Faust v. Jun et al
DECISION AND ORDER: Defendants' Motion for Summary Judgment 52 is GRANTED, and this case is DISMISSED WITH PREJUDICE. The Court hereby certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in goo d faith, and leave to appeal to the Court of Appeals as a poor person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/31/17. A copy of the Decision and Order and NEF have been mailed to the pro se Plaintiff. (SCE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vDR. YOUNG JUN, et. al.,
Pro se Plaintiff Dwayne Faust filed this civil rights action pursuant to 42 U.S.C. §§ 1983,
1985 and 1986 against prison officials and medical personnel, alleging they violated his rights
under the Eighth Amendment of the United States Constitution. ECF No. 40. Defendants Dr.
Young Jun, Dr. Jadow Rao, Dr. Ranee Christopher, Dr. Lesley Germain, Chief Medical Officer
Dr. Carl J. Koenigsmann, Deborah Graf, Carol Linsey, Gregg Mohring, Sergeant Kenneth Kyre,
Officer Guy Polucci, and Superintendent David Unger, now renew1 their motion for summary
judgment. ECF No. 52. Although the Court granted Plaintiff an extension of time to file a response
until May 3, 2017 (see ECF No. 57), Plaintiff has not filed any response. For the following reasons,
Defendants’ motion is GRANTED, and this case is dismissed with prejudice.
On January 29, 2013, Plaintiff injured his left knee while incarcerated in the Wyoming
Correctional Facility (“Wyoming C.F.”). He was seen and treated by Deborah Graf, a Physician
She noted Plaintiff’s left knee was swollen and showed minor abrasions.
Defendants filed a Motion for Summary Judgment on May 18, 2015 (ECF No. 17) which the Court
denied without prejudice (ECF No. 26).
administered pain medication, issued crutches, transferred him to Attica Correctional Facility
(“Attica C.F.”) for further medical treatment and recommended rest. At Attica C.F., Plaintiff’s
knee was x-rayed, he was given pain medication, issued a brace and told to keep his leg elevated.
On January 31, 2013, Dr. Jadow Rao saw Plaintiff, who was complaining of “extreme
pain.” ECF No. 40 at 4. Dr. Rao noted the swelling had gone down and cleared Plaintiff to return
to Wyoming C.F. Before his transport, Plaintiff’s brace was taken from him because it had a piece
of metal in it. The following day, Plaintiff was seen by Dr. Young Jun at Wyoming C.F. who
noted swelling and cellulitis. Plaintiff returned to Attica C.F., where he was treated until February
During that time, Dr. Rao examined Plaintiff’s leg, and prescribed various pain
medications and antibiotics. He was sent back to Wyoming C.F. on February 7, 2013 and
encouraged to walk. Prior to transport, his mobility aids were again taken from him.
On February 8, 2013, Dr. Jun again noted swelling in Plaintiff’s knee and ordered an M.R.I.
Plaintiff alleges Dr. Jun failed to address his “complaint that he was unable to walk without severe
pain.” ECF No. 40 at 5-6. On February 19, 2013,2 Plaintiff attended sick call and was seen by
Carol Linsey, a nurse, who noted Plaintiff, who was in a wheelchair, wanted to see the doctor for
a mobility aid. On February 22, 2013, Dr. Ranee Christopher, a radiologist not affiliated with the
New York State Department of Corrections and Community Supervision (“DOCCS”), issued an
M.R.I report finding “extensive injury to the knee.” ECF No. 53-1 at 15.
On Saturday, February 23, 2013,3 Plaintiff re-injured his knee and requested emergency
sick call. Correctional Officer Guy Paolucci denied Plaintiff’s request and, as a result, Plaintiff
The Amended Complaint states February 18, but medical records indicate it was February 19.
The Amended Complaint states the date was February 22, 2013, but Plaintiff apparently clarified
in his deposition that it was Saturday, February 23, 2013. See ECF No. 52-6 at 3 n. 1. The Court says
“apparently clarified” because although Defendants cite to Plaintiff’s deposition transcript throughout their
Rule 56 Statement and Memorandum (see e.g. ECF No. 52-1 at 1), they have not provided such transcript
waited to attend sick call until February 25, 2013. He was seen by a nurse who noted his left knee
and ankle were swollen, and who sent him to Dr. Jun. After reviewing Plaintiff’s M.R.I. report,
Dr. Jun issued Plaintiff crutches, a knee brace and a sleeve.
The same day, Plaintiff filed a grievance detailing the events from Plaintiff’s initial injury.
Plaintiff met with Sergeant Kenneth Kyre on March 4, 20134 about his grievance. Plaintiff alleges
Kyre attempted to coerce him to withdraw the grievance but he refused. Plaintiff’s grievance was
denied by Superintendent David Unger and his appeal was later denied by the Central Office
Review Committee (“CORC”).
On March 15, 2013, still suffering from severe pain, Plaintiff went to sick call and was
informed he had a torn Anterior Cruciate Ligament (“ACL”) and Lateral Collateral Ligament
(“LCL”) in his left knee. ECF No. 40 at 6. Plaintiff used crutches until he was called back to the
infirmary on March 21, 2013 by Dr. Jun and was then issued a wheelchair.
Plaintiff was transferred to Wende Correctional Facility to be seen by Dr. Lesly Germain,
an orthopedic surgeon, on April 18, 2013. Dr. Germain noted Plaintiff exhibited drop foot, a
condition that causes the front of the foot to drag while walking. On June 11,2013, Dr. Germain
performed anthroscopic surgery to repair Plaintiff’s knee. Dr. Jun removed Plaintiff’s stitches on
June 24, 2013 and Plaintiff was sent for his post-surgery checkup the next day. Plaintiff alleges
that his questions about treatment or surgery to repair his drop foot were not addressed at either
to the Court. Nevertheless, since Plaintiff does not challenge any portions of Defendants’ Statement of
Material Facts, the Court accepts the facts as true for purposes of this motion. See L. R. Civ. P. 56(a)(2).
Plaintiff’s Amended Complaint states the meeting with Kyre was March 9, 2013. ECF No. 40 at 6.
Kyre’s declaration and written statement regarding Plaintiff’s grievance indicate the meeting was March 4.
See ECF No. 52-3 at 1, 5; ECF No. 52-6 at 5. This minor discrepancy does not affect the outcome of the
appointment. Plaintiff began physical therapy, attending as many as two session per week, from
July 2, 2013 through December 31, 2013.
Plaintiff was scheduled for surgery to repair his drop foot with Dr. Germain on September
26, 2013, but the surgery ultimately did not go forward. Plaintiff was fitted for an Ankle Foot
Orthosis brace for his foot the same day.
III. LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most favorable
to the non-moving party and draws all reasonable inferences in favor of the non-moving party. Id.
at 255. The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. When the moving party
has met this initial responsibility, the non-moving party must come forward with “specific facts
showing a genuine issue [of material fact] for trial.” Fed. R. Civ. P. 56(e)(2).
If a non-moving party fails to oppose a summary judgment motion, then “summary
judgment, if appropriate, shall be entered against” him. Fed. R. Civ. P. 56(e). Indeed, an opposing
party may not rely merely on allegations or denials in its own pleading, but must set forth specific
facts showing that there is a genuine issue for trial. Id. Where the non-moving party “chooses the
perilous path of failing to submit a response to a summary judgment motion, the district court may
not grant the motion without first examining the moving party’s submission to determine if it has
met its burden of demonstrating that no material issue of fact remains for trial.” Amaker v. Foley,
274 F.3d 677, 681 (2d Cir. 2001).
“To state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege that the challenged
conduct (1) was attributable to a person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.”
Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d
865, 875-76 (2d Cir.1994)). A prerequisite for liability under a Section 1983 claim is “personal
involvement” by the defendants in the alleged constitutional deprivation. Spencer v. Doe, 139
F.3d 107, 112 (2d Cir. 1998).
A defendant may be ‘personally involved’ in causing a
constitutional deprivation if: (1) defendant participated directly in
the alleged infraction; or (2) acting in a supervisory capacity,
defendant (a) failed to remedy a continuing or egregious wrong after
learning of a violation, (b) created a policy or custom under which
the unconstitutional practices occurred or allowed such policy or
custom to continue, or (c) was ‘grossly negligent’ in managing
subordinates who actually caused the constitutional deprivation.
Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992) (citing Williams v. Smith, 781
F.2d 319, 323-24 (2d Cir. 1986)).
A. Scope of Plaintiff’s Lawsuit
Defendants assert that Plaintiff has failed to exhaust his administrative remedies as required
by The Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). In relevant part, the
PLRA provides that “[n]o action shall be brought with respect to prison conditions under Section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). As such, Defendants argue that the scope of Plaintiff’s lawsuit should be limited to
the contents of Plaintiff’s single filed grievance and further limited in time to the seven-day period
Plaintiff was without crutches, or February 19-25, 2013. Defendants contend they are entitled to
summary judgment regarding the allegations in Plaintiff’s Amended Complaint that address events
that occurred after February 25, 2013 because they are not exhausted.
The Court declines to so limit Plaintiff’s Amended Complaint. Plaintiff did file a grievance
relating to his medical care which he pursued through appeal to the CORC. While the Amended
Complaint includes events that transpired after the grievance filing date and includes Defendants
not named in Plaintiff’s filed grievance, the Court finds it unnecessary to so limit this legal action.
B. Plaintiff’s Medical Claims
Plaintiff’s claims against Defendants Christopher, Germain, Graf, Jun, Rao, Linsey and
Paolucci all relate to Plaintiff’s medical treatment and allege Defendants were deliberately
indifferent to Plaintiff’s medical conditions. “In order to establish an Eighth Amendment claim
arising out of inadequate medical care, a prisoner must prove deliberate indifference to his serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). This standard incorporates both
objective and subjective elements. The objective “medical need” element measures the severity of
the alleged deprivation, while the subjective “deliberate indifference” element ensures that the
defendant prison official acted with a sufficiently culpable state of mind. Smith v. Carpenter, 316
F.3d 178, 183–84 (2d Cir. 2003) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
“A serious medical condition exists where ‘the failure to treat a prisoner’s condition could result
in further significant injury or the unnecessary and wanton infliction of pain.’”
Barkley, 219 F.3d 132, 136-137 (2d Cir. 2000) (quoting Chance, 143 F.3d at 702 (internal
quotation marks omitted)). Plaintiff must also adequately allege that the prison official or medical
personnel had actual knowledge of Plaintiff’s serious medical needs, but was deliberately
indifferent to those serious needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Brock v.
Wright, 315 F.3d 158 (2d Cir. 2003); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
1. Defendants Christopher, Graf and Germain
Plaintiff alleges that Defendants Christopher, Graf and Germain failed to diagnose and treat
his drop foot and denied him surgery to treat his drop foot. ECF No. 40 at 9. Defendants argue
they are entitled to summary judgement because Christopher is not state actor, and at best, the
allegations against Christopher, Graf and Germain amount to medical malpractice, which is not
actionable under Section 1983.
Christopher read Plaintiff’s M.R.I. images and submitted a report on February 22, 2013.
See ECF No. 53-1 at 15. She asserts she was neither a state employee nor working pursuant to a
contract with the state. ECF No. 52-6 at 13.5 However, private doctors who provide medical care
to state prison inmates may be subject to liability under Section 1983. West v. Atkins, 487 U.S.
42, 55-56 (1988). “It is the physician’s function within the state system, not the precise terms of
his employment, that determines whether his actions can fairly be attributed to the State in a suit
under 42 U.S.C. § 1983.” Id.
Defendants state, and Plaintiff does not contest, that Plaintiff testified at his deposition that
he did not recall any contact with Christopher, and Christopher asserts she never met Plaintiff.
ECF No. 52-6 at 12. As such, there are no facts under which a reasonable factfinder could conclude
that Christopher is a person acting under color of state law for purposes of 42 U.S.C. § 1983. See
Defendants refer to the “Christopher Declaration” throughout their Motion for Summary Judgment
(ECF Nos. 52-1 at 3; 52-6 at 3, 12-13) but there is no such attachment to their current pleadings. There is,
however, a “Christopher Declaration” attached to Defendants’ prior Motion for Summary Judgment (see
ECF No. 17-3), which was denied without prejudice by the Court on February 9, 2016. ECF No. 26.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Zemsky v. City of New York, 821 F.2d
148, 151 (2d Cir. 1987). Moreover, given her very limited role in Plaintiff’s treatments, these
allegations fall woefully short of establishing a claim for deliberate indifference against her.
Accordingly, summary judgment is granted in Christopher’s favor.
Similarly, Defendant Graf is entitled to summary judgment because Plaintiff’s allegations
fail to establish he “was actually deprived of adequate medical care.” Salahuddin v. Goord, 467
F.3d 263, 279 (2d Cir. 2006). Plaintiff saw Graf only on the date of his initial knee injury, January
29, 2013, at which time she “observed swelling and superficial abrasion.” ECF No. 46 at 1-2.
Graf issued Plaintiff crutches and pain medication, and transferred him to the Attica C.F. infirmary.
ECF No. 40 at 4. On these facts, Plaintiff attempts to allege that Graf was at best negligent for not
diagnosing his drop foot at the time of his initial injury. However, negligence, even if it constitutes
medical malpractice, does not state a constitutional claim. See Estelle, 429 U.S. at 105-06.
Accordingly, Graf is entitled to summary judgment.
Germain met with Plaintiff several times, beginning on April 18, 2013 where she discussed
with Plaintiff various treatment options for his leg. ECF No. 53-1 at 21.6 Germain noted Plaintiff’s
drop foot during this initial consult. Id. She recommended and performed anthroscopic surgery
to repair Plaintiff’s knee on June 11, 2013. Plaintiff alleges that despite noting his drop foot,
Germain did nothing to “address the serious medical problem.” ECF No. 40 at 7. However, upon
her recommendation, electrical studies were conducted to further evaluate the extent of Plaintiff’s
nerve damage. See ECF No. 17-4 at 2; ECF No. 47 at 3. Germain saw Plaintiff again and
Again, similar to the “Christopher Declaration,” Defendants refer to the “Germain Declaration”
throughout their Motion for Summary Judgment (ECF Nos. 52-1 at 7-8; 52-6 at 6-7, 14) but there is no
such attachment to their pleadings. There is, however, a “Germain Declaration” attached to Defendants’
prior Motion for Summary Judgment (see ECF No. 17-4), which was denied without prejudice by the Court
on February 9, 2016. ECF No. 26.
scheduled surgery for his drop foot for September 26, 2013. According to Germain, after a
discussion with Plaintiff that day, Plaintiff ultimately decided to not have surgery and was fitted
for a foot brace. ECF No. 52-1 at 8-9. Plaintiff initially alleged that Germain refused to perform
the surgery (id. 9; ECF No. 40 at 8) but he does not dispute that he was fitted for a foot brace for
this condition. See ECF No. 40 at p. 8.
Again, Plaintiff’s allegations against Germain sound in negligence or medical malpractice.
However, “[b]ecause the Eighth Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the
level of a constitutional violation.” Smith, 316 F.3d at 184. Moreover, an isolated failure to
provide medical treatment, without more, is generally not actionable unless the surrounding
circumstances suggest a degree of deliberateness, rather than inadvertence, in the failure to render
meaningful treatment. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987). Plaintiff’s allegations
do not demonstrate that Germain acted with the culpable state of mind to deny him surgery, as
even as Plaintiff concedes that he was fitted for an Ankle Foot Orthosis and brace the same day.
Disagreement over courses of treatment do not rise to the level of a Constitutional violation. See
Chance, 143 F.3d at 703 (“It is well-established that mere disagreement over the proper treatment
does not create a constitutional claim.”). As such, summary judgment is granted in Germain’s
2. Defendants Rao and Jun
Plaintiff alleges Rao acted with deliberate indifference when he returned Plaintiff to
Wyoming C.F. with the recommendation that Plaintiff walk on his injured leg “despite being aware
of edemic [sic] swelling and complaint of severe pain…knowing that [Plaintiff] would suffer
extreme pain.” ECF No. 40 at 8. Plaintiff further alleges Rao and Jun failed to properly diagnose
his drop foot, delayed treatment of his torn ACL and LCL and refused to timely issue mobility
aids. ECF No. 40 at 9.
Rao asserts that his advice to Plaintiff that he should walk on his injured knee is good
medical advice because, “given the nature of the injury[,] walking is important to prevent
ankyloses (stiffness of the joint) which would promote faster recover.” ECF No. 52-5 at 2. Rao
also states he did not diagnose Plaintiff’s drop foot condition because, when he saw Plaintiff “there
was no evidence of drop foot [and] Plaintiff did not complain about foot weakness or other factors
that would indicate drop foot.” ECF No. 52-5 at 1-2. Jun contends that he provided Plaintiff with
extensive medical care. See ECF No. 52-6 at 25-26.
As discussed supra, “a complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment under the Eighth
Amendment.” Estelle, 429 U.S. at 106. Further, to the extent that Plaintiff disagrees with Rao’s
or Jun’s medical decisions, and makes conclusory allegations of their deliberate indifference, such
allegations cannot negate Plaintiff’s medical records which show extensive, continuing care of
Plaintiff’s injured leg. See Wright v. Genovese, 694 F.Supp.2d 137, 156–57 (N.D.N.Y. 2010)
(“Plaintiff’s ... conclusory allegations of deliberate indifference do not negate the extensive
evidence that [the doctor] and others reasonably and diligently addressed plaintiff's medical needs
over an extended period of time.”) Accordingly, Rao and Jun are entitled to summary judgment.
3. Defendant Linsey
When Plaintiff was transported back to Wyoming C.F. on February 7, 2013, correctional
officers allegedly took his crutches and knee brace from him. ECF No. 40 at 5. Plaintiff says he
reported this to Linsey, a nurse, who, “despite being made aware of the serious medical situation
and of [Plaintiff’s] complaint of pain, failed to investigate the matter or take any action” to return
his crutches to him. Id. Later, on February 19, 2013, Linsey saw Plaintiff during sick call. She
noted that Plaintiff was in a wheelchair awaiting an M.R.I., and wanted to see a doctor for a
mobility aid. ECF No. 53 at 17. The note states “Plan: MD call out #3.” Id. Plaintiff was without
a mobility aid until February 25, 2013, when Dr. Jun issued him crutches, a knee brace and ankle
sleeve. ECF No. 40 at 6.
Plaintiff contends that Linsey acted with deliberate indifference to his serious medical need
when she failed to issue him a mobility aid. Linsey claims she did not intentionally deny plaintiff
a mobility aid, namely, crutches, nor did she intend to harm him. ECF No. 52-4 at 2. Linsey
asserts that when she saw Plaintiff, he was in a wheelchair and she therefore did not see a need to
issue him crutches. Id. Here, any delay in issuing Plaintiff crutches or other mobility aid, is
insufficient to constitute a sufficiently serious deprivation. See, e.g., Chatin v. Artuz, 28 F. App’x
9, 10-11 (2d Cir. 2001) (Plaintiff “claims that the medical attention he received at Green Haven
Correctional Facility was inadequate because ... a nurse failed to provide him immediately with
crutches, ice or pillows.... None of these allegations rises to the level of deliberate indifference to
[plaintiff’s] serious medical needs.”); Williamson v. Goord, No. 02–CV–00521, 2006 WL
1977438 at *21 (N.D.N.Y. July 11, 2006) (denial of crutches does not constitute deliberate
indifference where it does not lead to death, degeneration, or extreme pain). Accordingly,
summary judgment is granted in Linsey’s favor.
4. Defendant Paolucci
Plaintiff alleges Officer Paolucci denied Plaintiff’s emergency sick call after he re-injured
his knee on Saturday February 23, 2013, allegedly refusing to call the hospital “unless [Plaintiff]
was dying.” ECF No. 52-6 at 5. As a result, Plaintiff allegedly spent the weekend in bed and took
Motrin (id. at 3), and went to sick call Monday morning, February 25, 2013. Paolucci argues he
is entitled to summary judgement because the temporary delay in medical treatment did not worsen
Plaintiff’s existing injury.
Plaintiff fails to adduce any facts to demonstrate that Paolucci knew of and disregarded an
“excessive risk” to Plaintiff’s health. Farmer, 511 U.S. at 837. Plaintiff does not allege that his
injury was exacerbated due to the delay in attending sick call, nor can he refute that he was seen
at sick call within two days of his injury. See Allen v. Ford, 880 F.Supp.2d 407, 411 (W.D.N.Y.
2012) (finding no medical indifference where the inmate’s request for emergency sick call was
denied but the inmate was seen at sick call the following day). As such, Paolucci is entitled to
5. Defendants Koenigsmann and Mohring
Plaintiff alleges that Dr. Carl Koenigsmann, Chief Medical Officer of DOCCS, failed to
“ensure proper training and performance” of medical personnel who treated Plaintiff, and Gregg
Mohring, a Nurse Administrator, failed to “properly monitor the nurses under his supervision.”
ECF No. 40 at 10. Defendants argue that they are entitled to summary judgment because they
were not personally involved in any of Plaintiff’s medical treatment and the doctrine of respondeat
superior cannot be applied to them. The Court agrees.
As a prerequisite to establishing a claim against a defendant in a § 1983 action, a plaintiff
must allege that a defendant had some personal involvement in the allegedly unlawful conduct.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). It is well-settled that a supervisory defendant
must have been personally involved in a constitutional deprivation to be held liable under § 1983.
Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). “A plaintiff cannot base liability solely on the
defendant’s supervisory capacity or the fact that he held the highest position of authority within
the relevant governmental agency or department.” Houghton v. Cardone, 295 F. Supp. 2d 268,
276 (W.D.N.Y. 2003) (internal quotation and punctuation omitted).
Plaintiff makes no specific allegations about either Defendants’ involvement in the
complained-of events. Instead, he states only Defendants’ titles and responsibilities as Chief
Medical Officer and Nurse Administrator, respectively. Without more, this is insufficient to create
Accordingly, the Court grants summary judgement in favor of
Koenigsmann and Mohring.
6. Defendants Kyre and Unger
Plaintiff asserts Sergeant Kyre “intentionally sought to deny [Plaintiff’s] First Amendment
right to redress the government by use of coercion.” ECF No. 40 at 6. Plaintiff allegedly met with
Defendant Kyre on March 4, 2013 to discuss his grievance. Plaintiff claims Kyre attempted to
coerce Plaintiff to withdraw his grievance and he refused. Kyre denies these allegations and offers
in support a statement he wrote on March 9, 2013 regarding the incident. Kyre asserts that
Plaintiff, after initially being willing to withdraw the grievance, decided not to because “he thought
it would terminate the rest of the grievance.” ECF No. 52-3 at 5.
Plaintiff’s claim against Kyre fails because there is no constitutional right of access to the
established inmate grievance program. Davis v. Buffardi, No. 01-CV-0285 (GLS/GJD), 2005 WL
1174088, at *3 (N.D.N.Y. May 4, 2005) (“[p]articipation in an inmate grievance process is not a
constitutionally protected right”); Shell v. Brzezniak, 365 F. Supp. 2d 362, 369-70 (W.D.N.Y.
2005) (“[i]nmate grievance programs created by state law are not required by the Constitution and
consequently allegations that prison officials violated those procedures does not give rise to a
cognizable § 1983 claim”); Cancel v. Goord, No. 00-CV-2042 (LMM), 2001 WL 303713, at *3
(S.D.N.Y. Mar. 29, 2001) (“inmate grievance procedures are not required by the Constitution and
therefore a violation of such procedures does not give rise to a claim under § 1983”). Thus, to the
extent that Plaintiff alleges that Kyre attempted to impede or interfere with his grievance, he fails
to state a claim pursuant to Section 1983 and summary judgment is granted in his favor.
Finally, turning to Plaintiff’s claim against Superintendent Unger, the only factual
allegation is that he denied Plaintiff’s appeal regarding his grievance. Plaintiff asserts that Unger’s
“denial of Plaintiff’s grievance despite being aware of the improper conduct and denial of medical
treatment is violative of [Plaintiff’s] right to Equal Protection.” Unger argues he is entitled to
summary judgment because he was not personally involved in the underlying alleged violation.
Indeed, there is no personal liability when a superintendent denies a grievance. See Rogers v.
Artus, No. 13-CV-21 (M), 2013 WL 5175570, at *3 (W.D.N.Y. Sept. 11, 2013) (“The denial, or
affirmance of a denial, of a grievance by a Superintendent or other supervisory official is
insufficient, without more, to create personal involvement in alleged violations.”). Accordingly,
Superintendent Unger is entitled to summary judgment.
For the reasons stated above, Defendants’ Motion for Summary Judgment (ECF No. 52) is
GRANTED, and this case is DISMISSED WITH PREJUDICE.
The Court hereby certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor
person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Requests to proceed on
appeal as a poor person should be directed, on motion, to the United States Court of Appeals for
the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
August 31, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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