This matter is before the Court on defendants' motion for summary judgment (Filing No. 41). Having carefully reviewed the motion, responses, the briefs of the parties, the evidentiary submissions, plaintiff's 327-page medical record and the applicable law the Court will grant defendants' motion.
Plaintiff Rakeem Harvey ("Harvey") brings this action pursuant to 42 U.S.C. § 1983, alleging defendants Glenn S. Goord, David Miller, Gary Filion, Raelene Milicevic, M.D.*fn1 ("Dr. Milicevic"), Mikhail Gusman, M.D.*fn2 ("Dr. Gusman"), and Paula Osterhout ("Nurse Osterhout") violated his constitutional rights when they exhibited deliberate indifference to his medical needs in their treatment of an injury to his left eye, an injury to a finger and in failing to provide prescribed medications. Harvey also asserts a claim of retaliation, asserting that he was transferred out of Eastern Correctional Facility in retaliation for filing a medical grievance.
Summary judgment "shall be rendered forthwith if 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 fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)(quoting Anderson, 477 U.S. at 248). On a motion for summary judgment, all reasonable factual inferences must be drawn in favor of the non-moving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003)(citing Anderson, 477 U.S. at 255). However, to survive a motion for summary judgment, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(emphasis omitted)(quoting Fed. R. Civ. P. 56(e))(citation omitted). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)(citation omitted). Thus, "statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999)(citations omitted), cert. denied, 530 U.S. 1242 (2000). In addition, "the 'mere existence of a scintilla of evidence' supporting the non-movant's case is . . . insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003)(quoting Anderson, 477 U.S. at 252).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Thus, a party "moving for summary judgment must prevail if the [non-movant] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)(citing Anderson, 477 U.S. at 247-48). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that Harvey is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment." Fitzpatrick v. New York Cornell Hosp., 2002 U.S. Dist. LEXIS 25166, at *5 (S.D.N.Y. Jan.9, 2003)(citing cases).
A. Supervisory Defendants Goord, Miller, Filion and Milicevic
Harvey's claims against defendant Goord are based on Goord's position as Commissioner of the New York State Department of Corrections while his claims against defendants Miller and Filion are based upon their roles as superintendents at the Eastern and Coxsackie Correctional Facilities respectively.
Harvey's claims against Dr. Milicevic are based upon her role as Medical Director at Eastern. To be liable under § 1983, a prison official must have some personal involvement. "Supervisor liability in a § 1983 action depends on a showing of some personal responsibility and cannot rest on respondeat superior. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)(citations omitted).
Supervisor liability under § 1983 can be shown by "(1) actual direct participation in the constitutional violation; (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring." Hernandez, 341 F.3d at 145. Thus, Harvey must demonstrate the personal involvement of Goord, Miller, Filion and Milicevic in the alleged constitutional violations to maintain his cause of action as to these defendants. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
With respect to defendants Goord, Miller and Filion, the plaintiff has not rebutted the affidavits of these three parties. In addition, in his deposition, he testified that each of them were sued simply because they were supervisors and not because of any personal involvement. See Harvey Dep. 138:22-140:3, 141:18-142:11 and 142:12-24. For these reasons, these defendants' motion for summary judgment will be granted.
Harvey also has not produced evidence of personal involvement by Dr. Milicevic. In his deposition, Harvey asserted that he was suing Dr. Milicevic not because of any care she provided or allegedly failed to provide, but instead simply because she was the Medical Director at Eastern (Deposition of Rakeem Harvey ("Harvey Dep."), 144:15-145:11). Harvey testified that he "rarely, if ever" dealt with Dr. Milicevic, and that he did not bring any complaints regarding his medical treatment to her attention (Harvey Dep. 145:5-11). Thus, ...