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11-1788-pr

Lewis v. Cunningham, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 23rd 4 day of May, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 AMALYA L. KEARSE,

9 JOSEPH M. McLAUGHLIN,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 JOHN L. LEWIS, and all others

14 similarly situated, 

15 Plaintiff-Appellant,

16

17 JIMMY D. SMITH, and all others

18 similarly situated,

19 Plaintiff,

20

21 -v.- 11-1788-pr

22

23 RAYMOND CUNNINGHAM, Superintendent,

24 Woodbourne Correctional Facility,

25 STEVEN P. LOWRY, PETER CHIAVARO, Deputy

26 Superintendant of Administrative

27 Services, Woodbourne Correctional

28 Facility, LESTER WRIGHT, 

29 Defendants-Appellees,
2

1 and

2

3 FRANK LANCELLOTTI, M.D., Clinical

4 Physician, Woodbourne Correctional

5 Facility, MERVAT R. MAKRAM, Clinical

6 Physician, Woodbourne Correctional

7 Facility, DENISE F. BOYD, Nurse

8 Administrator, Woodbourne

9 Correctional Facility, GLENN GOORD,

10 Comissioner, GEORGE E. PATAKI,

11 Defendants. 

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13

14 FOR APPELLANT: ALEX SMITH (Robert N. Isseks,

15 Peter A. Sell, Middletown, NY,

16 on the brief), New York, NY.

17

18 FOR APPELLEES: DAVID LAWRENCE III, Assistant

19 Solicitor General (Barbara D.

20 Underwood, Solicitor General,

21 Michael S. Belohlavek, Senior

22 Counsel), for Eric T.

23 Schneiderman, Attorney General

24 of the State of New York, New

25 York, NY.

26

27 Appeal from a judgment of the United States District

28 Court for the Southern District of New York (Daniels, J.).

29

30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

31 AND DECREED that the judgment of the district court be

32 AFFIRMED. 

33

34 Plaintiff John L. Lewis appeals from a judgment of the

35 United States District Court for the Southern District of

36 New York (Daniels, J.), granting defendants’ motion for

37 summary judgment and dismissing his claims brought under 42

38 U.S.C. § 1983. We assume the parties’ familiarity with the

39 underlying facts, the procedural history, and the issues

40 presented for review.

41

42 Lewis’s third amended complaint alleges that

43 defendants--officials at Woodbourne Correctional Facility,

44 and a New York Department of Corrections administrator--were

45 deliberately indifferent to his medical needs related to his

46 cardiovascular condition. The district court adopted the
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1 magistrate judge’s report and recommendation granting

2 summary judgment in favor of defendants Lowry, Chiavaro, and

3 Wright because, inter alia, there was no evidence that they

4 were personally involved in the alleged constitutional

5 deprivations, and granting summary judgment in favor of

6 defendant Cunningham because, inter alia, there was no

7 evidence that he had acted with the requisite state of mind

8 to be deliberately indifferent to Lewis’s serious medical

9 needs. We affirm. 

10

11 A prison official cannot be personally liable

12 under § 1983 on the basis of respondeat superior or simply

13 because he is atop the prison hierarchy. See Colon v.

14 Coughlin, 58 F.3d 865, 874 (2d Cir. 1995). Rather, a prison

15 official must have some degree of personal involvement in an

16 alleged constitutional deprivation to be personally liable. 

17 Id. After conducting a de novo review of the record, we

18 agree that plaintiff has not put forth sufficient evidence

19 of personal involvement by defendants Lowry, Chiavaro, and

20 Wright. Lewis made one unspecified complaint to Lowry

21 (right before Lowry retired), but a vague complaint is

22 insufficient to permit a jury to find that a prison

23 official’s failure to act in response was deliberate

24 indifference. See Colon, 58 F.3d at 873. Although Lewis

25 complained to Chiavaro three times in person, Lewis concedes

26 that he never wrote to Chiavaro because the complaints “were

27 mainly security issues and medical issues” and, according to

28 Lewis, Chiavaro “really didn’t have authority to override

29 medical or security.” Appellant’s App. 148. Each time,

30 Chiavaro advised him to consult his primary care physician

31 or visit sick call. 

32

33 Lewis argues that Wright, chief medical officer in the

34 New York Department of Corrections, had personal involvement

35 because he failed to establish a specific policy for caring

36 for cardiac patients. Instead, prison officials handled

37 each prisoner’s medical needs on an individual basis. In

38 certain circumstances, a prison official can be personally

39 liable for a § 1983 claim by creating or maintaining a

40 custom or policy “under which unconstitutional practices

41 occurred.” See Brock v. Wright, 315 F.3d 158, 165 (2d Cir.

42 2003) (internal quotation marks omitted). Here, unlike

43 Brock, there was no custom or policy in place that caused

44 the deprivations that Lewis complains of; rather, he is

45 simply unhappy with the way in which Woodbourne staff

46 accommodated his medical conditions on an ad hoc basis. 
4

1 Accordingly, summary judgment was properly granted in

2 Wright’s favor. 

3

4 [2] As to Cunningham, we agree with the district court that

5 Lewis failed to proffer evidence that he acted with

6 deliberate indifference. “An official acts with the

7 requisite deliberate indifference when that official ‘knows

8 of and disregards an excessive risk to inmate health or

9 safety; the official must both be aware of facts from which

10 the inference could be drawn that a substantial risk of

11 serious harm exists, and he must also draw the inference.’” 

12 Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)

13 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In

14 this case, there is simply no evidence that Cunningham, in

15 delegating and responding to Lewis’s complaints, acted with

16 “a state of mind that is the equivalent of criminal

17 recklessness.” Hernandez v. Keane, 341 F.3d 137, 144 (2d

18 Cir. 2003) (internal quotation marks omitted). 

19

20 Finding no merit in Lewis’s remaining arguments, we

21 hereby AFFIRM the judgment of the district court.

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23

24 FOR THE COURT:

25 CATHERINE O’HAGAN WOLFE, CLERK

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