MEMORANDUM and ORDER

John T. Elfvin, Senior United States District Judge.

Plaintiff brings this action alleging claims under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights based upon a deliberate indifference to his serious medical needs against David M. Unger — the Deputy Superintendent of Administration of the Wyoming Correctional Facility ("Wyoming") — and Richard Apps — the Administrative Nurse of Wyoming for injuries suffered while he was in their care as an inmate at Wyoming. Specifically plaintiff claims that while he was incarcerated he was denied adequate medical treatment for his Systemis Lupus Erythematosus ("Lupus") complicated by Vasculitis and as a result three of his toes had to be amputated.

Defendants have moved for summary judgment on plaintiff's Eighth Amendment claim on the ground that plaintiff cannot establish a deliberate indifference to his serious medical needs and, even if he could, neither defendant had any personal involvement in any decision made with regard to his medical care. For the reasons that follow, defendants' motion for summary judgment will be granted. Plaintiff visited Wyoming's Health Services Unit ("HSU") June 15, 1995 complaining of numbness and occasional tingling in his feet and requested an appointment with a podiatrist. Def.s' Statement of Undisputed Facts ("Defs.' Statement") at ¶ 8. He was seen by an HSU nurse who referred him to a facility medical doctor for further evaluation. Ibid. Between this visit and September 7, 1995, plaintiff was seen at least twelve times by HSU and had several prescriptions refilled, had blood work done and had been attended by HSU nurses and a physician. Id. at ¶¶ 9-23.

On September 7, 1995 plaintiff was seen by Dr. Margaret Paroski, a neurologist at the Erie County Medical Center ("ECMC"). Def.s' Statement at ¶ 24. Dr. Paroski noted that the pain and numbness in plaintiff's feet were consistent with peripheral neuropathy, the cause of which was unknown. Ibid. She ordered numerous laboratory tests and suggested that plaintiff be put on a non-steroidal anti-inflammatory drug other than Naprosyn. Ibid. Between the September 7, 1995 visit and January 30, 1996 — the day plaintiff had his toes amputated —, plaintiff was seen by the HSU medical staff at least sixteen times, with at least five visits with physicians, one more visit with Dr. Paroski, eleven days in the infirmary, eleven days of inpatient care at ECMC and a visit to a rheumatology clinic at ECMC. Id. at ¶¶ 24-58.

On November 24, 1995 plaintiff was discharged from ECMC and diagnosed with Lupus, Vasculitis, Hypertension and Anemia. Id. at ¶ 46. After his diagnosis, plaintiff was seen several times by the rheumatology and surgery clinic at ECMC and Prednisone was prescribed. Defs.' Statement at ¶¶ 46-58.

On January 23, 1996 amputation of three of plaintiff's toes was suggested because of the rapid progression of plaintiff's Lupus and, on January 30, 1996, the amputation procedure was done.

Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adickes v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e).

In order to succeed on a 42 U.S.C. § 1983 claim grounded upon the Eighth Amendment, plaintiff "must, at a minimum, allege deliberate indifference to his serious medical needs." Wilson v. Seiter, 501 U.S. 294, 297 (1991). Plaintiff first must prove that the alleged deprivation, viewed objectively, is sufficiently serious. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1995). To be such, the ailment must be one that may produce death, degeneration or extreme pain.

The plaintiff must next prove that the prison official acted with a sufficiently culpable state of mind. Ibid. This requires that the prison official "both 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." Ibid., citing Farmer v. Brennan, 511 U.S. 825, 837 (1994). An "inadvertent failure to provide adequate medical care," while it may offer a plaintiff recourse under state medical malpractice laws, cannot form the basis for an Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97, 105-106 (1976).

Defendants do not dispute that the amputation of three of plaintiff's toes is an objectively serious injury and this Court opines that such element of plaintiff's claim is satisfied. Therefore the inquiry shifts to whether plaintiff has offered sufficient evidence to show a genuine issue as to whether defendants were deliberately indifferent to his serious medical needs as presented by his Lupus complicated by Vascularitis.

Plaintiff argues that he has put forth sufficient evidence to meet his burden to defeat defendants' motion for summary judgment because he was exhibiting symptoms of Lupus starting in June 15, 1995 but he did not begin to receive treatment until six months later when it was too late to save his toes. Plaintiff argues that both defendants knew of the serious nature of his condition but did not do anything about it. Specifically he points to two instances where scheduled appointments with a specialist were cancelled and two instances when medical providers at ECMC requested that plaintiff be seen as soon as possible by a specialist, yet defendants did not expeditiously schedule such appointments. According to plaintiff this equated to defiance by defendants to an express instruction of a prison doctor which is evidence of an Eighth Amendment claim sufficient to warrant denial of defendants' summary judgment motion.

Assuming arguendo that defendants did defy doctors' orders, such a showing without more would be insufficient to show a violation of plaintiff's Eighth Amendment rights. Gill v. Mooney, 824 F.2d 192 (2d Cir. 1987) — relied upon by plaintiff for the proposition that failure to obey doctor's orders is grounds to find an Eighth Amendment violation — is limited to situations where defendant interfered with "medically prescribed treatment solely for the purpose of causing him pain." Id. at 196. Mere allegations that the treatment was inconsistent with doctor's orders is insufficient to show a violation. Ross v. Kelly, 784 F. Supp. 35, 46 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040 (1992). Here plaintiff has offered nothing other than his own allegations that, because defendants did not strictly adhere to requests by health care professionals at ECMC that plaintiff be sent to see a specialist, defendants must have been deliberately indifferent to his medical needs. The record however shows that both Apps and Unger had made independent investigations and proceeded the way they did, not because they were indifferent to his needs but rather because they determined in good faith that plaintiff was receiving an appropriate level of care for his medical complaints. Plaintiff's argument also is flawed because, if this Court were to hold that such was sufficient, it would make an Eighth Amendment claim entirely indistinguishable from a medical malpractice claim in every instance in which a prisoner did not have his condition immediately and flawlessly diagnosed and treated by prison officials. Plaintiff's reference to this time period as a "delay" in treatment — Pl.'s Mem. in Opp'n to Summ. J. at 10 — ignores the fact that defendants had provided him with extensive medical treatment from the onset of his symptoms until his toes were amputated.

Plaintiff next argues that, despite the fact that defendants provided him with extensive medical treatment, defendants have shown deliberate indifference to his medical needs by their awareness that plaintiff's condition was not improving and therefore should have expedited his request to get outside care. Hathaway at 68. This Court opines that the rationale in Hathaway is inapplicable here because, unlike those prison officials, Apps and Unger were aggressively trying different treatments in order to discover the cause of plaintiff's medical problems.

Finally, plaintiff argues that a showing of extensive medical treatment does not necessarily always entitle prison officials to summary judgment. Archer v. Dutcher, 733 F.2d 14, 16-18 (2d Cir. 1984). The present situation however differs from that in Archer because that prisoner was able to identify "intentional efforts on the part of defendants to delay her access to medical care at a time she was in extreme pain." Ibid. Plaintiff has not alleged any facts which, if true, would show that defendants intentionally delayed his access to medical care. Therefore this Court is convinced that he has not shown that defendants' conduct could amount to anything more than malpractice. Because plaintiff has not met his burden of showing that defendants were deliberately indifferent to his serious medical needs, it is unnecessary to decide whether Apps and Unger had personal involvement in plaintiff's medical decisions.

Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that this case shall be closed.