involved in the medical indifference claim concerning analgesic balm, i.e., "Ben Gay."

  Hall admitted that his one and only interaction with Sgt. Cooper was when he requested another infirmary room on May 24, 2002. (Hall Dep. at 54, 64; see page 3 above.) Thus, Hall has provided no evidence that Sgt. Cooper was responsible for or even aware that Dr. Bakshi had given Hall Ben Gay on May 28.

  Hall explained during his deposition that the reason he named Superintendent Fischer as a defendant was because "Superintendent Fischer is the overall supervisor for the entire facility . . . [and] is the overall provider of the facility, should be aware of everything." (Hall Dep. at 81.) However, Hall's amorphous feeling that a prison superintendent should have knowledge that a particular inmate was given analgesic balm and that a prison superintendent who is not a doctor should know that certain medication is contra-indicated does not satisfy the standard for supervisory liability. (See pages 19-20 above.) Hall did not provide any evidence that Supt. Fischer knew anything about the medication that Hall received; when asked if he thought Supt. Fischer knew about his medications Hall responded: "I don't know if he went to that extent." (Hall Dep. at 83.) While Hall knew that Supt. Fischer received are port about the oil incident at Clinton Correctional Facility, Hall admitted that he did not know if Supt. Fischer had "the details of the medical treatment [Hall] was getting at Sing Sing." (Hall Dep. at 84.) In fact, Hall states that the sole reason that Supt. Fischer should be responsible is because of his top supervisory position, and not because Hall has any evidence or knowledge that Supt. Fischer knew about his treatment (or the heat condition in that infirmary room). (Hall Dep. at 83; see also Dkt. No. 36: Hall Br. at 9.) That is not sufficient as a matter of law. See, e.g., Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) ("[Petitioner's] complaint is silent as to anything which defendant Jones, the Superintendent of the Great Meadow Correctional Facility, did or failed to do. It alleges only that Jones is responsible `for the operations and management of the Great Meadow Correctional Facility, and the conduct of all staff personnel, and the care, custody and safety of all inmates under his immediate jurisdiction.' Absent some personal involvement by [the Superintendent] in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983."); Morris v. Eversley, 282 F. Supp.2d 196, 204-08 (S.D.N.Y. 2003); Torres v. Mazzuca, 246 F. Supp.2d 334, 339-40 (S.D.N.Y. 2003); Anderson v. Sullivan. 702 F. Supp. 424, 428 (S.D.N.Y. 1988) ("As the [Second Circuit] noted, dismissal is proper where the plaintiff does no more than allege that the superintendent is in charge of the prison.").

  Finally, Hall fails to provide any evidence of Dr. Perilli's involvement in the administration of the analgesic balm. (See page 5 above.) It is undisputed that Dr. Bakshi discontinued the Ben Gay the same day that Hall applied it to his face. (Perilli Aff. Ex. A: Medical Notes at 20; see page 5 above.) Hall fails to meet any of the means enumerated above that Dr. Perilli could have possibly had personal involvement via his position as Dr. Bakshi's supervisor: (1) Hall provided no evidence that Dr. Perilli directly participated in Hall's treatment with Ben Gay; (2) by the time Dr. Perilli learned of the administration of Ben Gay, the medication had already been discontinued by Dr. Bakshi; (3) Hall provided no evidence that Dr. Perilli created a policy or custom of prescribing Ben Gay for burns generally or for buned inmates who annoyed a prison doctor; (4) Dr. Perilli's behavior does not rise to the level of gross negligence in supervising Dr. Bakshi on the single day Dr. Bakshi prescribed and discontinued the Ben Gay; and (5) Dr. Perilli did not fail to act on information because he had none until the analgesic cream was already discontinued. See, e.g., Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003) (The supervising doctor "never examined or diagnosed plaintiff's hand. And he was not directly responsible for placing medical holds on patients; for scheduling treatments or procedures; or for following up on issues such as physical therapy or `feed up' passes. There is no evidence that [the supervising doctor] had notice of, instituted, or became aware of any unconstitutional policy, practice or act, or that he was grossly negligent in supervising his subordinates."); Joyner v. Greiner, 195 F. Supp.2d 500, 507 (S.D.N.Y. 2002) (dismissing complaint of medical indifference against Dr. Perilli for alleged unresponsiveness to prisoner's letter complaining about his medical care).

  Accordingly, defendants Cooper, Fischer and Perilli should be granted summary judgment dismissing all of Hall's claims against them.*fn22


  Hall's complaint names as a defendant Dr. M. Bakshi, the doctor who Hall alleges prescribed the analgesic balm for treatment of his facial burns. (Compl. ¶ III.) Defendants did not move for summary judgment on the deliberate indifference to Hall's medical needs claim as to Dr. Bakshi. Hall's motion for summary judgment as to Dr. Bakshi is denied because there are genuine issues of fact in dispute around Dr. Bakshi's prescription of the analgesic balm and whether it was medically indicated or contra-indicated. (See page 5 above.) Hall's medical indiffereance claim against Dr. Bakshi for allegedly prescribing Ben Gay accordingly should proceed to trial.


  For the reasons set forth above, defendants Perilli, Fischer and Cooper's summary judgment motion should be GRANTED, and Hall's summary judgment should be DENIED. Hall's deliberate medical indifference claim against Dr. Bakshi for prescribing "Ben Gay" ointment should proceed to trial. The Pretrial Order has already been filed. The Court previously had placed Hall's case on the list for pro bono counsel. (Dkt. No. 34: 2/4/04 Order.) If a volunteer lawyer does not take the case soon, however, Hall's case should proceed to trial without counsel.*fn23


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Casey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049. 1054 (2d Cir. 1993), cert. denied. 513 U.S. 822, 115 S.Ct. 86 (1994): Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson. 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988): McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

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