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SWINDELL v. SUPPLE

United States District Court, S.D. New York


February 3, 2005.

RONALD SWINDELL, a/k/a IDON JTAJ, Plaintiff,
v.
JOHN SUPPLE, M.D., et al., Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

Prior Proceedings

  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 Page 2 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 papers.

  The Facts

  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 Page 3 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 to Swindell.

  Klyszejko is alleged to have been deliberately indifferent as a consequence of being "in charge" of the medical department Page 4 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.

  The Medical Allegations

  Swindell complained to medical personnel at Fishkill that he had dry, chapped, itching and cracked skin affecting his arms, Page 5 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 dermatologist.

  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 to Swindell's declaration, Dr. Supple did not remove Swindell's calluses.

  Dr. Supple, who has testified that the body forms calluses on the skin as a natural reaction to friction, determined that the calluses on Swindell's feet did not present a dangerous Page 6 medical condition and did not warrant intervention by a podiatrist. Application of medicated, adhesive keratolytic pads to the affected area comprised, according to Dr. Supple, the medically accepted, first line of treatment for the type of calluses affecting Swindell.

  Dr. Supple has further testified that if the application of keratolytic pads does not provide relief, the primary care physician may, in more serious cases, opt to attempt debridement, or cutting down, of the calluses. He has also testified that DOCS primary care physicians have the discretion to recommend that a patient be referred to a podiatrist. Such latter measures were not deemed medically necessary with regard to Swindell.

  Swindell's Grievances

  Swindell has filed grievances related to the medical conditions at issue here and has appealed the resolution of those grievances to the Central Office Review Committee ("CORC") on at least six occasions. Swindell's requests to see a dermatologist were denied by CORC by orders of November 29, 2000, January 17, 2001,*fn3 April 18, 2001, and June 20, 2001. The April 18, 2001 disposition was termed a ***ILLEGIBLE TEXT*** "with clarification." (Supplemental Declaration of Donald Nowve, dated Aug. 25, 2004, Exh. A, at Page 7 ***ILLEGIBLE TEXT*** CORC denied Swindell's requests to see another provider on ***ILLEGIBLE TEXT*** 2001 and August 1, 2001.

  The Rule 56 Standard

  Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed .R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994 internal citations omitted). If, however, "`as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'" Security Ins. Page 8 Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 82 83 2d Cir. 2004 quoting ***ILLEGIBLE TEXT*** v. Village of Depew, 75 F.3d 98, ***ILLEGIBLE TEXT*** (2d Cir. 1996)).

  "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). This burden may be satisfied "by showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Pepsi Co, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

  In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248; Byrnie v. Town of ***ILLEGIBLE TEXT***, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Santto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the non-moving party "may not rely simply on conclusory statements ***ILLEGIBLE TEXT*** on contentions that the affidavits supporting the motion ***ILLEGIBLE TEXT*** not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 632 (2d Cir. 1993); accord Scotto, 143 F.3d at 114-15. Page 9

  A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) ("[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment."). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).

  In addressing the present motion, the Court is mindful that Swindell is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); accord Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). District courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that Page 10 they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999 quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). These same principles apply to briefs submitted by pro se litigants. See Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003); Burgos 14 F.3d at 790. Nonetheless, a litigant's pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted); see also Edwards v. I.N.S. 59 F.3d 5, 8-9 (2d Cir. 1995). Indeed, 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, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).

  Summary Judgment Is Appropriate

  A. Swindell Has Exhausted His Administrative Remedies

  As Swindell is in inmate in the custody of DOCS, this action is subject to the Prisoner Litigation Reform Act, 42 U.S.C. § ***ILLEGIBLE TEXT*** (the "PLRA"), and, specifically, to the requirement that administrative remedies ***ILLEGIBLE TEXT*** exhausted before an action may be Page 11 brought on the underlying claims. The PLRA provides, in pertinent part, that

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The provision is applicable even to those suits seeking relief, such as money damages, not available through prison administrative proceedings. See Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, inmates' claims that fit within "the category of `inmate suits about prison life?' . . . must be preceded by the exhaustion of state administrative remedies available," Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002), although "certain caveats apply" in considering what constitutes exhaustion and when it is required. Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004).

  Swindell has filed repeated grievances relating to the events at issue herein, and the Defendants have implicitly conceded his exhaustion of administrative remedies, no argument having been raised by them in this regard. See generally Johnson v. Testman, 380 F. 3d 691, 695 (2d Cir. 2004) (concluding that the affirmative Page 12 defense of non-exhaustion may be waived if not raised by a defendant.

  B. The Standard For Deliberate Indifference Has Not Been Met

  Under the Eighth Amendment, the state has an obligation to provide medical care and treatment to inmates. See West v. Atkins, 487 U.S. 42, 54 1988); Estelle v. Gamble, 429 U.S. 97, 104 (1976). Negligence alone is insufficient to state a claim for a violation of the Eighth Amendment. See Estelle, 429 U.S. at 106; Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000). In other words, "not every lapse in prison medical care will rise to the level of a constitutional violation." Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). Rather, recovery under the Eighth Amendment is limited to those cases in which a prisoner can establish "deliberate indifference to serious medical needs." Estelle, 429 U.S. at 104; see also Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000); Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) ("Hathaway II"). At stake in this inquiry is whether the inmate was deprived of the "minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994); accord Wilson v. Seiter, 501 U.S. 294, 298 (1991); see also Estelle, 429 U.S. at 102, 105 (observing that the alleged conduct must be such that it is "repugnant to the conscience of mankind" or "incompatible with the evolving standards of decency that mark the progress of a maturing society") (citations omitted). Page 13

  Under Supreme Court precedent, the deliberate indifference standard consists of both an objective and subjective component. See Farmer, 511 U.S. at 832; Hathaway II, 99 F.3d at 553. For a serious medical need to meet the objective element, it must be "a condition of urgency, one that may produce death, degeneration, or extreme pain." Id. (citing Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)); accord Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516 (2002). Factors that are relevant in assessing the seriousness of the medical need include "`[t]he 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 v. Armstrong, 143 F.3d 698, 702 (2d Cir. 2002) (citation omitted and alteration in original).

  To meet the subjective element, the prisoner must demonstrate that the defendants acted with a "sufficiently culpable state of mind" in their treatment of the prisoner's medical needs. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) ("Hathaway I"); see also Hernandez, 341 F.3d at 144. A prison official need not expressly intend to inflict pain, but a plaintiff must establish that the official acted in a manner equaling criminal recklessness. See, e.g., Hathaway II, 99 F.3d at 553 (stating that "the prison official must know of and disregard an excessive risk to inmate Page 14 health or safety. A sufficiently culpable state of mind, "equivalent to criminal ***ILLEGIBLE TEXT*** is that the official, `knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that substantial risk of serious harm exists, and he must also draw the inference.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. ***ILLEGIBLE TEXT*** (quoting Hathaway II, 99 F.3d at 553 (quoting Farmer, 511 U.S. at 837).

  A plaintiff's disagreement with his treatment or a difference of opinion over the type or course of treatment does not support a claim of deliberate indifference. See Estelle, 429 U.S. at 107-08; Chance, 143 F.3d at 703; see also Brown v. Selwin, 250 F. Supp. 2d 299, 307 (S.D.N.Y. 1999) (noting that "mere disagreement with prison officials about what constitutes appropriate medical care does not state a cognizable claim under the Eighth Amendment" and that prison officials "have broad discretion in determining the nature and character of medical treatment afforded to inmates, and inmates do not have the right to the treatment of their choice" citations and internal quotations omitted), aff'd, 29 Fed. Appx. 762 2d Cir. 2002; Candelaria v. Coughlin, No. 91 Civ. 2978, 1996 WL ***ILLEGIBLE TEXT*** S.D.N.Y. Mar. 1, 1996) ("A difference of opinion between in inmate and medical professionals, or even among medical professionals themselves, as to the appropriate course of treatment does not in and of itself constitute an Eighth Amendment violation." (citation omitted). Page 15

  Swindell has described his skin condition as producing excessive itching, scratching, soreness from scratching, and cracked skin, appearing as "small paper-cut like lacerations on [his] legs" (Declaration of Ronald Swindell, undated ("Swindell Decl.", at 2) and affecting his arms and torso as well. He testified at his deposition that bleeding occasionally resulted from his cracked skin. He has described his calluses as "thick" and "painful." (Pl. Surreply Mem. at 6.)

  Both of Swindell's conditions were addressed at the July 24 consultation. Swindell's skin problem was not found to present the type of medical issue that required intervention by a dermatologist, and he 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. Swindell was also prescribed callus pads. Drs. Sohng and Supple have concurred in the opinion that treatment with ointments and pads is the accepted mode of treatment for the symptoms presented by Swindell.

  While fully crediting Swindell's assertions that his skin condition and calluses caused him pain and, in the case of his skin condition, shame, and noting his allegations that he was embarrassed to reveal the skin on his legs to others and experienced pain when walking around the entire facility, his medical conditions are not of such an urgent and substantially painful nature as Page 16 would satisfy the objective prong of the deliberate indifference standard. See Evering v. Rielly, No. 98 Civ. 6718, 2001 WL 1150318, at *9 (S.D.N.Y. Sept. 28, ***ILLEGIBLE TEXT*** "It is well established that more than minor discomfort or injury is required in order for a plaintiff to demonstrate a serious medical need.") (collecting cases).

  No significant limitation on Swindell's daily activities is evident from the record, and even drawing all inferences in Swindell's favor, Swindell's assertion that Dr. Supple failed to exam his calluses when asked and provided only four callus pads for Swindell's five calluses raises nothing more than a possible medical malpractice claim, if that, and such a claim is not actionable under section 1983. See, e.g., Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991). Accordingly, drawing all factual inferences in Swindell's favor, there are no genuine issues of material fact established by the record as to whether Swindell's medical conditions rise to the level of serious medical need required to establish a deliberate indifference claim, and Drs. Sohng and Supple, the medical Defendants who treated Swindell, are entitled to summary judgment. See Hathaway I, 37 F.3d at 66; Change, at 702.

  Moreover, even if there were genuine issues of material fact as to whether a significant medical need existed, Swindell has not established that Drs. Sohng and Supple, much less any of the Page 17 other Defendants, had the requisite state of mind to be held liable for deliberate indifference. See Wilson, 501 U.S. at 295 (observing that a plaintiff must show defendant "possessed a sufficiently culpable state of mind"); see also Hathaway I, 37 F.3d at 66.

  Swindell's primary complaints are, in essence, disagreements with the determinations of Drs. Sohng and Supple as to the proper method of treatment and the manner in which Dr. Supple arrived at his determination. Such disagreements do not, as stated above, give rise to constitutional violations. See, e.g., Brown, 250 F. Supp. 2d at 307. The record demonstrates that, throughout the relevant time period, Swindell was treated conservatively, in a medically appropriate manner, with ointment for his skin condition, and pads for his calluses. No evidence has been presented to suggest that the Defendants believed that their treatment was inappropriate, nor is there any indication that the Defendants were ever conscious of any excessive risk as to Swindell. See Hathaway I, 37 F.3d at 66 ("The official must know of and disregard an excessive risk to [an] inmate's health or safety; the official must 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.").

  Further, Swindell's suggestion that every other facility where he has been detained removed his calluses does not demonstrate that the medical treatment Swindell received while at Page 18 Fishkill was inappropriate or that the Defendants had a sufficiently ***ILLEGIBLE TEXT*** state of mind. Indeed, mere negligence or allegations of misdiagnosis or medical malpractice do not state a valid Eight Amendment claim. See Estelle, 429 U.S. at 106 & n. 14 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Likewise, a prisoner's disagreement with the diagnostic techniques or forms of treatment utilized by prison medical personnel does not give rise to a cognizable Eight Amendment claim: "A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment." Id. at 107; see also Hodge v. Coughlin, No. 92 Civ. 622 (LAP), 1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994), aff'd, 52 F.3d 310 (2d Cir. 1995). Nor is a denial of consultation with a specialist in itself an act of medical indifference. See, e.g., Marshall v. Strack, No. 96 Civ. 6789 (DAB), 1998 WL 118167, at *3 (S.D.N.Y. Mar. 16, 1998) "At most, the failure to refer Plaintiff for an outside dermatologist consultation amounts to negligence or inadequate treatment."), aff'd, 173 F.3d 845 (2d Cir. 1999); see also Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001) "[D]isagreements 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 Eight Amendment."). Page 19

  In sum, although Swindell disagreed with the medical personnel at Fishkill as to the appropriate treatment, the medical Defendants made a good faith professional effort to assist him and Swindell has offered no facts from which it could be inferred that Drs. Sohng or Supple, or any other of the Defendants, acted with a conscious disregard of a substantial risk of serious harm to him. Swindell has not presented any evidence to establish that the Defendants had the requisite state of mind sufficient to support the subjective prong of a constitutional claim of deliberate indifference.

  In the absence of evidence that Swindell's condition was sufficiently serious to satisfy the first prong of the deliberate indifference standard and in the absence of evidence that either Drs. Sohng or Supple, or any other of the Defendants, possessed a sufficiently culpable state of mind even if Swindell's treatment were constitutionally deficient, summary judgment in the Defendants' favor is warranted.

  C. No Cause of Action Has Been Stated Against the Non-Treating Defendants

  For liability to exist under 42 U.S.C. § 1983, a defendant must be personally involved in the underlying conduct or events, in that he or she "subjects, or causes [the plaintiff] to be subjected" to an alleged constitutional violation. 42 U.S.C. § 1983; see also Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Page 20 Cir. 2001). Personal liability cannot be imposed on a state official under a theory of respondeat superior. See Monell v. New York City Dep't of Soc. Servs., 486 U.S. 658, 694 (1978); see also Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003) (noting that "supervisor liability in a § 1983 depends on a showing of some personal responsibility, and cannot rest on respondeat superior") (citation omitted), cert. denied, ___ S. Ct. ___, 2005 WL 86620 (Jan. 18, 2005).

  In the Second Circuit, for purposes of asserting § 1983 violation, the personal involvement of a supervisory official may be established when:

(1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] 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 865, 873 (2d Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); see also Hernandez, 341 F.3d at 145. Page 21

  1. Dr. Klyszejko and Cole

  The complaint asserts claims against two non-treating medical defendants, Dr. Klyszejko and Cole. Swindell has alleged that Dr. Klyszejko, as "Assistant Facility Health Services Director" at Fishkill, while "in charge" of the medical department, did not come to see him as requested. (Compl. at ¶ IV.) Swindell further alleged that Cole, in her capacity as Deputy Superintendent of Health at Fishkill (see Compl. at ¶ IV) did not treat him, but, nevertheless, did not take "corrective actions" recommended by the "Grievance Department." (See Swindell Dep., at 43-47.) There has been no factual showing that there has been the requisite personal involvement to sustain a medical indifference claims as against these Defendants.

  Dr. Klyszejko and Cole had only a limited role in the overall course of Swindell's treatment. In Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003), the Second Circuit upheld the dismissal of claims against the supervisory doctor responsible for overseeing the medical staff at Sing Sing Correctional Facility for lack of personal involvement where the evidence showed, as here, that the doctor "never examined or diagnosed plaintiff?," and "was not directly responsible . . . for scheduling treatments or procedures; or for following up on issues such as physical therapy. . . ." Hernandez, 341 F.3d at 145. As in Hernandez, there is no evidence here that the supervising doctors "had notice of, instituted, or Page 22 became aware of any unconstitutional policy, practice or act," since, for the reasons set forth below, no such constitutional violations have been established. Id. Likewise, there is no evidence here that Drs. Klyszejko and Cole were grossly negligent in supervising their subordinates. See id.

  With respect to Dr. Klyszejko specifically, his alleged inaction following Swindell's request that Dr. Klyszejko come see him does not provide any basis to hold Dr. Klyszejko personally liable. See, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 507 (S.D.N.Y. 2002). With respect to Cole, Swindell argues that "it's her job to make sure that every inmate is to receive ad[e]quate medical care," as she is the supervisor of "all staff members." (Swindell Decl., at 4.) Cole's mere supervisory role is not sufficient, for the reasons set forth above, to establish her personal liability under § 1983.

  Accordingly, because there is no evidence indicating that Drs. Klyszejko and Cole were personally involved in any of the treatment determinations at issue in this case, and because, for the reasons set forth above, none of those Defendants supervised by either Dr. Klyszejko or Cole have violated Swindell's constitutional rights, the medical indifference claims against them fail and summary judgment in their favor is warranted. Page 23

  2. Goord, Malone, Eagan, Mazzuca and Cunningham

  Swindell has also asserted medical indifference claims against five non-medical supervisory Defendants, Goord, Malone, Eagan, Mazzuca and Cunningham. There is no evidence that these Defendants were involved in Swindell's medical treatment. Rather, it has been alleged that these Defendants were involved as supervisors.

  Swindell has named Goord, the Commissioner of DOCS, as a Defendant and has testified at his deposition that his only contact with Goord consisted of several letters that he purports to have written to Goord and replies to two of those letters that he received from Goord's representative. Correspondence to and from Goord does not demonstrate personal involvement on the part of defendant Goord. Neither a "[r]eceipt of letter or grievances," Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 WL 731691, at *7 (S.D.N.Y. Apr.23, 2002) (collecting cases), nor "allegations that an official ignored a prisoner's letter," Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1233 (S.D.N.Y. 2003), is sufficient to establish personal involvement for purposes of Section 1983. Similarly, any referral by Goord of letters received from Swindell to a representative who, in turn, responded, with nothing more, does not establish personal involvement. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (concluding that there was no personal involvement where official received two letters from a Page 24 prisoner, and referred the first to the official responsible for a decision, and replied to the second by stating that a decision had been rendered); see also Garvin v. Goord, 212 F. Supp. 2d 123, 126 (W.D.N.Y. 2002); Amaker v. Goord, No. 98 Civ. 3634 (JGK), 2002 WL 523371, at *16 (S.D.N.Y. Mar. 29, 2002). Accordingly, there are no facts on the record that establish the personal involvement of Goord in the constitutional violations alleged here.

  There are likewise no facts on the record which would establish the personal involvement of Malone. The only allegation articulated at Swindell's deposition relating to Malone is a conclusory statement that the Inspector General failed to respond to letters Swindell purportedly wrote concerning his medical treatment at Fishkill. The mere receipt of letters is insufficient to establish personal involvement. See, e.g., Atkins, 251 F. Supp. 2d at 1234 (observing that, "if mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability.") (citing Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002)).

  As to Eagan, Swindell has alleged that Eagan, as Director of the IGRC in Albany, should be "responsible" and "held accountable" for his lack of medical care at Fishkill because Eagan upheld the denials of Swindell's grievances that were filed at Fishkill Page 25 and appealed to CORC. (Swindell Dep., at 36-37, 39; see also id. at 43.)

  Swindell filed grievances relating to his medical treatment at Fishkill and appealed some or all of the grievances to CORC. The disposition of Swindell's six grievances appealed to CORC and identified above were all signed by Eagan. Although an adjudicating role will not insulate a supervisor "from responsibility for allowing the continuation of allegedly unlawful policies within his supervisory responsibility," McKenna v. Wright, 386 F.3d 432, 438 (2d Cir. 2004), a mere response to a grievance, by itself, is not sufficient to establish personal involvement for purposes of § 1983. See, e.g., Joyner, 195 F. Supp. 2d at 506 ("The fact that Superintendent Greiner affirmed the denial of plaintiff's grievance — which is all that is alleged against him — is insufficient to establish personal involvement"); see also Madison v. Mazzuca, No. 02 Civ. 10299 (RWS), 2004 WL 3037730, at *10 (S.D.N.Y. Dec. 30, 2004).

  The only allegations against Mazzuca and Cunningham are Swindell's assertions that they did not address his written concerns about his medical care at Fishkill. Swindell lost the letter that he allegedly wrote to Mazzuca and cannot say that Mazzuca "directly did anything" that would constitute deliberate indifference to his serious medical needs. (Swindell Dep., at 47-48.) The sole allegation against Cunningham is Swindell's Page 26 conclusory statement to the effect that Cunningham was the "one who oversees" everything at Fishkill and saw him "walking down the street" but did not address his concerns about his medical needs. (Swindell Dep., at 49.) As noted earlier, the mere receipt of correspondence does not establish personal involvement on the part of a defendant in circumstances such as those present here, and a defendant may not be found to be personally involved based only on his or her role as a supervisor. See Colon, 58 F.3d at 874 (explaining that "the bare fact that [defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim").

  In the absence of any facts tending to show the personal involvement of Goord, Malone, Eagan, Mazzuca or Cunningham in the underlying constitutional violations, and as, for the reasons set forth above, there is no evidence of any such violations, summary judgment in their favor is warranted.*fn4 Page 27

  Conclusion

  For the reasons set forth above, the Defendants' motion for summary judgment is granted and the complaint dismissed.

  It is so ordered.


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