Boomer v. Goord, et al

Filing 88

ORDER granting defendants' 85 Motion for Summary Judgment and dismissing the complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 9/19/11. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
SOLOMON BOOMER,

Plaintiff,
DECISION AND ORDER
03-CV-6348L
v.
JOSE M. DE PERIO,
STEPHEN LASKOWSKI,
ROBERT M. TAKOS,
LESTER N. WRIGHT, M.D.,

Defendants.
________________________________________________

Plaintiff Solomon Boomer, appearing pro se, has filed a complaint pursuant to 42 U.S.C
§ 1983, alleging that defendants violated his constitutional rights by acting with deliberate
indifference to his medical condition–diabetes–while he was incarcerated at Attica Correctional
Facility. (Docket # 6). In December 2005, this Court granted summary judgment to all defendants.
405 F.Supp.2d 259. As to three of the defendants, the district court determined that Boomer had
failed to exhaust his administrative remedies; as to the remaining two, physicians Stephen Laskowski
and Joseph DePerio, the Court held that the record contained “no evidence of any kind” that they
were deliberately indifferent to his medical condition. Id. at 264.
On appeal by plaintiff, the Second Circuit remanded the case for reconsideration as to
Laskowski and DePerio. 283 F.Appx. 855 (2d Cir.2008). Although the court agreed that Boomer’s
claims, “as stated in the complaint and developed in his deposition testimony, do not rise to the level
of a constitutional violation,” it remanded the case “in an abundance of caution” based on plaintiff’s

assertion that, for reasons beyond his control, his medical records had never been presented to this
Court, and because defendants had failed to respond to Boomer’s interrogatories. The Court of
Appeals directed the district court “to reconsider the motion for summary judgment in light of
plaintiff’s medial records and the responses to his interrogatories after these documents are properly
submitted to the Court.” Id. at 858.
Laskowski and DePerio have now renewed their motion for summary judgment. They have
filed their interrogatory answers (Dkt. #52, #64), and plaintiff has filed copies of his medical records.
(Dkt. #87-1).
Having reviewed those materials, I adhere to my prior ruling in this case, and find that
plaintiff has not presented evidence giving rise to any genuine issues of material fact. I also find that
defendants are entitled to summary judgment.
If anything, plaintiff’s medical records merely reaffirm that he was given extensive medical
treatment, on repeated occasions. The records show that he was seen by medical staff over a long
period of time, and that various medications and treatments were prescribed and administered.
See Dkt. #87-1 at 2-18. The Court has found no indication in those records that defendants
deliberately ignored plaintiff’s complaints or medical needs.
Nor do defendants’ interrogatory responses alter this conclusion. Drs. DePerio and
Laskowski have outlined their treatment of plaintiff, and I see nothing in those responses that gives
rise to any issue of fact or that supports plaintiff’s claims. In short, plaintiff continues to do nothing
more than disagree with the course of treatment that was given him. That is not enough to support
an Eighth Amendment claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Guarneri v. West,
___ F.Supp.2d ___, 2011 WL 1709843, at *3 (W.D.N.Y. 2011).

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CONCLUSION

Defendants’ motion for summary judgment (Dkt. #85) is granted, and the complaint is
dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
September 19, 2011.

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