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

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of May, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JOHN L. LEWIS, and all others
14       similarly situated,
15                Plaintiff-Appellant,
16
17       JIMMY D. SMITH, and all others
18       similarly situated,
19                Plaintiff,
20
21                    -v.-                                               11-1788-pr
22
23       RAYMOND CUNNINGHAM, Superintendent,
24       Woodbourne Correctional Facility,
25       STEVEN P. LOWRY, PETER CHIAVARO, Deputy
26       Superintendant of Administrative
27       Services, Woodbourne Correctional
28       Facility, LESTER WRIGHT,
29                Defendants-Appellees,

                                                  1
 1   and
 2
 3   FRANK LANCELLOTTI, M.D., Clinical
 4   Physician, Woodbourne Correctional
 5   Facility, MERVAT R. MAKRAM, Clinical
 6   Physician, Woodbourne Correctional
 7   Facility, DENISE F. BOYD, Nurse
 8   Administrator, Woodbourne
 9   Correctional Facility, GLENN GOORD,
10   Comissioner, GEORGE E. PATAKI,
11            Defendants.
12   - - - - - - - - - - - - - - - - - - - -
13
14   FOR APPELLANT:             ALEX SMITH (Robert N. Isseks,
15                              Peter A. Sell, Middletown, NY,
16                              on the brief), New York, NY.
17
18   FOR APPELLEES:             DAVID LAWRENCE III, Assistant
19                              Solicitor General (Barbara D.
20                              Underwood, Solicitor General,
21                              Michael S. Belohlavek, Senior
22                              Counsel), for Eric T.
23                              Schneiderman, Attorney General
24                              of the State of New York, New
25                              York, NY.
26
27        Appeal from a judgment of the United States District
28   Court for the Southern District of New York (Daniels, J.).
29
30        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
31   AND DECREED that the judgment of the district court be
32   AFFIRMED.
33
34        Plaintiff John L. Lewis appeals from a judgment of the
35   United States District Court for the Southern District of
36   New York (Daniels, J.), granting defendants’ motion for
37   summary judgment and dismissing his claims brought under 42
38   U.S.C. § 1983. We assume the parties’ familiarity with the
39   underlying facts, the procedural history, and the issues
40   presented for review.
41
42        Lewis’s third amended complaint alleges that
43   defendants--officials at Woodbourne Correctional Facility,
44   and a New York Department of Corrections administrator--were
45   deliberately indifferent to his medical needs related to his
46   cardiovascular condition. The district court adopted the

                                  2
 1   magistrate judge’s report and recommendation granting
 2   summary judgment in favor of defendants Lowry, Chiavaro, and
 3   Wright because, inter alia, there was no evidence that they
 4   were personally involved in the alleged constitutional
 5   deprivations, and granting summary judgment in favor of
 6   defendant Cunningham because, inter alia, there was no
 7   evidence that he had acted with the requisite state of mind
 8   to be deliberately indifferent to Lewis’s serious medical
 9   needs. We affirm.
10
11        A prison official cannot be personally liable
12   under § 1983 on the basis of respondeat superior or simply
13   because he is atop the prison hierarchy. See Colon v.
14   Coughlin, 58 F.3d 865, 874 (2d Cir. 1995). Rather, a prison
15   official must have some degree of personal involvement in an
16   alleged constitutional deprivation to be personally liable.
17   Id. After conducting a de novo review of the record, we
18   agree that plaintiff has not put forth sufficient evidence
19   of personal involvement by defendants Lowry, Chiavaro, and
20   Wright. Lewis made one unspecified complaint to Lowry
21   (right before Lowry retired), but a vague complaint is
22   insufficient to permit a jury to find that a prison
23   official’s failure to act in response was deliberate
24   indifference. See Colon, 58 F.3d at 873. Although Lewis
25   complained to Chiavaro three times in person, Lewis concedes
26   that he never wrote to Chiavaro because the complaints “were
27   mainly security issues and medical issues” and, according to
28   Lewis, Chiavaro “really didn’t have authority to override
29   medical or security.” Appellant’s App. 148. Each time,
30   Chiavaro advised him to consult his primary care physician
31   or visit sick call.
32
33        Lewis argues that Wright, chief medical officer in the
34   New York Department of Corrections, had personal involvement
35   because he failed to establish a specific policy for caring
36   for cardiac patients. Instead, prison officials handled
37   each prisoner’s medical needs on an individual basis. In
38   certain circumstances, a prison official can be personally
39   liable for a § 1983 claim by creating or maintaining a
40   custom or policy “under which unconstitutional practices
41   occurred.” See Brock v. Wright, 315 F.3d 158, 165 (2d Cir.
42   2003) (internal quotation marks omitted). Here, unlike
43   Brock, there was no custom or policy in place that caused
44   the deprivations that Lewis complains of; rather, he is
45   simply unhappy with the way in which Woodbourne staff
46   accommodated his medical conditions on an ad hoc basis.


                                  3
 1   Accordingly, summary judgment was properly granted in
 2   Wright’s favor.
 3
 4   [2] As to Cunningham, we agree with the district court that
 5   Lewis failed to proffer evidence that he acted with
 6   deliberate indifference. “An official acts with the
 7   requisite deliberate indifference when that official ‘knows
 8   of and disregards an excessive risk to inmate health or
 9   safety; the official must both be aware of facts from which
10   the inference could be drawn that a substantial risk of
11   serious harm exists, and he must also draw the inference.’”
12   Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)
13   (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In
14   this case, there is simply no evidence that Cunningham, in
15   delegating and responding to Lewis’s complaints, acted with
16   “a state of mind that is the equivalent of criminal
17   recklessness.” Hernandez v. Keane, 341 F.3d 137, 144 (2d
18   Cir. 2003) (internal quotation marks omitted).
19
20        Finding no merit in Lewis’s remaining arguments, we
21   hereby AFFIRM the judgment of the district court.
22
23
24                              FOR THE COURT:
25                              CATHERINE O’HAGAN WOLFE, CLERK
26




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