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United States District Court, S.D. New York

December 6, 2005.

EDWARD BROWN, Plaintiff,

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


The defendants Dr. Lester Wright, Chief of Medical Services for the New York State Department of Correctional Services ("Dr. Wright"), Dr. Carl Koenigsmann, Chief of Medical Services at Green Haven Correctional Facility ("GHCF") ("Dr. Koenigsmann"); Dr. Harry Mamis, a physician employed at GHCF and primary medical provider ("Dr. Mamis"), and Dr. Steven Weinstein, a physiatrist employed part-time at GHCF ("Dr. Weinstein") (collectively, the "Defendants") have moved for summary judgment under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff pro se Edward Brown ("Brown"), an inmate at GHCF. For the reasons set forth below, the motion is granted.

Prior Proceedings

  Brown filed his complaint on January 21, 2004 alleging violations of Section 1983 and deliberate indifference in medical care involving his absence of a leg. The leg was lost as a result of an accident in 1988, when Brown was 14 years old. Brown has asserted that a wheelchair was withheld from him improperly for a period of about eleven months in 2003, that surgery on his hip to cure a bone spur was delayed unreasonably, that he has been denied wrongfully from placement in Green Haven Unit for the Physically Disabled ("UPD") and that he has been denied effective pain medication. These allegations are made under the Eighth Amendment and Americans With Disabilities Act ("ADA").

  Discovery was had and the notice to pro se litigant and of the motion for summary judgment was given, and the instant motion was heard and marked fully submitted on August 16, 2005.

  The Facts

  Brown lost his leg due to a subway accident in 1988 at the age of 14 (Tr. 43-44). He was able to walk well with a prosthesis. Over the years, he has had increased difficulty ambulating with a prosthesis due to the shortness of his leg stump and the consequent relatively heavy weight of the artificial limb (Tr. 37-38). He has not expressed a wish to have the surgery which would be involved in preparing the hip for a possibly nimbler prosthesis (Tr. 31, 85).

  Brown has compensated by walking effectively with crutches (Tr. 13, 28). He does not like using the wheelchair he was provided in December 2003 full time but prefers walking with crutches for modest distances, including for meals and recreational purposes (Tr. 11, 18-20). Brown weighs 160 pounds, though 6 feet tall (Tr. 33), in part as a result of not being wheelchair-bound full time. Brown has acknowledged that GHCF staff have on very many occasions examined and treated him (Tr. 29, 70, 73-74, 76, 78, 86, 92); have prescribed pain mediation to him (Tr. 13, 47, 70, 75-76, 86) (he is presently taking Tylenol 3) (Tr. 6-7); have had his condition evaluated by specialists, including a physiatrist and orthopedic surgeon (Tr. 73-74, 76, 78); have provided x-rays and physical therapy (Tr. 11, 17, 29, 74); have provided him with a wheelchair (through Dr. Weinstein by way of referral from Dr. Mamis) in December 2003 with which Brown is comfortable (Tr. 10, 17, 19, 92); and have arranged for and had performed surgery on his hip bone spur (Tr. 78-80). Brown also acknowledged that he has "civil" communication with his medical provider, Dr. Mamis (Tr. 28-29), and that Dr. Mamis has referred him to specialists (Tr. 73, 92).

  Brown was asked at his deposition to state his complaints against each of the four Defendants. As to Dr. Wright, Brown mentioned speaking with Dr. Wright two or three times while housed at Clinton Correctional Facility in 2002 and writing to Dr. Wright approximately seven letters on his treatment. When asked to produce this correspondence, Brown stated that he had sent his copy of the same to an attorney. Brown alleged that Dr. Wright did not respond substantively to his communications at Clinton, except to have staff advise Brown that the records showed he was receiving proper care (Tr. 62-66). He further claims that he has written Dr. Wright two to three times while at GHCF about the lack of proper pain medication. Finally, Brown linked Dr. Wright to his non-placement in UPD (Tr. 93). He acknowledged not having submitted a grievance against Dr. Wright (Tr. 92-96).

  As to Dr. Koenigsmann, Brown testified that he has suffered from the failure of the facility to provide proper pain medication. He claims to have written Dr. Koenigsmann "several letters" but has not produced the letters (Tr. 96). He did not recall filing a grievance against Dr. Koenigsmann (Tr. 96-98).

  Brown testified that his complaint against Dr. Mamis focuses on the question of whether proper pain medication was afforded him (Tr. 98-100). He acknowledged that Dr. Mamis would refer his continuing complaints to Dr. Weinstein (Tr. 101). As to Dr. Weinstein, Brown's complaint derives from his temporary denial of a wheelchair and the question of whether proper pain medication was made available to him (Tr. 100-01).

  Dr. Mamis has submitted an affirmation in support of the motion for summary judgment, stating: that Brown was not provided with a wheelchair at first because walking was believed to be better for his overall health; that Dr. Mamis had not wanted to provide him with a narcotic-based pain medication; that he has not been placed in the UPD because Brown can function day-to-day in general population facilities; and that prescription of Elavil to Brown on a trial basis by Dr. Weinstein was appropriate (Affirmation of Dr. Mamis, ¶¶ 3, 4, 6, 7).

  During 2003, Brown filed four grievances at GHCF pertaining to his interactions with medical personnel.

  1. February 11: Brown cited having written to Dr. Koenigsmann about pain in the lower back and right hip, hearing "nothing" in response for two weeks.

  Brown stated that in a January 16 visit with Dr. Mamis, who had been designated Brown's medical provider, he requested a wheelchair for "temporary" use due to his leg "lock[ing] up" on him when he would "walk too much," as well as a change in medication. He claimed that Dr. Mamis "was not trying to hear" what he was saying, denied saying to Dr. Mamis that it was not needed, and asserted that Dr. Mamis stated Brown "would have a better chance of banging [his] head on the floor" if Brown expected to have his medication changed. Brown also mentioned falling ("tripped over my [double celled roommate's] cord") on January 24, bruising his back and hip and requested a "new medical provider" as well as a change in medication.

  The grievance committee ("IRGC") stated in response that Brown was entitled to "proper medical care" and a "second opinion," action being "beyond the [purview] of this committee." The superintendent denied the grievance as "not medically indicated," citing Brown's evaluation by medical staff "on many occasions since his arrival [on] [1/9/03," his having been referred to a specialist on ambulatory needs, the prescription of Brown of pain medication, and his having on January 28 been given a single cell on "the flats," i.e., the first floor.

  The Central Office Review Committee ("CORC"), on a "second appeal," upheld the superintendent's decision, citing Brown's visits to specialists, the surgical procedure performed in August, and the physician's denial of having made improper comments. See Record of Grievance, Aff. Counsel, Ex. B.

  2. March 5: Brown cited having challenged Dr. Mamis on the prescription of Elavil, stating that other medical personnel and the "medication dictionary" regarded that medication to be for "stress disorder and sleep discomfort." In his appeal, he acknowledged having been taken off Elavil. He requested a "new medical provider."

  The grievance committee found Brown's request to be "beyond our purview." The superintendent denied the grievance citing two visits by Brown with a physiatrist and the medications prescribed. CORC upheld the superintendent's decision, citing the prescription of alternate medication and his visit with an orthopedist. See Record of Grievance, Aff. Counsel, Ex. C. 3. March 6: Brown cited diagnosis by the physiatrist of a "bone in my lower back on top of my hip," and requested a new medical provider, a wheelchair, and $1 million "in damages [for] pain, suffering and emotional trauma." In his appeal to CORC on April 29, Brown acknowledged that he was "not in much pain" but wanted the "bone removed."

  The grievance committee recommended that the matter be reviewed by the superintendent as being beyond the committee's purview. The superintendent determined that Brown's medical needs were being met through visits to the physiatrist and the current provider's "actively monitor[ing]" his condition. No "medical necessity" for a wheelchair was found. Further, "financial rewards" were determined not to be available through the grievance process. The superintendent's decision was upheld by CORC, which cited Brown's upcoming visit with an orthopedist. (See Record of Grievance, Aff. Counsel, Ex. D.)

  4. March 10: Brown cited falling on ice while in the prison yard on March 10 and being seen by a non-defendant physician, with "nothing" being done due to the absence of a fracture though his "stump was shaking for over two hours." Brown requested examination "by another doctor because there is a conflict of interest between Dr. Mamis and me [and] he is not going to get me proper medical treatment." In his later appeal to CORC, Brown claimed that his prescribed pain medication, Ultram, "is not working anymore."

  The grievance committee cited Brown's being seen by a physiatrist. The superintendent denied the grievance on the basis of evaluations by GHCF medical staff, Brown's regular attendance at a physiatry clinic and evaluations by a consulting specialist. CORC upheld the superintendent's decision, citing Brown's receipt of "medication for his injury" and the unavailability of monetary damages through the grievance process. (See Record of Grievance, Aff. Counsel, Ex. E.)

  Summary Judgment Is Appropriate

  Under Rule 56, Fed.R.Civ.P., summary judgment is appropriate if the pleadings and affidavits "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." See, e.g., Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986); Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 57 (2d Cir. 1985). Summary judgment is not a "disfavored procedural shortcut" but is an integral part of the Federal Rules' goal of securing the "just, speedy and inexpensive determination of every action." See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548 (1986); Anderson v. City of New York, 657 F. Supp. 1571, 1576 (S.D.N.Y. 1987); Knight v. U.S. Fire Insurance Co., 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987).

  "[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." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985). When the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, the opposing party then must show that there is such an issue. In doing so, the opposing party must rely on more than mere speculation or conjecture. Knight, 804 F.2d at 11; see Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995); Trans Sport v. Starter Sportswear, 964 F.2d 186, 188 (2d Cir. 1992). Here, Brown has failed to raise a material issue of fact.

  Brown Has Not Been Deprived Of A Constitutional Right

  To prevail in this Section 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that such deprivation occurred under color of state law. See 42 U.S.c. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988); Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 WL 714878, *4 (S.D.N.Y. Nov. 17, 1997). Here, Brown has alleged that his rights under the Eighth Amendment have been violated because Defendants failed to provide him with his medication of choice, delay in surgery and provision of a wheelchair, and have denied him entry to UPD.

  The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. Amend. VIII. To establish an Eighth Amendment claim, Brown must prove "deliberate indifference to [his] serious medical needs." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied 513 U.S. 115 (1995) (quoting Estele v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285 (1976)).


The deliberate indifference standard includes both an objective and subjective component. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). In objective terms, the alleged deprivation must be sufficiently serious. Hathaway, 37 F.3d at 66. A serious medical condition exists where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance, 143 F.3d at 701-02 (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373-74 (7th Cir. 1997)). "Factors that have been considered include `the 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.'" Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).
Subjectively, the defendant "must act with a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66. An official acts with the requisite degree of deliberate indifference when that official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw that inference." Farmer v. Brennan, 511 U.S. 825, 837, 128 L.Ed.2d 811, 114 S.Ct. 1970 (1994). Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, *8-*10 (S.D.N.Y. Jan. 26, 1999).
  Further, "it's the particular risk of harm faced by a prisoner due to challenged deprivation of care, rather than the prisoner's underlying medical condition considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).

  Brown, by his own admission, has received extensive medical care, examinations by GHCF staff and specialists, physical therapy, surgery, pain medication, and provision of a wheelchair.

  According to Brown, he requested a wheelchair and different medication, but these requests were denied or satisfaction was delayed. However, mere disagreement over the proper course of treatment does not create a constitutional claim. Rather, so long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).

  The same is true with respect to Brown's claim that he should be given different medication. Inmates do not have the right to treatment of choice. See Chance, 143 F.3d at 703; Dean, 804 F.2d at 215. This principle is particularly strong given the obvious desire not to have Brown provided with a narcotic. Provision of Elavil was appropriate on a trial basis. (See Mamis Aff., ¶ 6 and cite at www. under Elavil ("Elavil has also been found to be helpful for treating fibromyalgia [chronic condition causing pain, stiffness, and tenderness of the muscles, tendons, and joints] and symptoms related to chronic pain")). Accordingly, Brown's claims that his rights were violated because he was not given his treatment of choice on demand are dismissed.

  The deliberate indifference standard includes both an objective and subjective component. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). The alleged deprivation must be sufficiently serious. Hathaway, 37 F.3d at 66. Assuming that Brown's medical condition is sufficiently serious, which Defendants do not concede given that the measure is the risk of harm rather than the underlying condition, Brown must still allege that the Defendants have acted "with a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66.

  Brown's papers and testimony establish that the Defendants have not known of and disregarded "an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994). It has been demonstrated that the Defendants are (1) aware of his condition; (2) have provided treatment on numerous occasions; (3) have referred him to specialists; and (4) have since December 2003, addressed his concerns by providing him with a wheelchair for part-time use. Accordingly, because the Defendants, by Brown's admission, are providing him with substantial treatment, including examinations and treatment by specialists, his claims that the Defendants were deliberately indifferent to his medical needs are dismissed.

  The Second Circuit has held that when an inmate alleges temporary interruption of otherwise continuous treatment of even the most serious medical condition, the determination of whether the harm suffered was objectively serious must focus on the harm caused by the interruption, not by the underlying condition.


When the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in "objective terms, sufficiently serious to support an Eighth Amendment claim." Chance, 143 F.3d at 702.
Smith, 316 F.3d at 185. Thus, in Smith, the Circuit sustained a jury verdict finding no substantial injury where plaintiff alleged that he was deprived prescribed HIV-medication for two separate periods of seven and five days, respectively. In Graham v. Wright, No. 01 Civ. 9613 (NRB), 2004 WL 1794503 (S.D.N.Y. Aug. 10, 2004), where plaintiff alleged that prison medical staff failed to diagnose Hepatitis C for several years, the court granted summary judgment because plaintiff could not show that his condition would have benefitted from earlier treatment. "[B]ecause the plaintiff suffered from a delay in treatment, rather than a complete lack of treatment, the objective element must be satisfied by harm that resulted from the delay." Id. at *15 n. 7.

  Several courts have held that the temporary deprivation of treatment for pain as Brown alleges does not rise to the level of constitutional significance. See Rodriguez v. Mercado, No. 00 Civ. 8588 (JSRFM), 2002 WL 1997885, *6-*7, *24 (S.D.N.Y. Aug. 28, 2002) (no serious injury where plaintiff claimed that excessive force caused bruising and headaches, was given Tylenol several hours later and saw doctor next day); Henderson v. Doe, No. 98 Civ. 5011 (WHP), 1999 WL 378333, *2, *6-*7 (S.D.N.Y. Jun. 10, 1999) (improper wrapping of splint for broken finger and failure to refer to specialist not constitutionally serious injury); Veloz v. New York, 35 F. Supp. 2d 305 (S.D.N.Y. 1999) (foot pain not constitutionally serious); Rush v. Artuz, No. 00 Civ. 3436 (LMM), 2004 WL 1770064, *33-*34 (S.D.N.Y. Aug. 6, 2004) (where corrections officer put emergency sick call request in garbage, no constitutional violation where plaintiff seen the next day by medical staff on sick call).

  In this case, the consequences of any delay in attention by Dr. Mamis did not involve a significant aggravation in Brown's condition. Indeed, Brown has acknowledged that an array of pain medication has been provided to him, that pre-operative pain caused by the bone spur was not acute (see Ex. D., appeal to grievance by Brown signed on April 25, 2003, saying "I'm not in much pain.") and that he has done very well for a long time without a wheelchair and that the less obtrusive means of physical therapy was attempted prior to surgery. Hence, under the authorities cited above, no deliberate indifference has been shown.

  Brown's submission in opposition to the Defendants' motion fails to provide a basis to deny the relief sought, reflecting no more than a disagreement about his care, not deliberate indifference to it. To the extent that the opposition seeks to amend the complaint by adding new and mostly unexhausted categories of claims, it is inappropriate.

  Brown has claimed in opposition that he filed a pre-litigation grievance pertaining to denial of an inhaler not cited in the Defendants' initial memorandum of law, such grievance having been filed on March 24, 2003. (See Statement of Facts, ¶ 8.) He reiterated his difficulties with crutches, citing to a report dated October 19, 2004, on a post-litigation grievance, which concluded that Brown was not using his crutches correctly (see Statement of Facts, ¶ 13). Additionally, he complained about his needing a wheelchair before his hip surgery, while Dr. Mamis approved one for him only after the surgery (see Statement of Facts, ¶ 17). Brown has referred to a grievance submitted on February 2, 2005 concerning the prescription of Ultram and "anti-swallowing" medication as pain relievers by Drs. Mamis and Weinstein (see Statement of Facts, ¶ 18 and p. 7).

  Brown has claimed: that the Defendants have made an incomplete investigation of his failure to recover fully from the 1988 accident (see Statement of Facts, ¶¶ 18-21); that shoulder patches provided to him by Dr. Weinstein early in 2005 were not effective in remedying shoulder joint pain (see Statement of Facts, ¶ 22); that Dr. Mamis failed to treat him for pain after he was injured in a road accident in early February 2006 (see Statement of Facts, ¶¶ 23-24); that Drs. Mamis and Weinstein refused to arrange for Dr. Weinstein to see him from February 2004 to January 2005 in retaliation for the present lawsuit (see Statement of Facts, p. 7); that the Defendants failed to treat headaches which commenced in November 2004 (see Statement of Facts, p. 8); that the Defendants not placing him in the UPD continues to be harmful as exemplified by his spilling coffee on himself during March 2005 in his improperly equipped cell (see Statement of Facts, p. 8); and that non-defendant Corrections Officer P. Todriff denied him assistance in using the law library and in typing legal papers (see Statement of Facts, pp. 10-11).

  As reflected in a supplemental affirmation of counsel, Brown failed to grieve, through to the level of the CORC, the incidents surrounding his new assertions, with the exception of the alleged roadside injuries in February 2005 (see Grievance dated Mar. 1, 2005; see Supplemental Affirmation of Counsel, Ex. A). See Hemphill v. New York, 380 F.3d 680, 682 (2d Cir. 2004) (describes New York's three level exhaustion process for inmates).

  Brown's assertions again reflect mere disagreements with his care rather than deliberate indifference and comprise an improper attempt to amend the complaint with largely unexhausted claims.

  The question of an inhaler is not part of the complaint, which focuses on Brown's hip and shoulder pain. Nor was any such grievance appealed to the CORC. See Supplemental Affirmation of Counsel.

  The question of effective use of crutches does not refute the propriety of crutches, as determined by the medical staff, for Brown. Nor did Brown exhaust his administrative remedies through citation to the October 2004 report. See Supplemental Affirmation of Counsel.

  Brown's assertions reflect disagreement with his care as reflected in the prior denial of his March 6, 2003 grievance. In addition, Brown has demonstrated no damages resulting from his allegation that a wheelchair was provided only after his hip surgery — and not prior to it as he claims he had requested.

  The disagreement with his prescribed medication was not exhausted as to the additional medication dispute. See Supplemental Affirmation of Counsel.

  The question of shoulder patches presents a new claim, the raising of which comprises an impermissible attempt to amend the complaint without a motion as required by Rule 15(a), Fed.R.Civ.P. In any event, any amendment reflecting this new claim would be futile in that the claim presents at most a mere disagreement about care, and Brown has not exhausted administrative remedies on this issue. See Supplemental Affirmation of Counsel showing failure to exhaust; Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962) (leave to amend may be denied where proposed amendment would be futile).

  A claim alleging failure by Dr. Mamis to treat Brown after a February 2005 accident, which is the "retaliation" and "headaches" claim, is a new matter, and Brown's effort to interject it comprises an improper attempt to amend the complaint. In any event, such an amendment would be futile given Brown's not having exhausted administrative remedies on these claims other than with respect to the February 2005 accident. See Supplemental Affirmation of Counsel. The assertion concerning the spilling of coffee does not refute the Defendants' demonstration that Brown fails to meet the criteria for placement in UPD. Further, Brown has failed to exhaust his administrative remedies if he believes that new factors can be presented to support his admission to UPD. See Supplemental Affirmation of Counsel.

  Brown's claim against Corrections Officer Todriff concerning use of the law library and typing of legal documents comprises an improper attempt to amend the complaint and add a new party.

  For the foregoing reasons, the Defendants' motion for summary judgment is appropriate.

  The Defendants Have Qualified Immunity

  "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). "Even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was `objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act." Lennon, 66 F.3d at 420. The Supreme Court has explained that the qualified immunity standard "gives ample room for mistaken judgments by protecting `all but the plainly incompetent or those who knowingly violate the law' . . . this accommodation for reasonable error exists because `officials should not err always on the side of caution' because they fear being sued." Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534 (1991).

  Moreover, the Supreme Court has stated that "there is a strong public interest in protecting public officials from the costs associated with the defense of damages actions. That interest is best served by a defense that permits insubstantial lawsuits to be quickly terminated." Crawford-El v. Britton, 523 U.S. 574, 590, 118 S.Ct. 1584 (1998). Thus, the defense of qualified immunity should be resolved "at the earliest possible stage in litigation." Hunter, 502 U.S. at 227 (citations omitted).

  None of the Defendants have violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; Lennon, 66 F.3d at 420. Brown's allegations establish that he has received extensive treatment, examinations by experts, and appropriate medications. Moreover, the Defendants have submitted evidence that their actions were objectively reasonable. While some courts have found a party to have a right to a wheelchair in particular circumstances, such cases have not involved a request for a part-time wheelchair for someone who has been able to ambulate on their own for a long period of time. See Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993) (paraplegic's need to have access to a wheelchair); Cummings v. Roberts, 628 F.2d 1065 (8th Cir. 1980) (inmate had to crawl without wheelchair); Gadson v. Goord, No. 96 Civ. 9544 (RCC), 2000 WL 328879 (S.D.N.Y. Mar. 28, 2000) (issue was type of wheelchair). Here, Brown continued at GHCF to ambulate as he had done for many years without a wheelchair. He was outfitted in December 2003 with a wheelchair for his part-time use and has testified to being comfortable with it.

  Finally, Brown has not established a right to placement in UPD. That unit is designed for inmates requiring 24 hour nursing care. Since Brown is not prevented from engaging in the activities of daily living, including ambulating to mess hall and recreation while residing in general population, he simply is not a proper candidate for UPD and his non-placement there is not a constitutional violation. See Veloz v. State of New York, 339 F. Supp. 2d 505, 527-28 (S.D.N.Y. 2004); see also Aviles v. Scully, No. 87 Civ. 160, 1988 U.S. Dist. LEXIS 15515, *16-17 (S.D.N.Y. Aug. 17, 1988). Brown Has Not Exhausted His Claims

  As amended by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a) states that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life . . ." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983 (2002). The PLRA's exhaustion requirement is mandatory. "Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Id. at 524. "[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise." Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819 (2001).

  Here, Brown did not grieve against Dr. Wright, Dr. Koenigsmann, nor did he grieve his non-placement in UPD.

  The Claims Against Dr. Wright Are Dismissed

  A supervisory official may not be liable under 42 U.S.C. § 1983 on the basis of respondent superior, the fact of supervisory capacity alone. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Supervisors are not liable for the isolated failures of their subordinates, but only for systematic lapses or instructions authorizing misconduct. See Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998). Here Brown has failed to show that Dr. Wright was responsible for his day-to-day medical treatment or that he in any way impeded Brown's access to effective treatment. While Brown has alleged having communicated with Dr. Wright, these communications largely took place before Brown was at GHCF and Brown has not been able to produce the alleged letters to Dr. Wright.


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

  It is so ordered.


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