Buffaloe v. Fein

Full title: RUSSELL BUFFALOE, Plaintiff, v. DR. FEIN and DR. BERNSTEIN, Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Oct 24, 2013

12 Civ. 9469 (GBD) (AJP) (S.D.N.Y. Oct. 24, 2013)

Opinion

12 Civ. 9469 (GBD) (AJP)

10-24-2013

RUSSELL BUFFALOE, Plaintiff, v. DR. FEIN and DR. BERNSTEIN, Defendants.

ANDREW J. PECK, United States Magistrate Judge

REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :

To the Honorable George B. Daniels, United States District Judge:

Pro se plaintiff Russell Buffaloe brought this action pursuant to 42 U.S.C. § 1983, alleging that his primary care physician at Green Haven Correctional Facility, the late Dr. Fein,¹ and the facility medical director, Dr. Bernstein, were deliberately indifferent to his medical conditions. (Dkt. No. 2: Compl.; Dkt. No. 15: Am. Compl.) The Court previously denied defendants' motion to dismiss, while noting that defendants might prevail on summary judgment. Buffaloe v. Fein, 12 Civ. 9469, 2013 WL 3471060 (S.D.N.Y. July 11, 2013) (Peck, M.J.). Having completed discovery, Dr. Bernstein has now made that summary judgment motion. (Dkt. No. 39: Notice of Motion.) For the reasons set forth below, Dr. Bernstein's summary judgment motion should be GRANTED, the claims against the late Dr. Fein should be dismissed, and the case should be closed.

1 The Court was informed of Dr. Fein's death on July 12, 2013. (Dkt. No. 31: Notice of Death.) Because more than 90 days have passed, the action against Dr. Fein must be dismissed pursuant to Federal Rule of Civil Procedure 25(a). See also, e.g., Nicholas v. Davis, 74 F. App'x 131, 133 n.2 (2d Cir. 2003); Kaczmarek v. City of Schenectady, No. 10-CV-1193, 2013 WL 5506276 at *3 (N.D.N.Y. Oct. 4, 2013); Santino v. Earthbound LLC, 10 Civ. 6724, 2012 WL 1711615 at *1 (S.D.N.Y. May 14, 2012); Lanzetta v. Florio's Enters., Inc., 08 Civ. 6181, 2011 WL 3209521 at *1 n.1 (S.D.N.Y. July 27, 2011) (Chin, D.J.).

FACTS ²

2 Buffaloe did not file any papers opposing Dr. Bernstein's summary judgment motion. S.D.N.Y. Local Civil Rule 56.1(c) provides that "[a]ll material facts set forth in the [Rule 56.1] statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." Accordingly, the facts in Dr. Bernstein's Rule 56.1 statement are deemed admitted. See, e.g., T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009), cert. denied, 130 S. Ct. 3277 (2010); Shortt v. Congregation KTI, 10 Civ. 2237, 2013 WL 142010 at *7 (S.D.N.Y. Jan. 9, 2013); Marin v. JPMorgan Chase Bank , 10 Civ. 2216, 2012 WL 4039844 at *2-3 (S.D.N.Y. Sept. 12, 2012); Arline v. Potter, 404 F. Supp. 2d 521, 527 (S.D.N.Y. 2005); Conte v. Rest. Mgmt. Servs., 00 Civ. 2002, 2001 WL 767073 at *1 n.1 (S.D.N.Y. July 10, 2001) (Peck, M.J.).

Buffaloe was transferred from Fishkill Correctional Facility to Green Haven Correctional Facility on September 10, 2010. (Dkt. No. 42: Bernstein Rule 56.1 Stmt. ¶ 9; Dkt. No. 41: Schulze Aff. Ex. A: Buffaloe Medical Records at 572.) Buffaloe was housed at Green Haven until he was involuntarily committed to Central New York Psychiatric Center ("CNYPC") on or about May 23, 2011. (Bernstein Rule 56.1 Stmt. ¶ 41; Schulze Aff. Ex. C: Bernstein Aff. ¶ 17.)

Prior to entering Green Haven, Buffaloe had been diagnosed with atrial fibrillation, congestive heart failure, a myocardial infarction, a pulmonary embolism, and spinal stenosis. (Bernstein Rule 56.1 Stmt. ¶¶ 5-8; Buffaloe Medical Records at 166, 171, 275.) While housed at other facilities, Buffaloe had been prescribed numerous medications and treatments, including physical therapy, to manage his heart conditions, back pain, and other health issues. (See, e.g., Buffaloe Medical Records at 584, 678, 711-25, 810, 825-26, 860-61, 878, 881, 935, 939.) His medical records indicate that Buffaloe routinely refused medication, physical therapy, and examination throughout his incarceration at Green Haven and elsewhere. (See, e.g., id. at 4-6, 39-47, 501, 504-07, 513-16, 575, 578, 615, 820, 822-24, 939.)

The late Dr. Fein was Buffaloe's treating physician at Green Haven. (Bernstein Rule 56.1 Stmt. ¶ 2.) Dr. Bernstein was the Facility Health Services Director and reviewed Buffaloe's records but never treated or examined him. (Id. ¶¶ 3-4; Bernstein Aff. ¶¶ 2-3.) Specifically: (1) Drs. Fein and Bernstein had a discussion in December 2010 regarding whether to send Buffaloe to an outside cardiologist (Bernstein Rule 56.1 Stmt. ¶ 21; Bernstein Aff. ¶ 5); (2) Dr. Bernstein reviewed Buffaloe's medical records in response to Buffaloe's petitions in January and March 2011 (Bernstein Rule 56.1 Stmt. ¶¶ 23-32; Bernstein Aff. ¶¶ 6-14); (3) medical personnel brought an incident to Dr. Bernstein's attention in April 2011 (Bernstein Rule 56.1 Stmt. ¶ 35; Bernstein Aff. ¶ 15); and (4) Drs. Fein and Bernstein conferred in May 2011 about Buffaloe's nutritional status (Bernstein Aff. ¶ 16; Bernstein Rule 56.1 Stmt. ¶ 39). Dr. Bernstein did not have any other involvement in Buffaloe's medical case. (Bernstein Aff. ¶ 17; Bernstein Rule 56.1 Stmt. ¶ 40.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Connolly v. Calvanese, 515 F. App'x 62, 62 (2d Cir. 2013); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986)). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is generally disputed." Fed. R. Civ. P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.³ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

3 See also, e.g., Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570(1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

"The Court recognizes that it must extend extra consideration to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations & quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").⁴ "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).⁵

4 See also, e.g., Ferran v. Town of Nassau, 471 F.3d 363, 369 (2d Cir. 2006); Fuller v. Armstrong, 204 F. App'x 987, 988 (2d Cir. 2006), cert. denied, 552 U.S. 906, 128 S. Ct. 209 (2007); Gildor v. U.S. Postal Serv., 179 F. App'x 756, 758 (2d Cir. 2006); Porter v. Coughlin, 421 F.3d 141, 144 n.2 (2d Cir. 2005); Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); Johnson v. Buffalo Police Dep't, 46 F. App'x 11, 12 (2d Cir. 2002), cert. denied, 539 U.S. 959, 123 S. Ct. 2645 (2003).

5 See also, e.g., United States v. Acomb, No. 99-6308, 216 F.3d 1073 (table), 2000 WL 899482 at *1 (2d Cir. June 29, 2000); James v. Phillips, 05 Civ. 1539, 2008 WL 1700125 at *3 (S.D.N.Y. Apr. 9, 2008); Thompson v. Tracy, 00 Civ. 8360, 2008 WL 190449 at *5 (S.D.N.Y. Jan. 17, 2008); Bunting v. Nagy, 452 F. Supp. 2d 447, 454 (S.D.N.Y. 2006); Rodriguez v. McClenning, 399 F. Supp. 2d 228, 234 & n.52 (S.D.N.Y. 2005); Pack v. Artuz, 348 F. Supp. 2d 63, 78 (S.D.N.Y. 2004); Rector v. Sylvania, 285 F. Supp. 2d 349, 353 (S.D.N.Y. 2003); Walker v. Vaughan, 216 F. Supp. 2d 290, 296-97 (S.D.N.Y. 2002); Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591, 596 (S.D.N.Y. 2001) (Chin, D.J.), aff'd, 31 F. App'x 740 (2d Cir. 2002).

II. DEFENDANT'S SUMMARY JUDGMENT MOTION SHOULD BE GRANTED

Buffaloe alleges that Dr. Bernstein was deliberately indifferent to his medical needs based on Dr. Bernstein's failure to overrule treating physician Dr. Fein's determinations. Dr. Bernstein argues that summary judgment should be granted because Buffaloe's medical records provided sufficient bases on which to have affirmed the treating physician's decisions. (Dkt. No. 40: Bernstein Br. at 1-2.)

A. Legal Standards

1. Standards Governing § 1983 Eighth Amendment Deliberate Indifference to Serious Medical Needs Claims

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749 (1994).

As this Court stated in ruling on defendants' prior motion to dismiss, in order to prevail, Buffaloe must show that Dr. Bernstein was deliberately indifferent to Buffaloe's serious medical needs. Buffaloe v. Fein, 12 Civ. 9469, 2013 WL 3471060 at *1 (S.D.N.Y. July 11, 2013) (Peck, M.J.) (& cases cited therein).

As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).⁶ "Objectively, the alleged deprivation must be 'sufficiently serious' . . . ." Hathaway v. Coughlin, 99 F.3d at 553; Smith v. Carpenter, 316 F.3d at 183-84 ("The objective 'medical need' element measures the severity of the alleged deprivation . . . .").⁷ "'The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves . . . .'" Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). "[O]nly those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991) (citation omitted); see also, e.g., Dean v. Coughlin, 804 F.2d at 215 ("'[T]he essential test is one of medical necessity and not one simply of desirability.'"). Thus, the constitutional protection is limited to "'a condition of urgency' that may result in 'degeneration' or 'extreme pain.'" Chance v. Armstrong, 143 F.3d at 702;⁸ accord, e.g., Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("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.'").

6 Accord, e.g., Fransua v. Vadlamudi, No. 05-1715, 2008 WL 4810066 at *1 (2d Cir. Nov. 3, 2008); Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006); Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003); Selby v. Coombe, 17 F. App'x 36, 37 (2d Cir. 2001); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

7 See also, e.g., Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Salahuddin v. Goord, 467 F.3d at 279-81; Selby v. Coombe, 17 F. App'x at 37: Chance v. Armstrong, 143 F.3d at 702.

8 The Second Circuit in Chance v. Armstrong identified several factors that are relevant in determining whether a serious medical condition exists, including "'[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" 143 F.3d at 702.

The Second Circuit has stated that determining whether a deprivation is objectively serious entails two inquiries:

Determining whether a deprivation is an objectively serious deprivation entails two inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court has noted, the prison official's duty is only to provide reasonable care. Thus, "prison officials who act reasonably [in response to an inmate-health risk] cannot be found liable . . ." and, conversely, failing "to take reasonable measures" in response to a medical condition can lead to liability.

Second, the objective test asks whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner. For example, if the unreasonable medical care is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious. Factors relevant to the seriousness of a medical condition include whether "a reasonable doctor or patient would find [it] important and worthy of comment," whether the condition "significantly affects an individual's daily activities," and whether it causes "chronic and substantial pain." In cases where the inadequacy is in the medical treatment given, the seriousness inquiry is narrower. For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry "focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Thus, although we sometimes speak of a "serious medical condition" as the basis for [such a] claim, such a condition is only one factor in determining whether a deprivation of adequate medical care is sufficiently grave to establish constitutional liability.

Salahuddin v. Goord, 467 F.3d at 279-80 (citations omitted, emphasis added).

Where the plaintiff alleges delay or interruption in treatment rather than failure to receive treatment, "the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner." Smith v. Carpenter, 316 F.3d at 186. "[I]t's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for [these] purposes." Id. (citing Chance v. Armstrong, 143 F.3d at 702-03). "The absence of adverse medical effects or demonstrable physical injury is one . . . factor that may be used to gauge the severity of the medical need at issue. Indeed, in most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Id. at 187 (citations omitted).

"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553; accord, e.g., Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Salahuddin v. Goord, 467 F.3d at 280-81; Smith v. Carpenter, 316 F.3d at 184 ("[T]he subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind."); Selby v. Coombe, 17 F. App'x at 37; Chance v. Armstrong, 143 F.3d at 702. "The required state of mind, equivalent to criminal recklessness, is that the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quotations omitted, quoting Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994))); see, e.g., Caiozzo v. Koreman, 581 F.3d 63, 71 (2d Cir. 2009) (To establish a violation of his Fourteenth Amendment due process rights, a plaintiff "must prove, inter alia, that the government-employed defendant disregarded a risk of harm to the plaintiff of which the defendant was aware.").⁹

9 See also, e.g., Sinkov v. Americor, Inc., 419 F. App'x 86, 89 (2d Cir. 2011) ("evidence 'that [a defendant] should have been aware that [the detainee] was in immediate danger' was insufficient"); Mayo v. Cnty. of Albany, 357 F. App'x 339, 341 (2d Cir. 2009) ("A plaintiff bringing a deliberate indifference claim must therefore demonstrate that the defendant deliberately disregarded knowledge of the harm he knew he could cause as a result of his actions."); Ross v. Westchester Cnty. Jail, 10 Civ. 3937, 2012 WL 86467 at *5 (S.D.N.Y. Jan. 11, 2012) ("Deliberate indifference is a mental state akin to 'recklessness,' and is measured using a 'subjective test' that discerns whether the defendant was 'actually aware of an excessive risk to an inmate's health or safety,' and therefore 'act[ed] with a sufficiently culpable state of mind.'" (citation omitted)); Mercado v. Citv of N.Y., 08 Civ. 2855, 2011 WL 6057839 at *4 (S.D.N.Y. Dec. 5, 2011).

Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison [officials or] guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291 (1976) (fn. omitted). However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Id. at 105-06, 97 S. Ct. at 292; accord, e.g., Burton v. N.Y.S. Dep't of Corr. , 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. Mar. 21, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . ." Estelle v. Gamble, 429 U.S. at 106, 97 S. Ct. at 292.¹⁰ As the Supreme Court has stated, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id.; accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("Because 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."); Hathaway v. Coughlin, 99 F.3d at 553; Burton v. N.Y.S. Dep't of Corr., 1994 WL 97164 at *2.

10 Accord, e.g., Salahuddin v. Goord, 467 F.3d at 280; Hathaway v. Coughlin, 99 F.3d at 553; Felipe v. N.Y.S. Dep't of Corr. Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. Apr. 10, 1998) (Pooler, D.J.).

2. Standards Governing Personal Involvement In A § 1983 Cause Of Action

"It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 1948 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Murphy v. Cnty. of Chemung (In re Murphy), 482 F. App'x 624, 627 (2d Cir. 2012); Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010); Warheit v. City of N.Y., 271 F. App'x 123, 126 (2d Cir. 2008); Dyno v. Vill. of Johnson City, 240 F. App'x 432, 434 (2d Cir. 2007), cert. denied, 552 U.S. 1310, 128 S. Ct. 1874 (2008).¹¹

11 See, e.g., Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006); Gill v. Tuttle, 93 F. App'x 301, 302 (2d Cir. 2004); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), cert. denied, 543 U.S. 1093, 125 S. Ct. 971 (2005): Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Russo v. DiMilia, 894 F. Supp. 2d 391, 414 (S.D.N.Y. 2012); Robles v. Khahaifa, No. 09CV718, 2012 WL 2401574 at *8 (W.D.N.Y. June 25, 2012); Allan v. Woods, No. 05-CV-1280, 2008 WL 724240 at *5 (N.D.N.Y. Mar. 17, 2008) ("Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability."); Tafari v. Annets, 06 Civ. 11360, 2008 WL 2413995 at *10 (S.D.N.Y. June 12, 2008) (Peck, M.J.), report & rec. adopted, 2008 WL 4449372 (S.D.N.Y. Oct. 2, 2008) (Daniels, D.J.), aff'd, 363 F. App'x 80 (2d Cir.), cert. denied, 130 S. Ct. 3475 (2010); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. & Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").

In 1995, the Second Circuit held that:

[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d at 873.¹² However, in 2009, the Supreme Court held that:

In a § 1983 suit . . . —where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title not withstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose . . . liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

Ashcroft v. Iqbal, 556 U.S. at 677, 129 S. Ct. at 1949. Although the Second Circuit has not weighed in on what remains of Colon after Iqbal, see, e.g., Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012) ("Iqbal has, of course, engendered conflict within our Circuit about the continuing vitality of the supervisory liability test set forth in Colon v. Coughlin . . . ."), several decisions in this district have concluded that by specifically rejecting the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution," id., Iqbal effectively nullified several of the classifications of supervisory liability enunciated by the Second Circuit in Colon. See, e.g., Bellamy v. Mount Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939 at *6 (S.D.N.Y. June 26, 2009) ("Only the first and part of the third Colon categories pass Iqbal's muster—a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminated—situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate."), aff'd, 387 F. App'x 55 (2d Cir. 2010).¹³ While Colon permitted supervisory liability in situations where the supervisor knew of and acquiesced in a constitutional violation committed by a subordinate, these post-Iqbal district court decisions reason that Iqbal's "active conduct" standard imposes liability only where that supervisor directly participated in the alleged violation or had a hand in creating a policy or custom under which the unconstitutional practices occurred.

12 Accord, e.g., Ziemba v. Clark, 167 F. App'x 831, 833 (2d Cir. 2006); Samuels v. Selsky, 166 F. App'x 552, 556 (2d Cir. 2006); Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d at 127; Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003); Hernandez v. Keane, 341 F.3d at 145; Wright v. Smith, 21 F.3d at 501: see also, e.g., Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).

13 See, e.g., Eldridge v. Williams, 10 Civ. 0423, 2013 WL 4005499 at *4 n.5 (S.D.N.Y. July 30, 2013) (Iqbal "may have narrowed the viability of some of the Colon predicates for supervisory liability"); Liner v. Fischer, 11 Civ. 6711, 2013 WL 3168660 at *7 (S.D.N.Y. June 24, 2013) ("[C]ourts in this Circuit are divided as to how many of the Colon factors survive in the wake of Iqbal." (comparing cases)), report & rec. adopted, 2013 WL 4405539 (S.D.N.Y. Aug. 7, 2013); Hobbs v. Police Officers of City of N.Y., 10 Civ. 5717, 2013 WL 2985899 at *8 & n.5 (S.D.N.Y. June 17, 2013); Curtis v. Williams, 11 Civ. 1186, 2013 WL 1915447 at *5 (S.D.N.Y. May 9, 2013); Doe v. New York, No. 10 CV 1792, 2012 WL 4503409 at *8 & n.3 (E.D.N.Y. Sept. 28, 2012); Vann v. Fischer, 11 Civ. 1958, 2012 WL 2384428 at *5 & n.9 (S.D.N.Y. June 21, 2012) ("In the Second Circuit, personal involvement in intentional discrimination is shown where 'the defendant participated directly in the alleged constitutional violation, [or] . . . the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom . . . .'" "These are only the first and third scenarios listed in Colon in which personal involvement might be found, but the others have been invalidated by the Supreme Court's holding in Iqbal . . . ."); James v. Orange Cnty. Corr. Facility, 09 Civ. 7226, 2011 WL 5834855 at *4 (S.D.N.Y. Nov. 18, 2011) ("There has been considerable division among the district courts of the Second Circuit as to whether Iqbal abrogates several factors of the Colon test and if so to what extent." (citing cases)); Joseph v. Fischer, 08 Civ. 2824, 2009 WL 3321011 at *14 (S.D.N.Y. Oct. 8, 2009) ("[U]nder Iqbal, . . . [a] defendant is not liable under section 1983 if the defendant's failure to act deprived the plaintiff of his or her constitutional right."); Newton v. City of N.Y., 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) ("[P]assive failure to train claims pursuant to section 1983 have not survived the Supreme Court's recent decision in Ashcroft v. Iqbal.").

These decisions may overstate Iqbal's impact on supervisory liability. Iqbal involved allegations of intentional discrimination. Ashcroft v. Iqbal, 556 U.S. at 666, 129 S. Ct. at 1942. Where the alleged constitutional violation involved "invidious discrimination in contravention of the First and Fifth Amendments," Iqbal held that "plaintiff must plead and prove that the defendant acted with discriminatory purpose," whether the defendant is a subordinate or a supervisor. Id. at 676-77, 129 S. Ct. at 1948-49. It was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Id. at 677, 129 S. Ct. at 1949. Where the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth, Eighth or Fourteenth Amendments, the personal involvement analysis set forth in Colon may still apply.¹⁴

14 See, e.g., Hernandez v. Goord, 01 Civ. 9585, 2013 WL 2355448 at *7 (S.D.N.Y. May 29, 2013) ("And even after the U.S. Supreme Court's decision in Iqbal, these 'categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated.'"); Zappulla v. Fischer, 11 Civ. 6733, 2013 WL 1387033 at *9 (S.D.N.Y. Apr. 5, 2013) (holding that "where a plaintiff has alleged a claim that does not include a discriminatory intent element, such as a claim under the Eighth Amendment for denial of medical treatment, the Colon test should still apply" and collecting cases "holding that Colon continues to apply at least where the alleged constitutional claim does not involve a discriminatory intent element"); Inesti v. Hogan, 11 Civ. 2596, 2013 WL 791540 at *12 (S.D.N.Y. Mar. 5, 2013) (Peck, M.J.), report & rec. adopted, 2013 WL 5677046 (S.D.N.Y. Sept. 30, 2013); Smolen v. Fischer, 12 Civ. 1856, 2012 WL 5928282 at *5 (S.D.N.Y. Nov. 27, 2012) (Peck, M.J.), report & rec. adopted, 2013 WL 765315 (S.D.N.Y. Feb. 28, 2013); Alli v. City of N.Y., 11 Civ. 7665, 2012 WL 4887745 at *6 (S.D.N.Y. Oct. 12, 2012) ("[W]here the claim does not require a showing of discriminatory intent, the personal-involvement analysis set forth in Colon should still apply."); Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *11 (S.D.N.Y. June 22, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012); Hodge v. Sidorowicz, 10 Civ. 428, 2011 WL 6778524 at *16 (S.D.N.Y. Dec. 20, 2011), report & rec. adopted, 2012 WL 701150 (S.D.N.Y. Mar. 6, 2012); Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009) (Peck, M.J.); see also, e.g., Chao v. Ballista, 630 F. Supp. 2d 170, 178 n.2 (D. Mass. July 1, 2009) (noting that the "state of mind required to make out a supervisory claim under the Eighth Amendment—i.e., deliberate indifference—requires less than the discriminatory purpose or intent that Iqbal was required to allege in his suit . . . ."); Michael Avery et al., Police Misconduct: Law & Litigation § 4:5 (2009) (discussing the impact of Iqbal on supervisor liability in § 1983 and Bivens actions); cf. Caiozzo v. Koreman, 581 F.3d 63, 66 (2d Cir. 2009) (the standard is the same for Eighth Amendment and Fourteenth Amendment deliberate indifference claims).

B. Application of the Legal Standards to Buffaloe's Deliberate Indifference Claims

Buffaloe's claims primarily relate to the denial of his requests to be treated by a cardiologist and a spine specialist, and his request for a prescription for Ensure. (Dkt. No. 15: Am. Compl. at 4.) Dr. Bernstein, however, never personally treated Buffaloe. (See page 3 above.) As liability under § 1983 cannot be based on vicarious liability (see Point II. A.2 above), the Court looks only at Dr. Bernstein's personal involvement. The record indicates that Dr. Bernstein's personal involvement was limited to reviewing and approving certain specific treatment decisions of Dr. Fein. (See page 3 above.) See, e.g., Verley v. Wright, 02 Civ. 1182, 2007 WL 2822199 at *12 (S.D.N.Y. Sept. 27, 2007) (No culpable state of mind where the supervisor had denied the plaintiff's request to see a specialist despite the treating physician's initial approval. "There is substantial evidence in the record that [supervisory doctor] reviewed plaintiff's file and made an independent medical determination that it was unnecessary for [plaintiff] to visit a specialist in light of the care that he was already receiving.").

1. Denial of Requests to see a Cardiologist Was Reasonable

Buffaloe's cardiac conditions constituted a serious medical need. See, e.g., Buffaloe v. Fein, 12 Civ. 9469, 2013 WL 3471060 at *1 (S.D.N.Y. July 11, 2013) (Peck, M.J.) ("At the pleading stage, Buffaloe sufficiently alleges that denying him access to a cardiologist was an objectively serious medical deprivation."); Smith v. Fischer, 08 Civ. 07090, 2011 WL 3278903 at *1, *7 (S.D.N.Y. July 27, 2011) (Daniels, D.J.), aff'd in part, vacated in part on other grounds, 500 F. App'x 59 (2d Cir. 2012); Lewis v. Cunningham, 05 Civ. 9243, 2011 WL 1219287 at *8 (S.D.N.Y. Mar. 14, 2011), report & rec. adopted, 2011 WL 1218061 (Daniels, D.J.), aff'd, 483 F. App'x 617 (2d Cir. 2012); Bruno v. Wright, No. 06-CV-0808, 2008 WL 5100278 at *6 (N.D.N.Y. Nov. 26, 2008) ("Diagnosed heart conditions or disease have been recognized as a serious medical condition."): Bennett v. Hunter, No. 02-CV-1365, 2006 WL 1174309 at *3 & n.23 (N.D.N.Y. May 1, 2006) ("generally a heart condition" is a serious medical need).

As a preliminary matter, Buffaloe's records indicate that he was seen by medical professionals as often as seven times per month and, on average, four times per month during his nine months at Green Haven. (E.g. Dkt. No. 41: Schulze Aff. Ex. A: Buffaloe Medical Records at 444-52, 500-07, 575-82.) The high frequency of care could reasonably have assured Dr. Bernstein that there was no denial or delay of care. See, e.g., Morrison v. Mamis, 08 Civ. 4302, 2008 WL 5451639 at *8 (S.D.N.Y. Dec. 18, 2008) (Peck, M.J.), report & rec. adopted, 2009 WL 2168845 (S.D.N.Y. July 20, 2009); Abney v. McGinnis, 01 Civ. 8444, 2007 WL 844675 at *3 (S.D.N.Y. Mar. 16, 2007) (no deliberate indifference where the orthotics specialist met with plaintiff thirteen times within an almost two year period); Rivera v. Goord, 253 F. Supp. 2d 735, 755 (S.D.N.Y. 2003) (no deliberate indifference where plaintiff "was frequently examined and treated for various conditions by a total of 21 different doctors," received pain medication on a regular basis and plaintiff "acknowledges that Green Haven medical staff listened to his complaints, provided him with medical care, and routinely tested him for various ailments"); Davidson v. Scully, 155 F. Supp. 2d 77, 84 (S.D.N.Y. 2001) (no deliberate indifference to plaintiff's foot problems where "plaintiff was examined and treated . . . on numerous occasions by DOCS medical personnel as well as by outside orthopedic doctors to whom plaintiff was referred by DOCS"); Williams v. M.C.C. Inst., 97 Civ. 5352, 1999 WL 179604 at *9 (S.D.N.Y. Mar. 31, 1999), aff'd, 101 F. App'x 862 (2d Cir. 2004); Keyes v. Strack, 95 Civ. 2367, 1997 WL 187368 at *4 (S.D.N.Y. Apr. 16, 1997) ("The record shows that defendants were not deliberately indifferent to [plaintiff's] medical needs. The Fishkill medical staff made continual efforts to treat and care for plaintiff," with thirty visits to the facility's clinic over an eleven month period.); Alston v. Howard, 925 F. Supp. 1034, 1040 (S.D.N.Y. 1996) (no deliberate indifference where plaintiff "was afforded consistent, attentive surgical and therapeutic medical care on about a weekly basis"); Johnson v. Dep't of Corr. , 92 Civ. 7716, 1995 WL 121295 at *3 (S.D.N.Y. Mar. 21, 1995) (no deliberate indifference where "[d]uring the nine month period that plaintiff was in DOC custody he was examined and treated on numerous occasions for his hip condition and a myriad of other ailments").

Buffaloe's medical records further demonstrate both that doctors were monitoring Buffaloe's condition and that Buffaloe often refused treatment. For example, in October 2010, Buffaloe underwent an EKG which revealed no change since his EKG the year before. (Buffaloe Medical Records at 580.) On four occasions in December 2010, Buffaloe refused his medications. (Id. at 506-09, 514-15.) On or about December 30, 2010, Buffaloe's treating physician Dr. Fein conferred with Dr. Bernstein and the two agreed to send Buffaloe to a cardiologist "if necessary." (Id. at 575.)¹⁵ In March 2011, Buffaloe refused one of his heart medications, Lisinopril, eight out of thirty-one days. (Id. at 684.) Notably, when medical personnel consulted Dr. Bernstein about Buffaloe's chest pain and head injury on April 29, 2011, (id. at 448), Dr. Bernstein arranged for Buffaloe to be sent to Putnam Hospital Center Emergency Department immediately for evaluation. (Id. at 630-49.) That outside cardiologist found "[n]o accute disease in the chest." (Id. at 635.)

15 There also was evidence in the record to suggest that Buffaloe might have refused to see an outside cardiologist even if his request had been granted. On February 10, 2010, Buffaloe's medical records state that he would "refuse any outside (cardiac) trips" (id. at 745), and on February 24, 2010, Buffaloe refused treatment by a cardiology consultant (id. at 744). Although these events occurred before Buffaloe's transfer to Green Haven, they were documented in the records that Dr. Bernstein reviewed in approving the treating physician's decisions.

2. Denial of Requests for a Spine Specialist Was Reasonable

Buffaloe's medical records also demonstrate no deprivation with respect to his spinal injuries. Severe back pain can, in some circumstances, qualify as a serious medical need. See, e.g., Morrison v. Mamis, 08 Civ. 4302, 2008 WL 5451639 at *8 (S.D.N.Y. Dec. 18, 2008) (Peck, M.J.) (& cases cited therein), report & rec. adopted, 2009 WL 2168845 (S.D.N.Y. July 20, 2009); Faraday v. Lantz, No. 03-CV-1520, 2005 WL 3465846 at *5 (D. Conn. Dec. 12, 2005) (persistent complaints of "lower back pain caused by herniated, migrated discs [and] sciatica" leading to severe pain constitute a serious medical need). Assuming arguendo that Buffaloe's back pain rose to the level of a serious medical need, he still fails to establish that Dr. Bernstein was indifferent to his condition.

Before coming to Green Haven, Buffaloe had been prescribed physical therapy for his back. (Dkt. No. 41: Schulze Aff. Ex. A: Buffaloe Medical Records at 825-26, 860-61.) During 2009, Buffaloe failed to appear for physical therapy on February 20 and 26, March 10, 12, and 19, and April 29. (Id. at 820, 822-24, 827.) When Buffaloe requested a spinal specialist once at Green Haven, treating physician Dr. Fein cited the previously-refused physical therapy sessions in denying the request. (Id. at 575.) The medical records also indicated ongoing medication for Buffaloe's back pain, as well as recurring refusals to take his medication. (E.g., id. at 506-07, 514-15.) Given Buffaloe's ongoing medication treatment and his history of refusing physical therapy and medication, Dr. Bernstein's confirmation of the treating physician's decisions denying the need for a spinal specialist did not constitute deliberate indifference. See, e.g., O'Diah v. Mawhir, No. 08-CV-322, 2012 WL 4482579 at *9-10 (N.D.N.Y. Sept. 5, 2012), report & rec. adopted, 2012 WL 4471183 (N.D.N.Y. Sept. 26, 2012); Rodriguez v. Peguero, No. 09-CV-1005, 2011 WL 754123 at *8 (N.D.N.Y. Jan. 27, 2011) (citing Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986)), report & rec. adopted, 2011 WL 744799 (N.D.N.Y. Feb. 24, 2011); Anderson v. Kooi, No. 07-CV-1257, 2011 WL 1315721 at *12 (N.D.N.Y. Jan. 24, 2011) ("Plaintiff's refusal of the prescribed treatment negates his claim of deliberate indifference."), report & rec. adopted, 2011 WL 1256942 (N.D.N.Y. Apr. 1, 2011); Gillard v. Rovelli, No. 09-CV-0860, 2010 WL 4905240 at *10-11 (N.D.N.Y. Sept. 29, 2010) (recommending dismissal of deliberate indifference claim against defendant whose treatment plaintiff refused), report & rec. adopted, 2010 WL 4945770 (N.D.N.Y. Nov. 24, 2010); McFadden v. Roy, No. 03-CV-0931, 04-CV-0799, 2009 WL 799968 at *16-17 (N.D.N.Y. Mar. 25, 2009); Rivera v. Goord, 253 F. Supp. 2d 735, 756 (S.D.N.Y. 2003) ("Evidence that a plaintiff has refused medical care has been found to 'effectively rebut[ ] . . . claim[s] of deliberate indifference to serious medical needs.'").

3. Denial of Requests for Ensure Was Reasonable

Buffaloe's claims regarding his limited weight loss fail, as a matter of law, to rise to the level of a serious medical condition. See, e.g., Evans v. Albany Cnty. Corr. Facility, No. 05-CV-1400, 2009 WL 1401645 at *10 (N.D.N.Y. May 14, 2009) (loss of thirty pounds over a four-month period insufficient to implicate an Eighth Amendment violation); Bost v. Bockelmann, No. 04-CV-0246, 2007 WL 527320 at *8 (N.D.N.Y. Feb. 20, 2007) (inmate's self-diagnosis of a fast metabolism and fifteen pound wight loss insufficient as a matter of law to constitute serious medical need); Hutchinson v. N.Y.S. Corr. Officers, 02 Civ. 2407, 2003 WL 22056997 at *5 (S.D.N.Y. Sept. 4, 2003) ("the court has not been convinced that digestion problems, weight loss, and dizziness" constitute a serious medical condition); cf. Watson v. Wright, No. 08-CV-0960, 2013 WL 1791079 at *6 (W.D.N.Y. Mar. 26, 2013) (plaintiff's loss of thirty-one pounds in three months, combined with Hepatitis C, could constitute a sufficiently serious condition), report & rec. adopted, 2013 WL 1791079 (W.D.N.Y. Apr. 26, 2013); Bourgoin v. Weir, No. 10CV391, 2011 WL 4435695 at *7 (D. Conn. Sept. 23, 2011) (loss of forty pounds over eleven months could constitute an objectively serious medical condition); Anderson v. Kooi, No. 07-CV-1257, 2011 WL 1315721 at *12 (N.D.N.Y. Jan. 24, 2011) ("[w]hile serious weight loss alone may not constitute a serious medical condition, rapid weight loss or weight loss coupled with other conditions may present a serious medical condition"; plaintiff alleged loss of one-fifth of body weight), report & rec. adopted, 2011 WL 1256942 (N.D.N.Y. Apr. 1, 2011). Although Buffaloe alleges his weight dropped from 215 pounds to 170 pounds, (Dkt. No. 15: Am. Compl. 4), his medical records indicate his weight remained within a twenty-pound range (166 pounds to 185 pounds) during his nine months at Green Haven. (Dkt. No. 41: Schulze Aff. Ex. A: Buffaloe Medical Records at 445, 452, 574, 579, 581-82, 587-88). Even if Buffaloe's weight was a serious condition, however, the medical records indicate that medical personnel at Green Haven monitored Buffaloe's weight. For example, on March 16, 2011, Buffaloe's records indicate that his Body Mass Index ("BMI") was acceptable for his height. (Dkt. No. 41: Schulze Aff. Ex. A: Buffaloe Medical Records at 452.) On May 6, 2011, his records noted weight loss but that Buffaloe remained within an appropriate BMI. (Id. at 445.) This was corroborated by outside practicioners. The Putnam Hospital Center Emergency Department found that Buffaloe was "well-nourished" as of April 2011. (Id. at 645.) Upon his transfer from Green Haven to CNYPC, the dietician stated that Buffaloe "appear[ed] thin" and recommended extra food but noted he was "within the acceptable BMI range." (Schulze Aff. Ex. B: Buffaloe Medical & Mental Health Records, 5/24/11.) See, e.g., Polanco v. Dworzack, 181 F.3d 83 (table), 1999 WL 357856 at *2 (2d Cir. May 28, 1999) (no deliberate indifference by denying Ensure where medical staff observed his weight was stable and plaintiff gained weight at one point); Wood v. Cnty. of Sullivan, 00 Civ. 4339, 2002 WL 31158822 at *8 (S.D.N.Y. Sept. 27, 2002) (no serious medical need where plaintiff's BMI remained within normal range).

Moreover, to the extent that Buffaloe's weight was dropping, the record is devoid of evidence showing the weight loss was caused by deprivation of care. Rather, Buffaloe routinely refused his meals. In fact, Buffaloe was offered Ensure on December 15, 2010, but refused it. (Buffaloe Medical Records at 507.) Although the previous treating physician had briefly prescribed one Ensure per day (id. at 704-09), Dr. Bernstein's approval of Dr. Fein's denial of Ensure did not constitute deliberate indifference to Buffaloe's serious medical needs.

* * * *

Since Dr. Bernstein's conduct was reasonable, he cannot be found liable, see Farmer v. Brennan, 511 U.S. 825, 845, 114 S. Ct. 1970, 1983 (1994); Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006), even if Buffaloe was disappointed by his failure to overrule Dr. Fein and order additional treatment. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So 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."); Byng v. Wright, 09 Civ. 9924, 2012 WL 967430 at *9 (S.D.N.Y. Mar. 20, 2012); Scott v. Laux, No. 07-CV-936, 2008 WL 4371778 at *4 (N.D.N.Y. Sept. 18, 2008) ("'[D]isagreements over medications, diagnostic techniques . . . or the need for specialists . . . are not adequate grounds for a § 1983 claim.'"); Brown v. Selwin, 250 F. Supp. 2d 299, 308 (S.D.N.Y. 1999), aff'd, 29 F. App'x 762 (2d Cir. 2002); see also cases cited at pages 7-8 above. The Court also notes that Buffaloe's treatment at Green Haven was complicated by his mental health issues. (See Dkt. No. 42: Bernstein Rule 56.1 Stmt. ¶¶ 10, 18, 22, 28-29, 33-34, 41, 43.)

Because none of Buffaloe's claims satisfy the objective prong for deliberate indifference, there is no need to discuss whether Buffaloe's claims fulfill the subjective requirement. See, e.g., Goris v. Breslin, 402 F. App'x 582, 584 (2d Cir. 2010) (court need not reach subjective prong where plaintiff failed to satisfy the objective prong); Inesti v. Hogan, 11 Civ. 2596, 2013 WL 791540 at *19 (S.D.N.Y. Mar. 5, 2013) (Peck, M.J.), report & rec. adopted, 2013 WL 5677046 (S.D.N.Y. Sept. 30, 2013). If the Court were to reach the subjective prong, based on Dr. Bernstein's testimony (Bernstein Aff. ¶¶ 6-16), the medical records, the fact that Dr. Bernstein merely was reviewing the medical decisions of Buffaloe's treating physician, and the fact that outside treatment was approved when necessary (see pages 2-3 above), the Court would find that Dr. Bernstein did not act with a culpable state of mind. See, e.g., Alston v. Bendheim, 672 F. Supp. 2d 378, 387-88 (S.D.N.Y. 2009) (no deliberate indifference where defendant reviewed medical records, discussed treatment with primary physician, and referred plaintiff to an outside specialist). Thus, Buffaloe has not satisfied the objective or subjective prongs of the deliberate indifference test.

CONCLUSION

For the reasons set forth above, Dr. Bernstein's motion for summary judgment (Dkt. No. 39) should be GRANTED. In addition, the claims against deceased Dr. Fein must be dismissed. (See page1n.1 above.)

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6.¹⁶ Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Ingram v. Herrick, 475 F. App'x 793, 793 (2d Cir. 2012); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993). cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

16 If Buffaloe requires copies of any of the cases reported only in Westlaw, he should request copies from defense counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); SDNY-EDNY Local Civil Rule 7.2.

October 24, 2013

Respectfully submitted,

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies to: Russell Buffaloe (Mail)

Daniel Schulze, Esq. (ECF)

Judge George B. Daniels