Nelson v. Nellie et al

Filing 19

ORDER granting defendant Alves' 10 Motion for Summary Judgment and dismissing the complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 1/19/12. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
DENNIS J. NELSON,

Plaintiff,
DECISION AND ORDER
11-CV-6045L
v.
DR. J. ALVES,

Defendant.
________________________________________________
Plaintiff, Dennis Nelson, appearing pro se, commenced this action pursuant to 42 U.S.C.
§ 1983. Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”) alleges that defendants violated his constitutional rights in
various ways during plaintiff’s confinement at Elmira Correctional Facility.
On November 14, 2011, the Court issued an order (Dkt. #16) dismissing plaintiff’s claims
against a number of defendants. The remaining defendant, Dr. J. Alves, now moves for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Defendant’s motion is granted. Plaintiff’s allegations against Alves generally consist of
conclusory assertions that Dr. Alves is not treating plaintiff’s various medical problems. His
response to defendant’s motion mostly asserts that Alves (and Dr. Peter Braselmann, a physician
employed by DOCCS who has examined plaintiff and reviewed his medical records, and who has
submitted a declaration in support of Dr. Alves’s motion) are lying, and that if the Court “want[s]
the truth,” the Court should contact various individuals and medical facilities. See Dkt. #18.
When opposing a motion for summary judgment, however, a plaintiff cannot simply
baldly assert that the movant is lying. Defendant has submitted admissible evidence that plaintiff

has received adequate medical treatment, and to defeat defendant’s motion, plaintiff “must come
forward with evidence showing that defendant[] ‘acted with deliberate indifference to his serious
medical needs.’” Johnson v. Wright, 324 Fed.Appx. 144, 144 (2d Cir. 2009) (quoting Pabon v.
Wright, 459 F.3d 241, 247 (2d Cir. 2006)); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976).
In any event, even assuming the truth of plaintiff’s conclusory assertions, all they show is
that he is dissatisfied with the level or type of treatment that he has received. There is no
evidence in the record indicating that Dr. Alves “had a culpable state of mind and intended
wantonly to inflict pain” on plaintiff. Beaman v. Unger, No. 10-CV-6480, 2011 WL 4829417, at
*2 (W.D.N.Y. Oct. 12, 2011) (citing Wilson v. Seiter, 501 U.S. 294, 299 (1991)). Even if he
were guilty of malpractice (and I do not believe that the evidence would support such a finding),
that does not make out a constitutional claim. Beaman, 2011 WL 4829417, at *3.

CONCLUSION

The motion for summary judgment by defendant Dr. J. Alves (Dkt. #10) is granted, and
the complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 19, 2012.

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