Opinion
No. 09-2506-pr.
February 11, 2011.
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.
Robert Wesolowski, pro se, Attica, N.Y., for Appellant.
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., for Appellees.
PRESENT: WALKER, CHESTER J. STRAUB and ROBERT A. KATZMANN, Circuit Judges.
SUMMARY ORDER
Plaintiff-Appellant Robert Wesolowski, pro se, appeals from the December 12, 2008, 590 F.Supp.2d 431, 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted). Deliberate indifference "entails something more than mere negligence." Id. at 835, 114 S.Ct. 1970. A prison official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety." Id. at 837, 114 S.Ct. 1970. Officials "may be found free from liability if they responded reasonably to the risk." Id. at 844, 114 S.Ct. 1970. 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 (My., 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.