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August 22, 2005.

ANTHONY DEPERIO, et al, Defendants.

The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge



  This is an action pursuant to 42 U.S.C. § 1983, brought by plaintiff acting pro se, in which he contends that defendants violated his right as guaranteed by the Eighth Amendment to the U.S. Constitution. Now before the Court is defendants' motion [26] for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the application is granted. BACKGROUND

  At all times relevant to this lawsuit plaintiff was an inmate at Wyoming Correctional Facility ("Wyoming"). On January 11, 2003, while working on the prison farm, plaintiff was allegedly kicked in the head by a cow. Between January 11, 2003, and May 9, 2003, he was seen on numerous occasions by the facility medical staff, including both doctors and nurses, for complaints of headaches. However, although plaintiff was examined and prescribed different pain medications, his complaints of headaches persisted.

  On May 9, 2003, plaintiff was seen by Nurse Mohring ("Mohring") for his recurring complaint of headaches. Mohring told plaintiff that he would be seen by a doctor, and she listed his need to see a physician as a level three, with level one being the most serious, and level three the least serious. On May 10, 2003, plaintiff was seen by an optometrist with regards to whether his vision was causing his headaches, and was subsequently issued glasses. Plaintiff was also seen by two nurses, Nurse Wheeler ("Wheeler") on May 12, 2003, and Nurse Almeter ("Almeter") on May 27 and 29, 2003, regarding his headaches. Plaintiff filed a grievance dated May 28, 2003, in which he complained about the delay in being seen by a doctor. On June 4, 2003, the Inmate Grievance Resolution Committee ("IGRC") found the grievance to be beyond the scope of the IGRC mechanism, and on June 5, 2003, plaintiff appealed to the Superintendent of Wyoming. On June 9, 2003, Deputy Superintendent Elmore ("Elmore") denied the appeal, and on June 10, 2003, plaintiff appealed the Deputy Superintendent's decision to the Central Office Review Committee ("CORC"). On July 9, 2003, CORC issued a decision in which it upheld Elmore's decision, and asserted that plaintiff was receiving proper medical care, noting that he had eyeglasses on order, and was receiving pain medication. CORC further commented that the monetary compensation sought by plaintiff is not a remedy through the inmate grievance mechanism. Plaintiff was, in fact, seen by a medical doctor, Dr. DePerio ("DePerio") on June 9, 2003, and upon examining plaintiff, DePerio prescribed pain medication for him.

  Defendants filed their Notice of Motion on May 19, 2004 [26], and served plaintiff on the same day by U.S. Mail. The document contained the following language pursuant to Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001):
PLEASE NOTE that pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, when a motion for summary judgment is made and properly supported, you may not simply rely upon your complaint but you must respond, by affidavits or as otherwise provided in that rule, setting forth specific facts showing that there is a genuine issue of material fact for trial. Any factual assertions arising out of the exhibits attached to defendant's counsel's affidavit will be accepted by the District Judge as being true unless you submit affidavits or other documentary evidence contradicting those assertions. If you do not so respond, summary judgment, if appropriate, may be entered against you. If summary judgment is granted against you, your case will be dismissed and there will be no trial.
NOTE also that Local Rule 56 of the Western District of New York requires that you must include a separate short and concise statement of any material facts as to which you contend there exists a genuine issue. In the absence of such a statement, all material facts set forth in defendant's Rule 56 Statement will be deemed admitted.
(Defs.' Notice of Motion at 2.)


  Summary Judgment

  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).

  The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

  Eighth Amendment

  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted." U.S. CONST. amend. VIII. The Eighth Amendment has also been held to apply to conditions of incarceration, including administration of medical care.

We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wonton infliction of pain" Gregg v. Georgia, 482 U.S. 153, 173 (1976), proscribed by the Eighth Amendment. This is true whether the indifference is manifested by the prison doctors in response to the prisoner's needs, or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). In addition, the Supreme Court has held:
Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, "sufficiently serious[.]" Wilson v. Seiter, 501 U.S. 294, 298 (1991). . . . The second requirement follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment." To violate the Cruel and Unusual Punishments Clause, a prison official must have a "sufficiently culpable state of mind." Wilson, 501 U.S. at 297.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The court further stated:
We hold . . . that a prison official cannot be found liable ...

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