1 11-1788-pr Lewis v. Cunningham, et al.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 23 rd** **day of May, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **AMALYA L. KEARSE,** 8 **JOSEPH M. McLAUGHLIN,** 9 **Circuit Judges**

**.** 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **JOHN L. LEWIS, and all others** 13 **similarly situated,** 14 **Plaintiff-Appellant ,**  15 16 **JIMMY D. SMITH, and all others** 17 **similarly situated,** 18 **Plaintiff ,**  19 20 **-v.- 11-1788-pr** 21 22 **RAYMOND CUNNINGHAM, Superintendent,** 23 **Woodbourne Correctional Facility,** 24 **STEVEN P. LOWRY, PETER CHIAVARO, Deputy** 25 **Superintendant of Administrative** 26 **Services, Woodbourne Correctional** 27 **Facility, LESTER WRIGHT,** 28 **Defendants-Appellees ,**  292 **and** 1 2 **FRANK LANCELLOTTI, M.D., Clinical** 3 **Physician, Woodbourne Correctional** 4 **Facility, MERVAT R. MAKRAM, Clinical** 5 **Physician, Woodbourne Correctional** 6 **Facility, DENISE F. BOYD, Nurse** 7 **Administrator, Woodbourne** 8 **Correctional Facility, GLENN GOORD,** 9 **Comissioner, GEORGE E. PATAKI,** 10 **Defendants**

**.** 11

- - - - - - - - - - - - - - - - - - - - 12 13 **FOR APPELLANT:** ALEX S MITH(Robert N. Isseks, 14 Peter A. Sell, Middletown, NY, 15 on the brief ), New York, NY. 16 17 **FOR APPELLEES:** DAVID LAWRENCE III, Assistant 18 Solicitor General (Barbara D. 19 Underwood, Solicitor General, 20 Michael S. Belohlavek, Senior 21 Counsel), forEric T. 22 Schneiderman, Attorney General 23 of the State of New York, New 24 York, NY. 25 26 Appeal from a judgment of the United States District 27 Court for the Southern District of New York (Daniels, J. ). 28 29 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 30 **AND DECREED**that the judgment of the district court be 31
**AFFIRMED**

. 32 33 Plaintiff John L. Lewis appeals from a judgment of the 34 United States District Court for the Southern District of 35 New York (Daniels, J. ), granting defendants’ motion for 36 summary judgment and dismissing his claims brought under 42 37 U.S.C. § 1983. We assume the parties’ familiarity with the 38 underlying facts, the procedural history, and the issues 39 presented for review. 40 41 Lewis’s third amended complaint alleges that 42 defendants--officials at Woodbourne Correctional Facility, 43 and a New York Department of Corrections administrator--were 44 deliberately indifferent to his medical needs related to his 45 cardiovascular condition. The district court adopted the 463 magistrate judge’s report and recommendation granting 1 summary judgment in favor of defendants Lowry, Chiavaro, and 2 Wright because, inter alia, there was no evidence that they 3 were personally involved in the alleged constitutional 4 deprivations, and granting summary judgment in favor of 5 defendant Cunningham because, inter alia, there was no 6 evidence that he had acted with the requisite state of mind 7 to be deliberately indifferent to Lewis’s serious medical 8 needs. We affirm. 9 10 A prison official cannot be personally liable 11 under § 1983 on the basis of respondeat superioror simply 12 because he is atop the prison hierarchy. See Colon v. 13 Coughlin , 58 F.3d 865, 874 (2d Cir. 1995). Rather, a prison 14 official must have some degree of personal involvement in an 15 alleged constitutional deprivation to be personally liable. 16 Id. After conducting a de novo review of the record, we 17 agree that plaintiff has not put forth sufficient evidence 18 of personal involvement by defendants Lowry, Chiavaro, and 19 Wright. Lewis made one unspecified complaint to Lowry 20 (right before Lowry retired), but a vague complaint is 21 insufficient to permit a jury to find that a prison 22 official’s failure to act in response was deliberate 23 indifference. See Colon , 58 F.3d at 873. Although Lewis 24 complained to Chiavaro three times in person, Lewis concedes 25 that he never wrote to Chiavaro because the complaints “were 26 mainly security issues and medical issues” and, according to 27 Lewis, Chiavaro “really didn’t have authority to override 28 medical or security.” Appellant’s App. 148. Each time, 29 Chiavaro advised him to consult his primary care physician 30 or visit sick call. 31 32 Lewis argues that Wright, chief medical officer in the 33 New York Department of Corrections, had personal involvement 34 because he failed to establish a specific policy for caring 35 for cardiac patients. Instead, prison officials handled 36 each prisoner’s medical needs on an individual basis. In 37 certain circumstances, a prison official can be personally 38 liable for a § 1983 claim by creating or maintaining a 39 custom or policy “under which unconstitutional practices 40 occurred.” See Brock v. Wright , 315 F.3d 158, 165 (2d Cir. 41 2003) (internal quotation marks omitted). Here, unlike 42 Brock , there was no custom or policy in place that caused 43 the deprivations that Lewis complains of; rather, he is 44 simply unhappy with the way in which Woodbourne staff 45 accommodated his medical conditions on an ad hocbasis. 464 Accordingly, summary judgment was properly granted in 1 Wright’s favor. 2 3 **[2]** As to Cunningham, we agree with the district court that 4 Lewis failed to proffer evidence that he acted with 5 deliberate indifference. “An official acts with the 6 requisite deliberate indifference when that official ‘knows 7 of and disregards an excessive risk to inmate health or 8 safety; the official must both be aware of facts from which 9 the inference could be drawn that a substantial risk of 10 serious harm exists, and he must also draw the inference.’” 11 Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir. 1998) 12 (quoting Farmer v. Brennan , 511 U.S. 825, 837 (1994)). In 13 this case, there is simply no evidence that Cunningham, in 14 delegating and responding to Lewis’s complaints, acted with 15 “a state of mind that is the equivalent of criminal 16 recklessness.” Hernandez v. Keane , 341 F.3d 137, 144 (2d 17 Cir. 2003) (internal quotation marks omitted). 18 19 Finding no merit in Lewis’s remaining arguments, we 20 hereby **AFFIRM** the judgment of the district court. 21 22 23 FOR THE COURT: 24 CATHERINE O’HAGAN WOLFE, CLERK 25 26