The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants John Supple, M.D. ("Dr. Supple"), William Sohng,
M.D. ("Dr. Sohng"), Glenn S. Goord, s/h/a Glen S. Goord
("Goord"), Brian Malone ("Malone"), Thomas Eagan, s/h/a Thomas
Egan ("Eagan"), Richard Klyszejko, M.D., s/h/a R. Klyszejko ("Dr.
Klyszejko"), Anna Cole ("Cole"), William Mazzuca ("Mazzuca") and
Raymond Cunningham ("Cunningham") (collectively, the
"Defendants") have moved under Rule 56, Fed.R.Civ.P., to
dismiss the complaint of plaintiff Ronald Swindell, a/k/a Idon
Jtaj ("Swindell") alleging deliberate indifference to his medical
needs. For the reasons set forth below, the motion is granted,
and the complaint dismissed.
Swindell, who is proceeding here pro se, filed his
complaint pursuant to 42 U.S.C. § 1983 on April 23, 2002 alleging
that the Defendants, all present or former employees of the New
York State Department of Correctional Services ("DOCS"), were
deliberately indifferent to his serious medical needs in
violation of his federal constitutional rights. Swindell claims
that the Defendants were deliberately indifferent to his serious
medical needs because they denied him medical treatment for
calluses on his feet as well as a more general dry skin condition
while he was incarcerated at Fishkill Correctional Facility
("Fishkill") because he was not referred to a dermatologist for
treatment of his "dry
skin" condition, or referred to a podiatrist for treatment of
calluses on both feet.
Discovery has been had, including the taking of Swindell's
deposition, and the instant motion was marked fully submitted on
November 8, 2004 following the receipt of Swindell's surreply
The facts are drawn from the Statement pursuant to Local Civil
Rule 56.1 of the Defendants and the declaration of Swindell and
are not in dispute except as noted below.
Swindell was incarcerated at Fishkill from September 2000 until
December 2001. He was transferred to Attica Correctional Facility
where he remained until November 2002 when he was transferred to
Mid State Correctional Facility where he is presently confined.
Dr. Supple was one of Swindell's primary care physicians while
he was incarcerated at Fishkill. Dr. Sohng was also one of
Swindell's primary care physicians at Fishkill.
Defendant Goord is the Commissioner of DOCS. Swindell has
admitted at his deposition that he never spoke directly with
Goord and that he did not receive any medical treatment from
Goord, and has further acknowledged that his only contact with
Goord consisted of "three or four" letters that he purports to
have written to Goord and the answers to "two" that he received
from Goord's representative. (See Deposition of Ronald
Swindell, dated Sept. 13, 2003 ("Swindell Dep."), attached as
Exhibit A to the Declaration of Donald Nowve, dated March 30,
2004, at 33-36.)
Defendant Malone, now deceased, was DOCS' former Inspector
General. Swindell acknowledged at his deposition that Malone did
not render any medical care to Swindell. According to Swindell,
Malone failed to respond to one or more complaint letters.
Eagan was sued as "Director of the IGRC [Inmate Grievance
Review Committee] in Albany."*fn1 (Compl. at ¶ IV.) Eagan is
not a physician and never rendered any medical care or treatment
Klyszejko is alleged to have been deliberately indifferent as a
consequence of being "in charge" of the medical department
as "Assistant Facility Health Services Director" at
Fishkill.*fn2 (Compl. at ¶ IV; see Also Swindell Dep.,
at 40.) Swindell testified that Dr. Klyszejko did not assist in
remedying Swindell's skin condition and never met Swindell.
Cole was sued as Deputy Superintendent of Health at
Fishkill.' (See Compl. at ¶ IV.) Swindell explained at
his deposition that the Inmate Grievance Review Committee (the
"IGRC") recommended, among other things, that Swindell be
evaluated by the Facility Health Services Director (the "FHSD"),
and/or by a "medical provider," and that Cole should "review this
matter." (Swindell Dep., at 43-47.)
Mazzuca and Cunningham have been sued in their capacities as
Superintendent and "First Deputy" of Fishkill, respectively.
(Compl. at ¶ IV.) Cunningham has since left Fishkill and became
Superintendent at Woodbourne Correctional Facility in July 2002.
Swindell complained to medical personnel at Fishkill that he
had dry, chapped, itching and cracked skin affecting his arms,
legs and torso. At his deposition he described his skin condition
as "a cracking and bleeding and coming up from my calf up to my
knee . . . all the way to my thighs . . . real rough skin . . .
red, always itches." (Swindell Dep., at 23.)
Swindell asked to see a dermatologist for his dry skin problem
during a consultation with Dr. Supple on July 24, 2001 (the "July
24 consultation"). The problem was not found to present the type
of medical issue that required intervention by a dermatologist.
Swindell was informed that the application of a widely used,
over-the-counter skin moisturizer such as A&D ointment, together
with follow-up appointments at the clinic for re-evaluation was
the appropriate mode of treatment. According to Swindell's
declaration, Dr. Sohng also gave him A&D ointment to address his
skin condition and did not place him on the list to see a
The July 24 consultation also addressed Swindell's complaint
about a lift that had been inserted in his state-issued left boot
in March 2001. During the consultation, Swindell requested to see
a podiatrist for calluses on his feet. Dr. Supple prescribed
callus pads. According ...