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February 3, 2005.

JOHN SUPPLE, M.D., et al., Defendants.

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.

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 ...

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