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
 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
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 ,
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
(Defs.' Notice of Motion at 2.)
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[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).
"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
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
We hold . . . that a prison official cannot be found