    09-2506-pr
    Wesolowski v. Kamas


                              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.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 11th day of February, two thousand eleven.

    PRESENT:
                JOHN M. WALKER, JR.,
                CHESTER J. STRAUB,
                ROBERT A. KATZMANN,
                      Circuit Judges.
    ________________________________________________

    ROBERT WESOLOWSKI,

                   Plaintiff-Appellant,

                   -v.-                                                         09-2506-pr

    CHRISTOPHER F. KAMAS, et al.,

                Defendants-Appellees.
    ________________________________________________

    FOR APPELLANT:                        Robert Wesolowski, pro se, Attica, N.Y.

    FOR APPELLEES:                        Kathleen M. Treasure, Assistant Solicitor General (Barbara
                                          D. Underwood, Solicitor General, Nancy A. Spiegel,
                                          Senior Assistant Solicitor General, of counsel) for Andrew
                                          M. Cuomo, Attorney General of the State of New York,
                                          Albany, N.Y.
       Appeal from the United States District Court for the Western District of New York

(Larimer, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Robert Wesolowski, pro se, appeals from the December 12, 2008,

judgment of the district court granting the defendants’ motion for summary judgment dismissing

the complaint. We assume the parties’ familiarity with the underlying facts, procedural history,

and specification of issues for review.

       We review de novo an order granting summary judgment. See Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine

issues of material fact, this Court is “required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary judgment is sought.” Terry v.

Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted). Summary

judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

       In order to succeed on his Eighth Amendment claims, Wesolowski must show not only

that the defendants denied him “the minimal civilized measure of life’s necessities,” but also that

they acted with a “sufficiently culpable state of mind.” Gaston v. Coughlin, 249 F.3d 156, 164

(2d Cir. 2001) (internal quotation marks omitted). In prison-condition cases, the requisite state

of mind is one of “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)

(internal quotation marks omitted). Deliberate indifference “entails something more than mere


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negligence.” Id. at 835. A prison official acts with deliberate indifference when he “knows of

and disregards an excessive risk to inmate health or safety.” Id. at 837. Officials “may be found

free from liability if they responded reasonably to the risk.” Id. at 844. In the context of

allegations of inadequate medical care under the Eighth Amendment, we have held that “[s]o

long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment

does not give rise to an Eighth Amendment violation.” Chance v. Armstrong, 143 F.3d 698, 703

(2d Cir. 1998).

       Upon our independent review of the record, we conclude that Wesolowski has not

adduced evidence sufficient for a rational trier of fact to find that the defendants acted with

deliberate indifference to the conditions of his cell. The district court therefore did not err in

granting the defendants’ motion for summary judgment dismissing the complaint.

       Moreover, we find that Wesolowski has waived his challenge to the magistrate judge’s

order prohibiting him from conducting oral depositions because he did not timely object to that

order. See Caidor v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008) (holding that “a pro se

litigant who fails to object timely to a magistrate’s order on a non-dispositive matter waives the

right to appellate review of that order, even absent express notice from the magistrate judge that

failure to object within ten days will preclude appellate review”).

       We have considered Wesolowski’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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