United States District Court, S.D. New York
February 3, 2005.
RONALD SWINDELL, a/k/a IDON JTAJ, Plaintiff,
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.
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.
The Medical Allegations
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 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
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 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
***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.
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.
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
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
brought on the underlying claims. The PLRA provides, in pertinent
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
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
defense of non-exhaustion may be waived if not raised by a
B. The Standard For Deliberate Indifference Has Not Been
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).
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
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).
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
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
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
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
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.").
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
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
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,
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
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.
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
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.
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
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
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
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
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
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
For the reasons set forth above, the Defendants' motion for
summary judgment is granted and the complaint dismissed.
It is so ordered.