Fulmore v. Mamis

Full title: HENRY FULMORE, Plaintiff, v. HARRY MAMIS, Medical Provider, and DR…

Court: United States District Court, S.D. New York

Date published: Apr 23, 2001

00 Civ. 2831 (AJP) (S.D.N.Y. Apr. 23, 2001)

Opinion

00 Civ. 2831 (AJP)

April 23, 2001

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge.

Pro se plaintiff Henry Fulmore, an inmate at Green Haven Correctional Facility, brings this action under 42 U.S.C. § 1983 and the Eighth Amendment for the prison's alleged deliberate indifference to his serious medical needs in connection with his:

(1) back injury, suffered on March 10, 1999,

(2) ankle injury, and

(3) alleged breathing difficulty.

(Dkt. No. 2: Compl. ¶¶ IV, IV-A; Dkt. No. 8: Amended Compl. ¶¶ IV, IV-A; Dkt. No. 18: Prieto Aff. Ex. B: Fulmore Dep. at 4-7, 23-24, 30-31.)

Defendants have moved for summary judgment, arguing that Fulmore has not established that he has serious medical needs or that defendants were deliberately indifferent to his medical needs (Dkt. No. 19: State Br. at 7-20) and that defendant Dr. Carl Koenigsmann was not personally involved in the incidents about which Fulmore complains (id. at 20-21; see also Dkt. No. 26: State Reply Br. at 6-9).

The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 14, 21.) For the reasons discussed below, defendants' summary judgment motion is GRANTED.

FACTS

Henry Fulmore, a 43 year-old male, has been incarcerated on a state second-degree murder conviction since 1998. (Dkt. No. 18: Prieto Aff. Ex. B: Fulmore Dep. at 4; Prieto Aff. Ex. C: Mamis Aff. ¶ 6.) On February 23, 1999, Fulmore was transferred from Rikers Island to Downstate Correctional Facility, where he remained until March 16, 1999, when he was transferred to Green Haven Correctional Facility. (Fulmore Dep. at 4; Mamis Aff. ¶¶ 6-7.)

Defendants Harry Mamis and Carl Koenigsmann are medical doctors employed by the New York State Department of Correctional Services ("DOCS"): Dr. Mamis is a clinical physician at Green Haven and was Fulmore's primary health care provider there from March 16, 1999 through February 7, 2000. (Mamis Aff. ¶¶ 1-2.) Dr. Koenigsmann is the Physician/Facility Health Services Director at Green Haven. (Prieto Aff. Ex. D: Koenigsmann 12/28/00 Aff. ¶ 1.)

Fulmore's Back Injury

While incarcerated at Downstate, Fulmore alleges that he injured his back when he slipped and fell after taking a shower and stepping out onto a wet, recently mopped floor. (Dkt. No. 18: Prieto Aff. Ex. B: Fulmore Dep. at 4-5.) A nurse at Downstate gave him an over-the-counter painkiller, Motrin, for his back injury. (Id. at 5.) On March 16, 1999, the day Fulmore was transferred to Green Haven, Fulmore saw another nurse. (Id. at 5-6.) "[A] couple of days later," Dr. Mamis was assigned as Fulmore's primary health care provider at Green Haven. (Id.)

From March 1999 until February 2000, Fulmore regularly saw Dr. Mamis for his back injury (and other complaints). (Fulmore Dep. at 5-12; Prieto Aff. Ex. Mamis Aff. ¶¶ 7-39.) On March 22, 1999, Dr. Mamis prescribed a painkiller, Feldene, for Fulmore's complaints of back pain. (Fulmore Dep. at 6; Mamis Aff. ¶ 8; Mamis Aff. Ex. A: Fulmore Medical Records ("Med. Rec.") at 72.) On March 25, 1999, Dr. Mamis gave Fulmore Ibuprofen. (Fulmore Dep. at 7; Med. Rec. at 73.) On April 5, 1999, Physician's Assistant ("P.A.") Alivia McLean asked Fulmore to perform a toe touch, which would allow her to evaluate his back pain, but Fulmore refused alleging that it was too painful. (Id. at 7; Mamis Aff. ¶ 9; Med. Rec. at 33, 73.) P.A. McLean ordered x-rays of Fulmore's spine, and Dr. Mamis reviewed the x-rays with Fulmore on April 12, 1999. (Fulmore Dep. at 8, 24-25; Mamis Aff. ¶¶ 9-10; Med. Rec. at 33, 73, 74.) Dr. Mamis determined that the x-rays showed that Fulmore had a normal spinal column. (Fulmore Dep. at 8-9, 24-25; Mamis Aff. ¶ 10; Med. Rec. at 74.) On several occasions, Dr. Mamis and other health care providers prescribed Motrin and similar painkillers to Fulmore for his complaints of back pain. (Fulmore Dep. at 9; Mamis Aff. ¶¶ 18, 20, 23, 29, 32, 34-35; Med. Rec. at 61, 64, 67.)

On June 24, 1999, Nurse Jackie Bodzak examined Fulmore for complaints of lower back pain, and noted that Fulmore "was ambulating without difficulty" and refused to take the over-the-counter medication given to him. (Mamis Aff. ¶ 18; Med. Rec. at 77.) On July 16, 1999 and August 5, 1999, respectively, Dr. Scales and Registered Nurse Schott gave Fulmore Motrin to alleviate his pain. (Mamis Aff. ¶¶ 20, 23; Med. Rec. at 61, 77.)

On August 8, 1999, Fulmore asked Dr. Mamis to order a CAT scan of his back, which Dr. Mamis refused after examining Fulmore's back. (Fulmore Dep. at 24-25; Mamis Aff. ¶ 24.) According to Dr. Mamis, "Plaintiff's x-ray of his spine indicated that he had a normal spinal column. In addition, my examination of plaintiff's back indicated that he had a normal back. The x-ray and my examinations indicated that there was no pathological finding requiring a CAT Scan. Thus, in my medical opinion, a CAT Scan was not medically necessary." (Mamis Aff. ¶ 24.)

When Dr. Mamis again examined Fulmore for complaints of back pain on August 9, 1999, Fulmore refused to bend down and touch his toes at a ninety degree angle because he alleged he was in "too much pain." (Mamis Aff. ¶ 25; Med. Rec. at 61.) However, when Dr. Mamis asked Fulmore to sit on the examining table with his legs stretched out, he was able to sit at a ninety degree angle without any pain. (Mamis Aff. ¶ 25.) Dr. Mamis explained:

When inmates refuse to touch their toes, they are asked to sit on the examining table with their legs stretched out to determine if they are exaggerating their symptoms. Plaintiff requested a steel bed for his chronic back pain. In my medical opinion, a steel bed was not medically necessary because plaintiff was exaggerating his symptoms.

(Id.)

On October 10, 1999, Fulmore requested that Dr. Mamis order a CAT scan and orthopedic consultation, but Fulmore again refused to bend down and touch his toes even though he was able to sit on the exam table with his legs outstretched. (Mamis Aff. ¶ 28; Med. Rec. at 63.) Dr. Mamis again refused Fulmore's requests, because he determined that "neither of these procedures was medically necessary because again [Fulmore] was just exaggerating his symptoms." (Mamis Aff. ¶ 28.)

Meanwhile, despite his complaints of back pain, Fulmore requested clearance for football, which Dr. Koenigsmann denied on September 8, 1999 because of Fulmore's complaints of back pain. (Mamis Aff. ¶ 27; see Prieto Aff. Ex. D: Koenigsmann 12/28/00 Aff. ¶ 8; Med. Rec. at 67.)¹

1 According to Fulmore, he did "not request to be cleared to play football" but to be "placed on the roster for the set up crew"; he agrees that the medical department did not "clear him" for this activity. (Dkt. No. 23: Fulmore Br. at 5-6.)

On January 24, 2000, Dr. Koenigsmann received a call from Green Haven's grievance coordinator who indicated that Fulmore might become violent during Dr. Mamis' medical examinations because Fulmore was unhappy with Dr. Mamis' medical treatment. (Mamis Aff. ¶ 38.) On February 7, 2000, Fulmore made verbal threats against Dr. Mamis to a grievance counselor, and as a result, Fulmore was reassigned to another primary health care provider. (Mamis Aff. ¶ 39; Koenigsmann 12/28/00 Aff. ¶¶ 18-19.) On August 28, 2000, Dr. Koenigsmann examined Fulmore's back, recommended physical therapy, and again denied Fulmore's request for football clearance due to Fulmore's complaints of back pain. (Koenigsmann 12/28/00 Aff. ¶ 55.)

Fulmore's Ankle Injury

Injury On April 21, 1999, Dr. Mamis ordered x-rays of Fulmore's feet because Fulmore complained of ankle pain. (Dkt. No. 18: Prieto Aff. Ex. B: Fulmore Dep. at 21-22; Prieto Aff. Ex. C: Mamis Aff. ¶ 12.) The x-rays indicated that Fulmore had "hammertoes," bunions and flat feet. (Fulmore Dep. at 21-22; Mamis Aff. ¶ 12; Med. Rec. at 32.) On April 28, 1999, Dr. Mamis referred Fulmore to a podiatrist for an evaluation of his foot x-rays. (Fulmore Dep. at 22; Mamis Aff. ¶ 13; Med. Rec. at 34.) The podiatrist evaluated Fulmore on May 21, 1999 and recommended that Fulmore wear wide shoes to accommodate his bunions and prescribed an oral anti-fungal medication, but did not recommend orthopedic shoes. (Mamis Aff. ¶ 14; Med. Rec. at 34; see also Prieto Aff. Ex. D: Koenigsmann 12/28/00 Aff. ¶¶ 14-15.)

On May 27, 1999, Dr. Mamis examined Fulmore for complaints of pain in his left ankle, which Fulmore said he sustained while trying to get off his top bunk. (Fulmore Dep. at 13, 22; Mamis Aff. ¶ 15-16; Med. Rec. at 75, 76.)

According to Dr. Mamis, because Fulmore was able to walk without limping, his ankle was not swollen, and "[i]t was evident that [Fulmore] could bear his weight on his foot," an x-ray was unnecessary. (Mamis Aff. ¶ 16.) Dr. Mamis ordered wide shoes for Fulmore pursuant to the podiatrist's recommendations. (Fulmore Dep. at 19-20, 22; Mamis Aff. ¶ 16; Med. Rec. at 35.) On June 4, 1999, Dr. Mamis determined that an ankle x-ray was necessary because Fulmore complained twice that week about pain in his ankle. (Fulmore Dep. at 13-14; Mamis Aff. ¶ 17; Med. Rec. at 31, 76.) "The x-rays indicated that [Fulmore] had a mild deformity in his [left] ankle due to an old trauma. Moreover, there was no indication of a recent fracture, dislocation, joint body or arthritic change." (Mamis Aff. ¶ 17; Med. Rec. at 31.)

On July 26, 1999, Dr. Mamis ordered an ankle brace for Fulmore. (Fulmore Dep. at 13-15; Mamis Aff. ¶ 22; Med. Rec. at 59, 60.) According to Dr. Mamis, "[t]he purpose of the brace [was] to support the tendons in [Fulmore's] ankle." (Mamis Aff. ¶ 22.) Dr. Mamis again examined Fulmore for his ankle pain on November 5, 1999, at which time Fulmore was not wearing his ankle brace. (Fulmore Dep. at 13-15, 21; Mamis Aff. ¶ 30; Med. Rec. at 64.) On January 21, 2000, Fulmore again complained of ankle pain and Dr. Mamis ordered x-rays of plaintiff's feet "to see if there were any new developments." (Mamis Aff. ¶ 36; Med. Rec. at 68.) The x-ray, taken that day, revealed that Fulmore's right foot was normal and his left foot had bunions. (Mamis Aff. ¶ 37; Med. Rec. at 36.) In August 2000, Saint Agnes' Hospital performed a bunionectomy on Fulmore. (Fulmore Dep. at 22-23, 39-40; Koenigsmann 12/28/00 Aff. ¶ 56.)

From March 1999 to August 2000, throughout the time that Fulmore was being examined for both back and ankle pain, Fulmore attended academic classes at Green Haven. (Fulmore Dep. at 39.) Fulmore's ankle and back pain did not keep him from walking to class twice a day, a walk he described as "pretty long" and as "about two city blocks." (Fulmore Dep. at 39-41.)

Fulmore's Breathing Difficulty

Fulmore was given an inhaler while at Downstate for his complaint of difficulty in breathing. (Dkt. No. 18: Prieto Aff. Ex. B: Fulmore Dep. at 28-29.) At Green Haven, on July 15, 1999, Fulmore complained of breathing difficulty and a nurse recommended that Fulmore receive an "Albuterol inhaler." (Fulmore Dep. at 29; Prieto Aff. Ex. C: Mamis Aff. ¶ 19; Med. Rec. at 77.) Dr. Scales gave Fulmore a prescription for the inhaler with two refills, and the prescription was refilled on August 24, 1999 and September 28, 1999. (Fulmore Dep. at 30-31; Mamis Aff. ¶ 19.)

On November 4, 1999, Fulmore asked Dr. Mamis for a further refill of his Albuterol inhaler, but Dr. Mamis refused. (Fulmore Dep. at 30-31; Mamis Aff. ¶ 29; Med. Rec. at 64.) According to Dr. Mamis:

[I]n my medical opinion, a refill of [Fulmore's] Albuterol was not medically necessary. [Fulmore] never showed any signs of clinical asthma. There was no evidence that [Fulmore] was wheezing. Furthermore the improper use of an Albuterol inhaler can cause serious health risks.

(Mamis Aff. ¶ 29.)

On November 26, 1999, Fulmore complained to Nurse Cathy Metzomer about a cough and that it "hurt to take a deep breath." (Mamis Aff. ¶ 31; Med. Rec. at 65.) Tests of Fulmore's lung capacity revealed a normal air flow, "no clinical signs of asthma" and that his "lungs were clear." (Id.) Nurse Metzomer gave Fulmore cough syrup for his cough. (Id.) On November 30, 1999, Fulmore complained to Dr. Mamis that his breathing was "messed up." (Mamis Aff. ¶ 32.) Fulmore was not wheezing, yet when Dr. Mamis tested his lung capacity, it was below normal, in Dr. Mamis' view "because [Fulmore] did not really try to blow air from his mouth." (Id.) Based on the November 26 test results and the lack of evidence that Fulmore had been wheezing, Dr. Mamis again denied Fulmore's request for renewal of his Albuterol inhaler as not medically necessary. (Fulmore Dep. at 30-31; Mamis Aff. ¶ 32; Med. Rec. at 66.)

On December 1, 1999, Dr. Mamis gave Fulmore cough medicine for Fulmore's complaints of breathing difficulty and coughing. (Mamis Aff. ¶ 33; Med. Rec. at 66.) On December 1, 1999 and January 21, 1999, Fulmore again requested a refill on his inhaler, and Dr. Mamis again refused. (Mamis Aff. ¶¶ 33, 36; Med. Rec. at 66, 68.)

Fulmore's Grievance

Fulmore filed a grievance with the Central Office Review Committee ("CORC"), claiming that Dr. Mamis should schedule him for an orthopedic consultation and CAT scan of his back, should order that he be assigned a bottom bunk due to his ankle injury, and should refill his inhaler for his breathing difficulty. (Dkt. No. 18: Prieto Aff. Ex. B: Fulmore Dep. at 19-21; Prieto Aff. Ex. E: Koenigsmann 10/19/00 Aff. ¶¶ 7-17.) On September 1, 1999, Margaret Wyke, the Regional Health Services Administrator who performed the initial grievance review, granted all of Fulmore's requests except for the refill of Fulmore's Albuterol inhaler, based on alleged recommendations by Green Haven's Superintendent. (Koenigsmann 10/19/00 Aff. Ex. A: CORC 9/1/99 Decision); Koenigsmann 10/19/00 Aff. ¶¶ 7, 9, 16.) However, CORC later discovered that the information about a Superintendent's recommendations contained in the decision was incorrect. (Koenigsmann 10/19/00 Aff. ¶¶ 10-17.)

According to Dr. Koenigsmann:

10. When I read the decision, on or about October 15, 1999, I realized that this decision had not come to my attention through the official channels at the facility. The usual procedure is that the Superintendent informs me directly of any decisions from CORC related to an inmate's health. However, the Superintendent never informed me of this one. Furthermore, there was no copy of the decision at Green Haven.

11. This decision stated that "CORC concurs with the Superintendent and notes that the grievant has been scheduled for an orthopedic consultation and a CAT Scan." I disagreed with the statement that CORC concurred with the Superintendent. At that time the Superintendent was Artuz, and he had made no recommendations regarding [Fulmore's] request to CORC which were the subject of the decision. In fact, [Fulmore's] medical charts, revealed that Superintendent Artuz had not scheduled [Fulmore] for an orthopedic consultation or a CAT Scan, nor had he suggested that [Fulmore] be scheduled for these exams.

(Koenigsmann 10/19/00 Aff. ¶¶ 10-11.)

After Dr. Koenigsmann contacted Wyke, Wyke reviewed the decision and agreed that the information contained in the decision was not correct. (Koenigsmann 10/19/00 Aff. ¶¶ 16-17.) Wyke indicated that the decision was a mistake, and said she would issue a new decision to supersede it, granting only Fulmore's request to be moved to a bottom bunk. (Koenigsmann 10/19/00 Aff. ¶ 16-17; see Fulmore Dep. at 19.) No copy of that decision, however, has been supplied to the Court on this motion.

ANALYSIS I. GOVERNING LEGAL STANDARDS GOVERNING LEGAL STANDARDS

A. Summary Judgment Standards

Summary Judgment Standards Rule 56(c) of the Federal Rules of Civil Procedure provides that 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); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).²

2 See also, e.g., Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *4 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *4 (S.D.N.Y. July 19, 2000 (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).³ The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.⁴

3 See also, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *4; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *3; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 817; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N Y Mar. 24, 1997) (Peck, M.J.).

4 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 106 S.Ct. 1348, 1356 (1986).⁵ Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.⁶ reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.⁹

5 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534.

6 See also, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 99 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

9 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.⁷ The Court draws all inferences in favor of the nonmoving party — here, Fulmore — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108, S.Ct. 489 (1987).⁸ "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a

7 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818.

8 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987).¹⁰ To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.¹¹ While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).¹²

10 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

11 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

12 See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

"The Court recognizes that it must `extend extra consideration' to pro se plaintiffs" such as Fulmore, and that "pro se parties are `to be given "special latitude on summary judgment motions.'" Salahuddin v. Coughlin, 999 F. Supp. at 535 (citing cases).¹³ "Nevertheless, 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, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).¹⁴

13 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Watson v. McGinnis, 981 F. Supp. at 818; see also, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'").

14 See also, e.g., Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5.

B. Section

Section 1983 and Deliberate Indifference to Serious Medical Needs To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988).¹⁵ "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749 (1994).¹⁶

15 See also, e.g., Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *4 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.).

16 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5.

The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. See, e.g., Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323 (1991); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925 (1976).¹⁷

17 See also, e.g., Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *5.

To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs. See, e.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291.¹⁸

18 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6; Howard v. Headly, 72 F. Supp.2d 118, 123 (E.D.N.Y. 1999).

As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). "Objectively, the alleged deprivation must be `sufficiently serious.'" Id.<sup>19</sup> Eighth Amendment protection extends to "`a condition of urgency' that may result in `degeneration' or `extreme pain'." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *5.

19 See also, e.g., Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6.

"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553.²⁰ "The required state of mind, equivalent to criminal recklessness, is that the 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 also draw the inference.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994)).²¹

20 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *6; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6.

21 Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *6; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6; see also, e.g., LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate interference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger.").

Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291. However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. at 105-06, 97 S.Ct. at 292; accord, e.g., Burton v. New York State Dep't of Corrections, 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292; accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Freeman v. Strack, 2000 WL 1459782 at *6; Carbonell v. Goord, 2000 WL 760751 at *9 n. 20; Felipe v. New York State Dep't of Correctional Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. April 10, 1998) (Pooler, D.J.). As the Supreme Court has stated, "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292; accord, e.g., Hathaway v. Coughlin, 37 F.3d at 70 (Jacobs, C.J., dissenting) ("`We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.'"); Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim.").²²

22 See also, e.g., Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim); Brown v. Selwin, 98 Civ. 3008, 1999 WL 756404 at *6 (S.D.N.Y. Sept. 24, 1999) (citing cases); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999); Espinal v. Coughlin, 98 Civ. 2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).

Furthermore, a delay in medical treatment does not necessarily invoke the Eighth Amendment:

Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, this Court has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a "life-threatening and fast-degenerating" condition for three days; or delayed major surgery for over two years. No such circumstances are present here. At no point was [plaintiff's] condition "fast-degenerating" or "life-threatening," and there is no indication that [defendant] delayed treatment in order to punish him. Moreover, any delay in treatment in this case does not rise to the egregious level identified in Hathaway. That [plaintiff] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim.

Demata v. New York State Correctional Dep't of Health Servs., No. 99-0066, 198 F.3d 233 (table), 1999 WL 753142 at *2 (2d Cir. Sept. 17, 1999) (citations omitted); accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *6-7; Culp v. Koenigsmann, 2000 WL 995495 at *7-8.

C. Supervisory Liability for § 1983 Claims

"It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").²³

23 See also, e.g., Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *6 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp.2d 447, 462 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.); Jackson v. Johnson, 15 F. Supp.2d 341, 365 (S.D.N.Y. 1998) (Kaplan, D.J. * Peck, M.J.); Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Wright v. Nunez, 950 F. Supp. 610, 611 (S.D.N.Y. 1997) (Martin, D.J. Peck, M.J.); McCray v. Kralik, 96 Civ. 3891, 1996 WL 378273 at *3 (S.D.N.Y. July 1, 1996) (Peck, M.J.).

"The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d at 873.²⁴

24 Accord, e.g., Wright v. Smith, 21 F.3d at 501; Freeman v. Strack, 2000 WL 1459782 at *7; Carbonell v. Goord, 2000 WL 760751 at *7; Ali v. Szabo, 81 F. Supp.2d at 462-63; Jackson v. Johnson, 15 F. Supp.2d at 365; Watson v. McGinnis, 964 F. Supp. at 130; Wright v. Nunez, 950 F. Supp. at 611; Lloyde v. Lord, 94 Civ. 484, 1997 WL 123996 at *1 (S.D.N.Y. Mar. 19, 1997); McCray v. Kralik, 1996 WL 378273 at *3; Zamakshari v. Dvoskin, 899 F. Supp. at 1109.

II. APPLICATION OF THESE LEGAL PRINCIPLES TO FULMORE'S CLAIMS

A. Fulmore's Claim Against Dr. Mamis

Fulmore has not alleged sufficient facts to meet the subjective prong of the two-part deliberate indifference test. He has presented no evidence from which a reasonable juror could conclude that Dr. Mamis acted with deliberate indifference to his well-being or acted with a sufficiently culpable state of mind. Fulmore was seen frequently by Dr. Mamis and other prison medical staff and by outside consultants. (See pages 2-8 above.) He was given x-rays, all of which were negative. He was given medical treatment, painkillers, an ankle brace, wide shoes, physical therapy, and (at least for a time) medication for his breathing complaints — with repeated follow-up examinations. (See pages 3-8 above.) Fulmore's claim is based on the fact that Dr. Mamis did not give him a CAT scan or orthopedic shoes, and refused to refill his inhaler medication on certain occasions.²⁵ At most, Fulmore's complaint reflects a difference in opinion as to his medical treatment rather than any deliberate indifference to his medical needs. Mere disagreement in treatment does not amount to an Eighth Amendment violation. See, e.g., Estelle v. Gamble, 429 U.S. at 106-07, 97 S.Ct. at 292-93 ("Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment . . . A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment."); Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim"; no liability where prisoner asserted he suffered elbow pain from deprivation of ace bandage); Brown v. Selwin, 98 Civ. 3008, 1999 WL 756404 at *6-7, (S.D.N.Y. Sept. 24, 1999) (no Eighth Amendment violation where the "gravamen of [plaintiff's] claim is that some [of] his medical treatment was not to his liking and that he disagreed with some of the treatment and diagnoses that he received."); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999) (no Eighth Amendment violation occurred where plaintiff alleged that his back pain was not appropriately treated and that doctors unduly delayed plaintiff's back surgery for two years. "Such an allegation, even if true, would not by itself meet the Eighth Amendment standard, unless there were some evidence that the health care providers knowingly and intentionally rendered improper treatment."); Williams v. M.C.C. Institution, 97 Civ. 5352, 1999 WL 179604 at *7 (S.D.N.Y. Mar. 31, 1999) ("the law is clear that a difference of opinion between an inmate and medical professionals, or even among medical professionals themselves, as to the appropriate course of medical treatment does not in and of itself amount to deliberate indifference. . . . Courts have repeatedly held that a prisoner does not have the right to treatment of his choice."); Vento v. Lord, 96 Civ. 6169, 1997 WL 431140 at *5 (S.D.N Y July 31, 1997) (Sotomayor, D.J.) ("plaintiff's [denied] x-ray request and claim that without new x-rays her physical therapy is ineffective fails to state a claim of deliberate indifference"); Sharp v. Jeanty, 93 Civ. 0220, 1993 WL 498095 at *2 (S.D.N.Y. Nov. 30, 1993) (Leval, D.J.) (dismissing complaint where prisoner's knee was x-rayed but he was not given an orthroscan, because plaintiff's medical "records indicate[d] an extensive and ongoing course of medical treatment" of his injury, and many of his allegations amounted to "second guessing the treatments of his health care providers", and explaining that "`a prisoner's disagreement with his prescribed treatment does not afford a basis for relief under § 1983.'"). Indeed, the courts have repeatedly dismissed claims, such as Fulmore's, that prison doctors ordered x-rays but not cat scans, or refused asthma inhalers, while providing other treatment to the inmate plaintiff.²⁶

25 As to the orthopedic shoes, Fulmore's claim that he was deprived of orthopedic boots is not based on what is in the medical records, which actually recommend wide boots, but on Fulmore's belief that an orthopedist would order orthopedic boots. (See Dkt. No. 18: Prieto Ex. B: Fulmore Dep. at 20-21 ("They were trying to tell me that the Doctor didn't specifically order orthopedic boots, but I'm quite sure, coming from an orthopedist, they would order orthopedic boots, you know."). There is no evidence that the orthopedic specialist recommended orthopedic shoes. His consultation report recommends extra wide shoes. (Med. Rec. at 34.) And that is what Dr. Mamis provided for Fulmore. (See page 6 above.)

26 See also, e.g., Kelley v. Lutz, No. 95-16003 87 F.3d 1320 (table), 1996 WL 341299 at *1 (9th Cir. June 19, 1996) (prison doctor's denial of inmate's request for cat scan did not constitute deliberate indifference where inmate had been seen by several specialists and x-rays did not reveal any abnormality); Stephen v. Zulfacar, No. 94-55655, 46 F.3d 1145 (table), 1995 WL 10836 at *1 (9th Cir. Jan. 11, 1995) (inmate's allegation that prison doctor should have prescribed an asthma inhaler which had been prescribed for him on previous occasion showed "at most, a difference of opinion over the proper course of treatment" and as such, did not state an Eighth Amendment claim); Burley v. O.D.O.C., No. CV-99-1462, 2000 WL 1060658 at *4-5 (D.Or. July 11, 2000) (granting defendants summary judgment on Eighth Amendment claim where "[p]laintiff disputes that the lumbar/sacral spine x-ray shows that nothing was wrong with his head, neck, and back" and "believes that only an `MRI' or `Cat Scan' can confirm his injuries in those areas"); Dickinson v. Taylor, No. Civ. A. 98-695, 2000 WL 1728363 at *4 (D.Del. May 19, 2000) (inmate's disagreement with prison medical staff's decision to deny his request for asthma inhaler did not state claim for deliberate indifference); Lewis v. Herbert, No. Civ. A. 96-2933, 1996 WL 663874 at *4 (E.D.Pa. Nov. 14, 1996) ("[E]ven if Defendant's decision not to give Plaintiff an anesthetic or order an X-Ray or Cat Scan . . . amounted to medical malpractice, a tort is not transformed into a constitutional violation simply because the victim is a prisoner."); Sipple v. Nelson, No. 94-3339, 1996 WL 665462 at *2, *5 (D.Kan. Oct. 28, 1996) (dismissing Eighth Amendment claim where "[a]t most, plaintiff has stated that defendants negligently failed to adhere to his asthma treatment regime for a brief period of time"); Coppage v. Mann, 906 F. Supp. 1025, 1038-39 (E.D.Va. 1995) (rejecting plaintiff's argument that prison doctor was deliberately indifferent when he ordered two diagnostic tests which were less effective than an MRI; "The case law draws a clear distinction between situations in which the physician provides no medical care, which may amount to deliberate indifference, and those in which the physician provides merely substandard care, which amounts at most to negligence."); Trejo v. Gomez, No. C-93-0360, 1995 WL 429247 at *3 (N.D.Cal. July 13, 1995) (rejecting claim that prison doctor's failure to order CAT scan or MRI for inmate complaining of neck, back and shoulder pain constituted deliberate indifference); Johnson v. Department of Corr., 92 Civ. 7716, 1995 WL 121295 at *3 (S.D.N.Y. Mar. 21, 1995) (summary judgment for defendants where inmate suffering from hip condition who was examined and treated on numerous occasions complained he should have received an MRI; "the Eighth Amendment does not mandate the use of any particular medical technology or course of treatment"); Wilkerson v. Marshall, No. C 94-0009, 1994 WL 564650 at *1-4 (N.D.Cal. Oct. 3, 1994) (rejecting inmate's claim that prison doctor's failure to order an MRI constituted deliberate indifference); Patterson v. Prendergast, 91 Civ. 6770, 1992 WL 208275 at *1 (S.D.N.Y. Aug. 14, 1992) (dismissing Eighth Amendment claim where "Plaintiff does not contend that the purported denial of inhalers was intended to or did in fact cause him any injury, and he asserts neither that Defendant's action was undertaken maliciously nor even that no medical explanation supported (or was offered for) the reversal of the doctor's order"). Lopez v. Medical Dep't, Civ. A. No. 90-5287, 1990 WL 174361 at *1 (E.D.Pa. Nov. 6, 1990) (prison medical staff's refusal to "take x-rays, perform a CAT scan and administer other medical tests" did not give rise to Eighth Amendment claim).

Aside from his disagreement with the treatment, Fulmore has not shown any evidence that Dr. Mamis acted with a sufficiently culpable state of mind. (See cases cited at pages 15-17 above.)

Accordingly, defendant Dr. Mamis is entitled to summary judgment.

B. Fulmore's Claims Against Dr. Koenigsmann

As noted in Point I(C) above, a supervisory official may be held liable under § 1983 when there is "evidence that (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [citizens] by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also cases cited at pages 18-19 above. Here, Fulmore has failed to identify an underlying constitutional violation for which Dr. Koenigsmann could be held responsible.

As Fulmore has shown at most negligence by defendant Dr. Mamis, it follows that Dr. Koenigsmann, who is being sued in his supervisory capacity (see Dkt. No. 18: Prieto Aff. Ex. A: Amended Compl. ¶ IV ("Upon my complaint to Dr. Koenigsmann, he concurred with Dr. Mamis. . . .")), cannot be subject to § 1983 liability. See, e.g., Bryant v. Maffucci, 923 F.2d 979, 984 (2d Cir. 1991) ("Obviously, if defendants Allan, Powell, and Thackeray cannot be held liable for their conduct because it was at most negligent, it follows logically that defendants Maffucci and Jackson, who are only implicated because of their supervisory authority over the practices and procedures followed at the prison, also are not subject to being held liable."), cert. denied, 502 U.S. 849, 112 S.Ct. 152 (1991); see also, e.g., Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *10 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.).

CONCLUSION

For the reasons set forth above, defendants' summary judgment motion is GRANTED, and the complaint is dismissed.

SO ORDERED.