Kemp v. Wright

Full title: SHAWN KEMP, also known as "Albert Massie," Plaintiff, v. DR. LESTER…

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

Date published: Apr 19, 2005

01 CV 562 (JG) (E.D.N.Y. Apr. 19, 2005)

Opinion

01 CV 562 (JG).

April 19, 2005

SHAWN KEMP, a/k/a/ Albert Massie, NYSID #5016685-H, BC #441-04-14793, Rikers Island Correctional Facility, East Elmhurst, New York, Plaintiff Pro Se.

ELIOT SPITZER, Attorney General, State of New York By: Steven N. Schulman, Assistant Attorney General, Attorney for Defendants.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Plaintiff Shawn Kemp, also known as "Albert Massie,"¹ brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants, who are physicians and officials in the New York State Department of Correctional Services ("DOCS"), failed to provide him with adequate medical treatment in violation of his Eight Amendment right to be free from cruel and unusual punishment. The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

1 Plaintiff's true name is Albert Massie. He adopted the name Shawn Kemp in homage to the great NBA player of that name.

In their motion, defendants argue that (1) Kemp's conditions, plantar fasciitis and a sinus condition, were not sufficiently serious to implicate the Constitution; (2) defendants were not deliberately indifferent in treating Kemp's conditions; (3) the non-medical defendants and Dr. Lester Wright were not personally involved; and (4) defendants have qualified immunity because it was objectively reasonable for them to believe that their conduct conformed with the law. I heard oral argument by telephone on March 25, 2005. For the following reasons, the defendants' motion is granted.

FACTS²

2 The following facts are drawn from the defendants' Rule 56.1 Statement and the affidavits thereto, which include a deposition of the plaintiff. Plaintiff has not submitted a Rule 56.1 Statement.

Kemp was originally sent to Downstate Correctional Facility for intake on April 19, 1999. When examined by a physician's assistant, he had a firm, hard, non-tender mass of one-half to three-quarter inches on the arch of each foot. (Schulman Decl., Ex. B at K1.) He was given a thirty-day sneaker pass³ and recommended for referral to a podiatrist. ( Id. at K2-K3.) Once approved by the Facility Health Services Director at Downstate, the referral was forwarded to Physician Health Services ("PHS"), a private entity that provided specialist services for inmates. PHS conducted a utilization review on all referral recommendations, and denials by PHS were reviewed by the corresponding DOCS regional medical director. A denial by the DOCS regional medical director was appealable by the facility health services director who initially approved the referral.

3 Inmates are required to wear boots issued to them by DOCS. A sneaker pass permits an inmate to wear sneakers.

On April 23, 1999, Kemp was transferred to Sing Sing Correctional Facility. His sneaker pass remained valid. However, his podiatry referral was denied. For approval, the medical necessity of his podiatry referral now had to be confirmed by the facility health services director at Sing Sing. From the end of April 1999 to the end of June 1999, Kemp was seen numerous times by medical staff at Sing Sing. Four visits were related to his feet. The nurses observed tissue growth at the bottom of each foot, out pouching of skin near his great toe, and fungus. ( Id. at K3.) They provided foot pads, foot powder and antifungal cream. ( Id.)

On June 15, 1999 and again on June 25, 1999, Kemp complained of "difficulty walking because of excess tissue growth on bottom of feet." ( Id.) The nurses' notes reveal a request for a podiatry consult and indicate that a previous request from April 19, 1999 ( i.e., the one from Downstate) was pending. Kemp also requested a renewal of his sneaker pass. On June 30, 1999, his sneaker pass was renewed for three months.

Thereafter, on July 13, 1999, physician's assistant Williams reported edema to Kemp's ankles and shins. ( Id. at K5.) The condition was treated with leg elevation, compression hose, antifungal medication and a diuretic. The same day, a psychologist reported that Kemp had a history of major depression, which led the doctor to fear that Kemp would not be "motivated" to seek needed medical treatment for the swelling in his legs. ( Id. at K6.) Kemp saw a nurse for the edema again on August 10, 1999. He missed scheduled appointments with Dr. Maw on August 11 and August 16, 1999 due to failure to receive notification. (Kemp. Dep. 53-54.) Treatment for his edema continued in August and September of 1999, with Dr. Halko performing an examination and a number of tests, including a CAT scan and blood work. Kemp also continued to complain about the growths on the bottom of his feet.

On September 17, 1999, Kemp was taken to the emergency room at St. Agnes Hospital for "extreme swelling" resulting from edema at the direction of Dr. Maw. (Maw Aff. ¶ 5; Schulman Decl., Ex. C at 52.) Upon Kemp's return to Sing Sing that same day, he was admitted to the infirmary because of his widespread edema. He remained in the infirmary from September 17, 1999 to March 10, 2000. The progress notes for that period reveal multiple entries each day. ( See Schulman Decl., Ex. C at 51-101.)

"Until the late stages of plaintiff's stay in the infirmary, [Dr. Halko] was concerned that [Kemp's] edema was a potentially life threatening condition." (Halko Aff. ¶ 8.) Dr. Halko referred Kemp to numerous specialists for his edema, and did not believe that the masses on Kemp's feet could be the cause of the edema. However, during his stay in the infirmary, Kemp was examined by a podiatrist, Dr. Shapiro, based on a consult request by Dr. Halko. ( Id. at ¶¶ 11-12.) Dr. Shapiro wanted to rule out fibrosarcoma, which is malignant, but noted that that would require a biopsy. Because of Kemp's edema, the surgery required for a biopsy was not recommended. Instead, Dr. Shapiro recommended x-rays and consultation with an orthopedist.

Kemp's edema stabilized during the end of February and early March of 2000. On March 10, 2000, he was transferred out of the infirmary for a court trip. (Schulman Decl., Ex. C at 101.) When Kemp returned to Sing Sing on April 24, 2000, he was again having edema and problems with the masses on his feet. He received referrals for podiatry and orthopedics in late April and early May of 2000. Although he was seen by other physicians, there is no record of his being seen by either a podiatrist or an orthopedist. Dr. Maw requested another orthopedist consult in July of 2000.

On July 26, 2000, Kemp was transferred to Arthur Kill Correctional Facility. His edema continued. His sole claim at Arthur Kill is that Dr. Lang and Superintendent Breslin did not approve a referral for surgery on his sinuses. (Kemp Dep. 87.) Dr. Mitchell evaluated Kemp for a chronic sinus problem on August 11, 2000 and prescribed antibiotics and referred him for an ear, nose and throat procedure (surgery) that had been suggested by a specialist at St. Agnes Hospital. After consultation with PHS, Dr. Mitchell agreed that another referral and examination by an otolaryngologist would be beneficial before a decision was made regarding surgery.

On October 18, 2000, Kemp was seen by the otolaryngologist, who recommended continued antibiotics, nasal spray and a CT scan of Kemp's sinuses. On December 4, 2000, a CT scan was performed and it showed polyps, opacification, and remodeling of some bony structures. (Schulman Aff., Ex. B at K32-33.) After returning to the infirmary with complaints about his sinuses in December 2000 and January 2001, Kemp was told on January 11, 2001 that he would be referred to otolaryngology once more. On April 16, 2001, at his follow-up appointment, the physician recommended that he continue the antibiotics, get another CT scan and noted that surgery may be indicated. Kemp continued visits to the otolaryngology clinic, with at least seven visits through February of 2002. Surgery was not recommended in any of those visits. His sinuses cleared up in roughly September of 2001, after receiving only medical (as opposed to surgical) treatment. (Kemp. Dep. 88.)

On March 16, 2001, Dr. Armen Kasabjan successfully performed surgery on Kemp's feet to remove the masses.

DISCUSSION

A. Standard for Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Summary judgment is not warranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In reviewing the evidence on a motion for summary judgment, I must "resolv[e] all factual ambiguities and credit all inferences, including those relating to credibility," in favor of the party opposing the motion. Petrosino v. Bell Altantic, 385 F.3d 210, 219 (2d Cir. 2004) (citations omitted); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e)).

B. Standard for Deliberate Indifference

1. Section 1983

Section 1983 of Title 42 of the United States Code provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

A plaintiff in a § 1983 action must therefore establish two elements. First, the plaintiff must show that he has been deprived of federally protected rights. See American Mfgs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Second, the plaintiff must show that a person acted under color of state law so as to deprive plaintiff of his rights. Id.; see also Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).

The Eighth Amendment forbids "cruel and unusual punishments." U.S. Const. amend. VIII. The Amendment is violated when a prison official acts with "deliberate indifference" to a prisoner's "serious" medical needs. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). As the same time, "society does not expect that prisoners will have unqualified access to health care." Id.

2. Objective Test: Serious Medical Condition and/or Need

There is no bright-line test to measure the seriousness of a prisoner's medical need and/or condition, but the Second Circuit has set forth factors to "guide the analysis." Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Those include: (1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment; (2) whether the medical condition significantly affects daily activities; and (3) the existence of chronic and substantial pain. Id. (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Courts must look to the "particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition . . . in the abstract." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (citing Chance, 143 F.3d at 702-03). In cases where the basis for a prisoner's claim is a delay or interruption in treatment, as opposed to the underlying medical condition alone, the inquiry should look to "the severity of the temporary deprivation alleged by the prisoner." Id. In considering a plaintiff's pain, courts do not "require an inmate to demonstrate that he or she experiences pain that is at the limit of human ability to bear, nor do we require a showing that his or her condition will degenerate into a life-threatening one." Brock, 315 F.3d at 163. However, the pain must be more than an annoyance. Id.

3. Subjective Test: Deliberate Indifference

The prisoner must show that a defendant "`knows of and disregards an excessive risk to inmate health or safety,'" which means "actual knowledge of a risk, [or] evidence that the risk was obvious or otherwise must have been known to a defendant." Brock, 315 F.3d at 164 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). This is a "mental state more blameworthy than negligence" — "the equivalent of criminal recklessness." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (quotation marks omitted). Thus, "a prisoner must demonstrate more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Amendment liability." Smith, 316 F.3d at 184 (quotation marks omitted). However, a plaintiff is not required to show that "the defendant acted for the very purpose of causing harm or with knowledge that harm will result." Hernandez, 341 F.3d at 144 (quotation marks omitted). Instead, she must show "an act or failure to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm." Id.

C. Serious Medical Condition and/or Need: Plantar Fasciitis and Sinusitis

Defendants argue that neither Kemp's plantar fasciitis nor his sinusitis rose to the level of a serious medical condition or need. I agree.

As noted above, the factors courts must consider in making this determination include a reasonable doctor or patient's assessment of the condition, the impact of the condition on the plaintiff's daily activities, and the existence of chronic and substantial pain. Brock, 315 F.3d at 162. Here, Dr. Kasabjan, the Chief of Plastic, Reconstructive and Hand Surgery at Staten Island University Hospital, eventually performed elective surgery as treatment for Kemp's plantar fasciitis on March 16, 2001. He found that Kemp had

a not especially advanced case of plantar fasciitis . . . [S]urgery was still elective at that point and, in my experience, many persons with plantar fasciitis in a similar stage have chosen not to have surgery. . . . [P]laintiff did not appear to be in acute distress and the bands appeared to be only "slightly tender" on examination. . . . I did not prescribe any pain medications or anti-inflammatories for plaintiff to take while he was waiting for the operation. (Kasabjan Aff. ¶¶ 3-6.) This medical opinion is substantiated and reasonable; it contextualizes Kemp's condition and explains medical options. Kemp alleges that he was experiencing significant pain when he walked. While it is true that an inmate need not experience "pain that is at the limit of human ability to bear," here Kemp was not prescribed any medication for the pain in his feet. Brock, 315 F.3d at 163. Moreover, Dr. Kasabjan noted that surgery was not recommended for Kemp's condition until it reached a certain level of severity, because with premature surgery, the likelihood of recurrence is much higher. In other words, Kemp's condition was one where any patient would be forced to bear some amount of pain before the treatment he sought, namely surgery, was medically recommended. Accordingly, I conclude that no reasonable juror could find that Kemp's plantar fasciitis is sufficiently serious to implicate the Eighth Amendment.

In considering the same factors for Kemp's sinusitis, I again conclude that the condition was not sufficiently serious to implicate the Eighth Amendment. Dr. Alexis Lang, the DOCS's Regional Medical Director for the Fishkill Region, concluded that none of Kemp's sinus related conditions were "life threatening or seriously debilitating." (Lang Aff. ¶ 50.) While some of the physicians who examined Kemp found that surgery was indicated ( see, e.g., Def't 56.1 Stmt. ¶¶ 42-43, 59, 71), others recommended further tests and medication ( id. at 73, 87-90). Although Kemp's sinuses were causing him pain, he does not indicate that the pain was severe. He states simply that his sinuses became painful during his time at Arthur Kill Correctional Facility. (Kemp Dep. 20.) His treatment included numerous medications for his condition, including over the counter medications for allergies as well as antibiotic treatment. The condition, which was being treated and which eventually improved with that treatment ( see Schulman Decl. ¶¶ 20-23, 87-88), was not a serious medical condition.

Moreover, hindsight can be used in the objective assessment of whether Kemp had serious medical needs. In a case where an HIV positive prisoner did not receive his medication for brief periods during his incarceration, the Second Circuit held that among the factors to be considered in determining whether a medical condition or need is sufficiently serious to implicate the Eight Amendment, "[t]he absence of adverse medical effects or demonstrable physical injury is one such factor that may be used." Smith, 316 F.3d at 187 (citations omitted).

Here, Kemp did eventually receive the treatment he sought for his plantar fasciitis and his sinuses improved with medical treatment, as opposed to the surgical treatment he sought. Kemp does not allege that he was adversely affected by the delay in the treatment for his feet. In fact, his condition may have recurred if surgery had been performed too early. Therefore, even if plantar fasciitis was a medical condition that was serious enough to implicate the Eighth Amendment, the delay in treatment here — where treatment was successfully provided — is not sufficiently serious. The same is true for sinusitis. Although I find that his sinusitis was not a sufficiently serious medical condition, even if it were, there were no "adverse medical effects or demonstrable physical injury" to support Kemp's contention that the medical need associated with his sinusitis was serious. Id. Instead, his condition improved with the medical care he received.

D. Deliberate Indifference

As stated above, Kemp does not make a sufficient showing that he had a serious medical condition or need during the relevant time period. However, even if his plantar fasciitis and/or sinusitis were serious enough to implicate the Eighth Amendment, his claims would not survive defendants' summary judgment motion because he has failed to adduce facts that would support a jury finding that any of the defendants acted with deliberate indifference.

1. Medical Staff

a. Dr. Mikulas Halko, Physician at Sing Sing Correctional Facility

Kemp's only plausible claim against Dr. Halko would arise from the fact that from the end of April of 1999 until July of 1999, Dr. Halko refused to see Kemp while the growths on the bottom of his feet were getting bigger. (Kemp Dep. 39-40.) Although it is not clear that Dr. Halko was aware of Kemp's desire to see him, even if he were, his actions or omissions do not rise to the level of deliberate indifference.

First, Kemp was seen during this period by the on-call nurse and given foot pads, antifungal cream and foot powder. Second, the nurses' notes indicate that a podiatrist referral was pending. Although this note was an error in that the referral needed to be renewed at Sing Sing, Dr. Halko's failure to follow-up sooner on the referral did not "evince a conscious disregard of a substantial risk of serious harm." Hernandez, 341 F.3d at 144 (quotation marks omitted). At most, this omission can be characterized as "an inadvertent failure to provide adequate medical care," which is not actionable under the Eighth Amendment. Smith, 316 F.3d at 184.

b. Dr. Kyeetint Maw, Physician at Sing Sing Correctional Facility

Dr. Maw did not regularly treat Kemp; he did so only when Dr. Halko was not available. There is no evidence supporting a claim that Dr. Maw was deliberately indifferent to Kemp's foot masses or to his edema. Although Kemp might believe that Dr. Maw's concern regarding the edema came at the cost of concern for Kemp's foot problem, this is by no means deliberate indifference. The exercise of medical judgment cannot be deliberate indifference, Hernandez, 341 F.3d at 146-47, and Kemp's disagreement with Dr. Maw's medical opinion is insufficient to support an Eighth Amendment claim.

2. Supervisor Liability

"Supervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quotation marks omitted). In other words, a plaintiff must show personal involvement on the part of the supervisor in the alleged constitutional violations to maintain a cause of action; "linkage in the prison chain of command" is not sufficient to implicate a commissioner or prison superintendent. Id. at 435 (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). In Hernandez v. Keane, the Second Circuit outlined the following ways in which the liability of a supervisor can be shown:

(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.

341 F.3d at 146 (citing Colon, 58 F.3d at 873).

a Dr. Alexis Lang, DOCS Regional Medical Director for the Fishkill Region

Dr. Lang reviewed the treatment provided to plaintiff by various DOCS medical staff and oustide specialists at Downstate, Sing Sing and Arthur Kill Correctional Facilities. (Lang Aff. ¶ 2.) Specifically, she affirmed a decision denying a referral to an orthopedist in May of 2000 based on the fact that Kemp was going to be away from the correctional facility for court proceedings. ( Id. at ¶ 26.) The decision suggested resubmission of the request for a referral when Kemp returned from court. ( Id.) Dr. Lang also affirmed a decision requiring a reevaluation by an otolaryngologist in September of 2000 after Dr. Mitchell, who treated Kemp at Arthur Kill, referred him for surgery to treat his sinusitis. ( Id. at ¶ 38.) Finally, a physician who was covering for Dr. Lang affirmed a decision that denied a request for an MRI of Kemp's feet, and instead suggested surgery or excision of the lesions on his feet. ( Id. at ¶ 42.)

None of these decisions reflects deliberate indifference. As discussed above, there was more than one course of treatment possible for both of Kemp's medical conditions and the exercise of medical judgment cannot constitute deliberate indifference. Hernandez, 341 F.3d at 146-47. The alternative treatment methods affirmed by Dr. Lang reflect medical judgments about the proper treatment of Kemp's conditions. See Hudson, 503 U.S. at 9.

The orthopedic referral was denied because the treatment may have been interrupted by Kemp's absence during his court trip and could be delayed because it was not urgent. Dr. Lang's second decision requesting reevaluation for the sinus surgery was sound medical judgment, especially since the condition was one that is "typically treated with conservative measures of courses of antibiotics, decongestant and steroid sprays." (Lang Aff. ¶ 56.) In the end, the decision to continue medical treatment proved to be fruitful, as Kemp no longer suffers the extent of sinusitis that led him to seek medical care for the condition. (Kemp Dep. 88.) Finally, the decision to perform surgery as opposed to an MRI on his feet, is one that Kemp agrees with. That treatment too was ultimately successful. (Kasabjan Aff. ¶¶ 8-9.) There is no genuine issue of material fact regarding whether Dr. Lang was deliberately indifferent to Kemp's serious medical conditions or needs. Accordingly, defendants' motion for summary judgment is granted with respect to the claims against Dr. Lang.

b. Dr. Lester Wright, Chief Medical Officer of DOCS

Dr. Wright is the person to whom Dr. Lang directly reports. Kemp alleges that he wrote Dr. Wright a letter complaining that he was being denied treatment. (Kemp Dep. 32-34.) Thus, he seeks to show that Dr. Wright was liable as a supervisor because of his "failure to act on information indicating that unconstitutional acts were occurring." Hernandez, 341 F.3d at 145. Although a copy of the letter is not in the record, Kemp did receive a response to that letter, which stated, inter alia, that "the facility's medical staff were in the best position to evaluate [his] medical needs." (Kemp Dep. 33.) This response was justified. Moreover, as noted above, neither Kemp's medical conditions nor the treatment he was receiving from his treating physicians implicated the Eighth Amendment.

Even if Kemp had created a genuine issue of material fact with respect to the conduct of the physicians who treated him, Wright has qualified immunity. To establish a qualified immunity defense, "the defendants must show that it was objectively reasonable . . . for them to believe that they had not acted with the requisite deliberate indifference." McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). The law allows supervisors "to rely upon the decisions of their predecessors or subordinates so long as those decisions do not appear to be obviously invalid, illegal or otherwise inadequate." Poe v. Leonard, 282 F.3d 123, 144 (2d Cir. 2002) (citation omitted). Based on the above, and given Wright's position as a Chief Medical Officer who is generally not involved in decisions regarding treatment of individual inmates, it was objectively reasonable for him to believe that his reliance on the decisions of Kemp's treating physicians and Dr. Lang's review of those decisions was not deliberate indifference.

c. Dr. John Perilli, Facility Health Services Director at Sing Sing Correctional Facility

Kemp's claim regarding Perilli was made under the mistaken belief that he was the health services director at Sing Sing when Kemp's podiatrist referral was denied. However, Perilli did not take the position until December 2, 1999, and the referral was denied in April or May of 1999. As he was not the health services director, he could not have been involved in the decision. Kemp admits as much. (Kemp Dep. 61-63.) Accordingly, defendants' motion for summary judgment is granted with respect to the claims against Perilli.

d. Thomas G. Eagen, Director of DOCS Inmate Grievance Program

According to defendants, Eagen was not involved in Kemp's medical treatment in any way because he would not have reviewed Kemp's grievance. Moreover, even if a person with no medical training gives "automatic and complete deference" to a decision by a physician, this is not, by itself, sufficient evidence of deliberate indifference. Brock, 315 F.3d at 164. There must be some proof that the person was aware that the medical decision was not protective of the prisoner's well-being. An allegation that non-medical personnel should not have deferred to medical personnel "amounts to an allegation of negligence. But negligence is not deliberate indifference." Id. Accordingly, defendants' motion for summary judgment is granted with respect to the claims against Eagen.

e. Charles Greiner, Superintendent of Sing Sing Correctional Facility and Dennis Breslin, Superintendent of Arthur Kill Correctional Facility

Kemp alleges that Greiner and Breslin were deliberately indifferent because they rejected Kemp's grievance regarding his medical treatment at their respective facilities. Factually, this is incorrect; superintendents are not generally involved in the medical treatment of inmates, and there is no evidence that they were involved in this case. (Lang Aff. ¶ 5.) In order to succeed on a claim against the superintendents, Kemp must show some personal involvement. Mere linkage in the prison chain of command is not sufficient to implicate a commissioner or prison superintendent. Richardson, 347 F.3d at 435 (citing Ayers, 780 F.2d at 210). Kemp provides no evidence to support his claim.

Moreover, the superintendents are shielded by qualified immunity. They are not physicians and "[t]here is no evidence that [they] . . . had the authority to intervene in admittedly medical decision[s] made" by the physicians responsible for the inmate. Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000). It was "objectively reasonable . . . for them to believe that they had not acted with the requisite deliberate indifference" because they reasonably relied on the medical staff to deal with Kemp's medical care. McKenna, 386 F.3d at 437. Accordingly, they are entitled to summary judgment on qualified immunity grounds because they are "non-doctors whose failure to intercede in the medical treatment of an inmate was, if wrongful, not objectively unreasonable." Cuoco, 222 F.3d at 111.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is directed to close the case.

So Ordered.