Johnson v. Brown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ANGELO D. JOHNSON,

Plaintiff,

No. 20-CV-3280 (KMK)

v.

OPINION & ORDER

REV. BROWN and P.O. KOSSEFF-

SALCHERT,

Defendants.

Appearances:

Angelo D. Johnson

Romulus, NY

Pro Se Plaintiff

Janice Powers, Esq.

Dorothy M. Keogh, Esq.

New York Attorney General’s Office

White Plains, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Angelo D. Johnson (“Plaintiff”), proceeding pro se, brings this Action against Reverend

Mary Ann Brown (“Brown”) and Rhonda Kosseff-Salchert, Physician’s Assistant (“Kosseff-

Salchert”; together, “Defendants”), pursuant to 42 U.S.C. § 1983, based on Brown’s alleged

violation of Plaintiff’s First Amendment rights and Kosseff-Salchert’s alleged violation of

Plaintiff’s Eighth Amendment rights via certain events which took place while Plaintiff was

incarcerated at Downstate Correctional Facility in Fishkill, NY (“Downstate”). (See generally

Compl. (Dkt. No. 2).) Before the Court is Defendants’ Motion for Summary Judgment (the

“Motion”). (See Not. of Mot. (Dkt. No. 35).) For the following reasons, Defendants’ Motion is

granted.

I. Background

A. Factual Background

The following facts are taken from Defendants’ Statement pursuant to Local Rule 56.1,

(see Defs.’ Rule 56.1 Statement (“Defs.’ 56.1”) (Dkt. No. 36)), and the admissible evidence

submitted by Defendants.1 These facts are recounted “in the light most favorable to” Plaintiff,

the non-movant. See Torcivia v. Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021). The facts

below are in dispute only to the extent indicated.2

1 As explained infra, Plaintiff did not respond to Defendants’ Motion, and therefore, has

not submitted any evidence to the Court.

2 Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise

statement, in numbered paragraphs, of the material facts as to which the moving party contends

there is no genuine issue to be tried.” Local Civ. R. 56.1(a). The non-moving party, in turn,

must submit “a correspondingly numbered paragraph responding to each numbered paragraph in

the statement of the moving party, and if necessary, additional paragraphs containing a separate,

short[,] and concise statement of additional material facts as to which it is contended that there

exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “Pro se litigants are not excused from

meeting the requirements of Local Rule 56.1,” Freistat v. Gasperetti, No. 17-CV-5870, 2021

WL 4463218, at *1 (E.D.N.Y. Sept. 29, 2021) (italics, alteration, and citation omitted), and “[a]

non[-]moving party’s failure to respond to a Rule 56.1 statement permits the court to conclude

that the facts asserted in the statement are uncontested and admissible,” T.Y. v. N.Y.C. Dep’t of

Educ., 584 F.3d 412, 418 (2d Cir. 2009); see also Biberaj v. Pritchard Indus., Inc., 859 F. Supp.

2d 549, 553 n.3 (S.D.N.Y. 2012) (same). Here, Defendants filed and served their Statement

pursuant to Rule 56.1, (see Dkt. Nos. 36, 39), and served a Statement notifying Plaintiff of the

potential consequences of not responding to the Motion, as required by Local Rule 56.2, (see

Dkt. No. 39). Despite this notice, Plaintiff failed to submit a response either to Defendants’ 56.1

Statement, in particular, or Defendants’ Motion, in general. Accordingly, the Court may

conclude that the facts in Defendants’ 56.1 Statement are uncontested and admissible. See

Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y.

Mar. 13, 2014) (concluding that because the pro se plaintiff did not submit a Rule 56.1 statement

in response to the defendant’s statement of facts, “there [were] no material issues of fact”);

Anand v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL 4757837, at *7

(S.D.N.Y. Aug. 29, 2013) (same).

Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when

confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d

1. Parties’ Backgrounds

At all times relevant to the instant Action, Downstate was a maximum-security facility

operated by the New York Department of Corrections and Community Supervision

(“DOCCS”).3 (See Defs.’ 56.1 ¶¶ 1, 3.) Downstate was used as a reception and classification

facility, where inmates would be registered, receive evaluations, and be classified before being

transferred to a permanent housing facility. (See id. ¶ 3.) Inmate classification includes a health

screening, during which health services personnel determine if an inmate has any immediate

health-related issues. (See id. ¶ 6.) Downstate did not permanently house inmates who required

serious or extensive medical care. (See id. ¶ 8.)

Plaintiff entered Downstate as a newly-convicted prisoner on September 10, 2018, where

he remained until October 28, 2018, when he was transferred to Great Meadow Correctional

Cir. 1988), the Court will “in its discretion opt to conduct an assiduous review of the record,”

including Plaintiff’s deposition testimony, when deciding the instant Motion, Holtz v. Rockefeller

& Co., 258 F.3d 62, 73 (2d Cir. 2001) (quotation marks omitted); see also Day v. MTA N.Y.C.

Transit Auth., No. 17-CV-7270, 2021 WL 4481155, at *9 (S.D.N.Y. Sept. 30, 2021) (“[W]here a

pro se plaintiff fails to submit a proper Rule 56.1 statement in opposition to a summary judgment

motion, the [c]ourt retains some discretion to consider the substance of the plaintiff’s arguments,

where actually supported by evidentiary submissions.” (citation omitted) (first alteration in

original)); Berry v. Marchinkowski, 137 F. Supp. 3d 495, 502 n.1 (S.D.N.Y. 2015) (considering

“the statements and documents in [the] [p]laintiff’s opposition papers to determine if there are

any material issues of fact based on the evidence in the record,” but disregarding factual

assertions that “do not contain citations to the record, or are not supported by the citations in the

record”); Houston v. Teamsters Loc. 210, Affiliated Health & Ins. Fund-Vacation Fringe Benefit

Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014) (“Although [the] plaintiffs did not file a Rule

56.1 statement, the [c]ourt has independently reviewed the record to ensure that there is

uncontroverted evidence to support the paragraphs referenced in [the] defendants’ Rule 56.1.”);

Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27,

2013) (explaining that “[t]he [c]ourt ha[d] considered the [motions for summary judgment] in

light of the entirety of the record to afford [the pro se] [p]laintiff the special solicitude to which

he [was] entitled” where the plaintiff failed to submit a Rule 56.1 response).

3 Downstate was permanently closed in March 2022. See New York Closes 6 State

Prisons as Inmate Numbers Drop, NBC NEW YORK (Mar. 10, 2022),

https://www.nbcnewyork.com/news/local/new-york-closes-6-state-prisons-as-inmate-numbers-

drop/3593510/.

Facility (“Great Meadow”). (See id. ¶¶ 1–2.) At the time he entered Downstate custody,

Plaintiff was suffering from a series of medical conditions concerning his eyes: glaucoma,

keratitis, and advanced astigmatism. (See Decl. of Janice Powers in Supp. of Mot. (“Powers

Decl.”) (Dkt. No. 37) Ex. G (“Pl. Dep.”), at 6:14–21 (Dkt. No. 37-7).) To treat and manage these

conditions, Plaintiff was prescribed medication and needed to use contact lenses. (See id. at

6:22–7:15, 8:14–10:10.)

As also relevant to this Action, when Plaintiff entered Downstate custody, he was a

Rastafarian. (See id. at 14:13–21.) Plaintiff became a Rastafarian in 2013, when he was serving

a previous sentence in DOCCS custody, (see id. at 14:18–25, 25:4–7), and remained a

Rastafarian until 2021, when he became a Jehovah’s Witness, (see id. at 17:20–18:4, 25:8–14).

2. Contact Lenses Incident

On September 19, 2018, approximately one week after Plaintiff arrived at Downstate,

Kosseff-Salchert—a licensed Physician’s Assistant employed by DOCCS—reviewed Plaintiff’s

medical records and made an initial referral for Plaintiff to be seen by an optometrist to review

his glaucoma medications and determine if he needed additional eye care treatment. (See Defs.’

56.1 ¶¶ 16, 19; see also Powers Decl. Ex. A (“Kosseff-Salchert Decl.”), ¶ 7 (Dkt. No. 37-1).)

Kosseff-Salchert is not an eye specialist and accordingly is not able to provide eye care, (see

Defs.’ 56.1 ¶ 18); in fact, DOCCS did not employ an eye specialist to work at Downstate, rather,

DOCCS would pool consultation requests for specialists and assign a date for a specialist to visit

Downstate to conduct examinations of multiple inmates, (see id. ¶¶ 20–22). Accordingly, after

Kosseff-Salchert input a referral for Plaintiff to be seen by an optometrist, DOCCS assigned

Dr. Richard Wurzel (“Wurzel”) to visit Downstate on October 18, 2018. (See id. ¶ 23.) Plaintiff

claims that he also asked Kosseff-Salchert for new contact lenses, because the ones that he

arrived to Downstate with were worn out and needed to be replaced. (See Pl. Dep. 41:6–20.)

Wurzel examined Plaintiff on October 18, 2018 and recommended that, given Plaintiff’s

history of glaucoma, Plaintiff be given ocular tomography and vision field tests. (See Defs.’ 56.1

¶¶ 24, 26.) Wurzel also recommended that Plaintiff be considered for contact lenses at his

permanent housing facility, given his pathological myopia (i.e., nearsightedness). (See id. ¶ 27.)

Later that day, after receiving a copy of Wurzel’s eye examination record, Kosseff-Salchert

entered consultation requests for an ocular tomography test and for a visual acuity test. (See id.

¶¶ 28, 29.) However, despite requesting them on multiple occasions, Plaintiff did not receive

contact lenses at that time or at any point during his stay at Downstate. (See Pl Dep. 47:13–18.)

On December 3, 2018, after Plaintiff was transferred to Great Meadow, a provider noted

that Plaintiff should be evaluated for contact lenses per a recommendation from a Downstate

provider, (see Defs.’ 56.1 ¶ 30), but Plaintiff still did not receive new contact lenses, (see Pl.

Dep. 50:6–18). Plaintiff was later transferred to Coxsackie Correctional Facility (“Coxsackie”),

where he was administered the ocular tomography and visual acuity tests on January 28, 2019.

(See Kosseff-Salchert Decl. ¶ 13.) However, Plaintiff claims he did not receive new contact

lenses until many months later, which led him to continuously re-wear the same contact lenses

for an extended period of time, (see id. at 50:9–20), causing him to suffer eye pain, infections,

and double vision, (see id. at 36:6–21, 51:10–21).

3. Negust Day Incident

As explained above, when Plaintiff entered Downstate in September 2018, Plaintiff was a

Rastafarian. While Plaintiff had been registered as such during a previous incarceration, (see Pl.

Dep. 14:13–21), Plaintiff did not register as a Rastafarian with Downstate until October 22,

2018, (see Defs.’ 56.1 ¶ 14).

On October 7, 2018, Downstate hosted a ceremony for a Rastafarian holiday called

Negust Day. (See id. ¶ 10.) Plaintiff was interested in attending the Negust Day celebration—

and had informed Brown, Downstate’s Chaplain. (id. ¶ 9), about his interest in mid-September,

(see Pl. Dep. 12:24–13:24)—but because he was not registered as a Rastafarian on the day of the

celebration, Brown did not allow Plaintiff to attend, (see Defs.’ 56.1 ¶¶ 11–13).

B. Procedural History

On April 23, 2020, Plaintiff’s Complaint was docketed, bringing claims against

Defendants in addition to claims against a group of 21 other defendants in connection with

alleged incidents that took place when Plaintiff was incarcerated at Great Meadow (in Comstock,

NY) and Five Points Correctional Facility (in Romulus, NY) (“Five Points”). (See Compl.) On

May 14, 2020, Plaintiff’s application to proceed in forma pauperis (“IFP”) was granted, (see Dkt.

No. 4), and on June 3, 2020, the Court entered an Order of Service, in which the Court severed

and transferred to the Northern District of New York Plaintiff’s claims against the 21 defendants

against whom Plaintiff brought claims in connection with events that allegedly took place at

Great Meadow and Five Points, (see Order of Service (Dkt. No. 6)). On September 20, 2020,

Defendants filed their Answer. (See Answer (Dkt. No. 14).) On April 15, 2021, the Court

entered a Case Management Plan, (see Case Mgmt. Plan (Dkt. No. 23)), and the Parties

proceeded to discovery, (see Dkt. Nos. 24–30).

On October 1, 2021, Defendants filed a pre-motion letter in anticipation of filing a

motion for summary judgment, (see Dkt. No. 31), and the Court adopted a briefing schedule, (see

Dkt. No. 32). On November 12, 2021, Defendants filed their Motion, Rule 56.1 Statement, and

ancillary papers. (See Not. of Mot.; Defs.’ 56.1; Powers Decl.; Defs.’ Mem. of Law in Supp. of

Mot. (“Defs.’ Mem.”) (Dkt. No. 38); Aff. of Service (Dkt. No. 39).) To date, Plaintiff has failed

to respond to Defendants’ Motion, (see Dkt.), however on June 9, 2022, Plaintiff filed a letter to

the Court in which Plaintiff explained that he had been unable to litigate his claims against

Defendants “for the last 5 months” due to certain medical issues and requested that the Court

“provide Plaintiff with all necessary tools to allow Plaintiff the right to effectively litigate his

serious claims against [D]efendants.” (Dkt. No. 40.) While the Court is sympathetic to

Plaintiff’s medical challenges, Plaintiff has explained that his medical difficulties began in

January 2022, and Plaintiff’s response to Defendants’ Motion was due in December 2021, (see

Dkt. No. 34). Moreover, Plaintiff has never sought and does not appear to currently be seeking

an extension. (See Dkt. No. 40.) As such, the Court will deem Defendants’ Motion fully

submitted.

II. Discussion

A. Standard of Review

Summary judgment is appropriate where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.

2014) (same). “In deciding whether to award summary judgment, the [C]ourt must construe the

record evidence in the light most favorable to the non-moving party and draw all reasonable

inferences in its favor.” Torcivia, 17 F.4th at 354; see also Horror Inc. v. Miller, 15 F.4th 232,

240 (2d Cir. 2021) (same). “It is the movant’s burden to show that no genuine factual dispute

exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also

Red Pocket, Inc. v. Interactive Commc’ns Int’l, Inc., No. 17-CV-5670, 2020 WL 838279, at *4

(S.D.N.Y. Feb. 20, 2020) (same).

“However, when the burden of proof at trial would fall on the non[-]moving party, it

ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an

essential element of the non[-]movant’s claim,” in which case “the non[-]moving party must

come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order

to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d

114, 123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a

[summary judgment] motion . . . , [a non-movant] need[s] to create more than a ‘metaphysical’

possibility that his allegations were correct; he need[s] to ‘come forward with specific facts

showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d

Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the

pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)

(quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a

motion for summary judgment is properly supported by documents or other evidentiary

materials, the party opposing summary judgment may not merely rest on the allegations or

denials of his pleading.”). And, “[w]hen opposing parties tell two different stories, one of which

is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”

Scott v. Harris, 550 U.S. 372, 380 (2007).

“On a motion for summary judgment, a fact is material if it might affect the outcome of

the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental

Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role

of the court is not to resolve disputed issues of fact but to assess whether there are any factual

issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks

omitted). Thus, a court’s goal should be “to isolate and dispose of factually unsupported

claims.” Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004)

(quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).

When ruling on a motion for summary judgment, a district court should consider only

evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,

164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the

statements ‘must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso v.

Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting FED. R. CIV. P. 56(c)(4)); see also Sellers v.

M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires a motion for

summary judgment to be supported with affidavits based on personal knowledge . . . .”); Baity,

51 F. Supp. 3d at 419 (disregarding “statements not based on [the] [p]laintiff’s personal

knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24,

2007) (“The test for admissibility is whether a reasonable trier of fact could believe the witness

had personal knowledge.” (quotation marks omitted)).

Finally, the Second Circuit has instructed that when a court considers a motion for

summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham, 848

F.2d at 344; Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7

(S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se

litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest,”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and quotation

marks omitted). Further, “the failure to oppose a motion for summary judgment alone does not

justify the granting of summary judgment.” Vt. Teddy Bear Co., 373 F.3d at 244; see also

Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination of

the legal validity of an entry of summary judgment should . . . be[] made in light of the opposing

party’s pro se status” (italics omitted)). Nonetheless, “proceeding pro se does not otherwise

relieve a litigant of the usual requirements of summary judgment, and a pro se party’s bald

assertions unsupported by evidence . . . are insufficient to overcome a motion for summary

judgment.” Houston, 27 F. Supp. 3d at 351 (italics and quotation marks omitted); see also

Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2 (S.D.N.Y. July 31, 2017)

(same).

B. Analysis

Liberally construed, Plaintiff alleges (1) deliberate indifference to his medical needs,

based on Kosseff-Salchert’s failure to provide Plaintiff with contact lenses, (see Compl. ¶¶ 33–

38); and (2) violation of his First Amendment right to freely exercise Rastafarianism, based on

Brown’s refusal to allow Plaintiff to attend the 2018 Negust Day celebration, (see id. ¶¶ 39–44).4

Defendants argue that they are entitled to summary judgment on both of Plaintiff’s claims

because there is no dispute that (1) the denial of contact lenses does not constitute a sufficiently

serious deprivation for Eighth Amendment purposes and Kosseff-Salchert did not act with

deliberate indifference, (see Defs.’ Mem. 6–12); and (2) requiring registration of an inmate’s

religion is a constitutionally permissible restriction on an inmate’s religious practice, (see id. at

3–5). The Court will address each argument, in turn.

1. Eighth Amendment Claim Against Kosseff-Salchert

a. Legal Standard

“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs of

prisoners.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)

(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “There are two elements to a claim of

deliberate indifference to a serious medical condition.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d

4 Plaintiff has brought his claims against both Kosseff-Salchert and Brown in their

individual capacities. (See Compl. ¶¶ 4, 5)

Cir. 2009), overruled on other grounds by Darnell v. Pineiro, 581 F.3d 63 (2d Cir. 2017). “The

first requirement is objective: the alleged deprivation of adequate medical care must be

sufficiently serious.” Spavone, 719 F.3d at 138 (quotation marks omitted). Under this objective

requirement, a court must inquire first, “whether the prisoner was actually deprived of adequate

medical care,” and second, “whether the inadequacy in medical care is sufficiently serious.”

Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006); see also Casanova v. Maldonado,

No. 17-CV-1466, 2021 WL 3621686, at *7 (S.D.N.Y. Aug. 16, 2021) (same). The latter 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.” Salahuddin, 467 F.3d at 280. As part

of this objective element, “the inmate must show that the conditions, either alone or in

combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult, 717

F.3d 119, 125 (2d Cir. 2013). “There is no settled, precise metric to guide a court in its

estimation of the seriousness of a prisoner’s medical condition.” Brock v. Wright, 315 F.3d 158,

162 (2d Cir. 2003). Nevertheless, the Second Circuit has presented “a non-exhaustive list” of

factors to consider: “(1) whether a reasonable doctor or patient would perceive the medical need

in question as ‘important and worthy of comment or treatment,’ (2) whether the medical

condition significantly affects daily activities, and (3) ‘the existence of chronic and substantial

pain.’” Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); see also

Casanova, 2021 WL 3621686, at *7 (explaining that the inquiry of whether “the inadequacy in

medical care is sufficiently serious . . . contemplates a condition of urgency that may result in

degeneration or extreme pain” (quotation marks omitted)).

“The second requirement is subjective: the charged officials must be subjectively reckless

in their denial of medical care.” Spavone, 719 F.3d at 138. Here, the inquiry is whether

defendants “knew of and disregarded an excessive risk to [a plaintiff’s] health or safety” while

“both aware of facts from which the inference could be drawn that a substantial risk of serious

harm existed, and also draw the inference.” Caiozzo, 581 F.3d at 72 (alterations and quotation

marks omitted); accord Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference

is a mental state equivalent to subjective recklessness,” and it “requires that the charged official

act or fail to act while actually aware of a substantial risk that serious harm will result.” Nielsen

v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (quotation marks omitted). By contrast, “mere medical

malpractice is not tantamount to deliberate indifference,” unless “the malpractice involves

culpable recklessness, i.e., . . . a conscious disregard of a substantial risk of serious harm.”

Chance, 143 F.3d at 703 (quotation marks omitted). Moreover, “mere disagreement over the

proper treatment does not create a constitutional claim,” and “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.” Id.; see also Sonds v. St. Barnabas Hosp. Corr. Health Servs.,

151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (“A difference of opinion between a prisoner and

prison officials regarding medical treatment does not, as a matter of law, constitute deliberate

indifference. Nor does the fact that an inmate might prefer an alternative treatment, or feels that

he did not get the level of medical attention he preferred.” (citations omitted)).

b. Application

As to the first element, the Court agrees with Defendants that there is no genuine dispute

that “[t]he need for contact lenses is not a sufficiently serious medical condition.” (Defs.’ Mem.

6.) While Plaintiff has claimed that when he arrived at Downstate in September 10, 2018, his

contact lenses were already worn out and needed to be replaced, he has adduced no evidence to

demonstrate that the failure to replace his contact lenses during his six-week stay at Downstate

caused him to suffer a condition that could “result in degeneration or extreme pain,” as required

to meet the Eighth Amendment standard. See Casanova, 2021 WL 3621686, at *7. It is for this

reason that Courts have held that, for instance, where “[the] defendants provided [the plaintiff

with] an inadequate supply of proper lens cleaners, disinfectants[,] and eye lubricants,

and . . . the unmonitored use of [the plaintiff’s] [contact] lenses caused [the plaintiff] an eye

infection, discomfort, cloudy vision, irritation, and less than sharp acuity,” the condition was

“not one of degeneration or extreme pain and [was] not sufficiently serious to constitute cruel

and unusual punishment.” Davidson v. Scully, 155 F. Supp. 2d 77, 88 (S.D.N.Y. 2001); see also

Sanford v. Hayden, No. 92-CV-7629, 1994 U.S. Dist. LEXIS 21265, at *20–22 (S.D.N.Y.

Aug. 29, 1994) (explaining that, inter alia, blurred vision and headaches due to fact that glasses

were not replaced did not constitute a medical condition that was sufficiently serious for

purposes of either the Eighth or Fourteenth Amendment); cf. Blanch v. Schiff, No. 18-CV-838,

2021 WL 1177743, at *14 (S.D.N.Y. Mar. 26, 2021) (explaining, on a motion to dismiss, that the

plaintiff’s allegations that “he told [the defendant-nurse] during his initial screening that he

needed to see an eye doctor regarding glasses and that, despite subsequent complaints regarding

pain in his eyes, [the] [p]laintiff was not sent to an eye doctor until [4 months later]” did not

suffice for purposes of the Eighth Amendment because “numerous have courts have held

that . . . delay in procuring glasses does not amount to a constitutional violation”).

While the Second Circuit held in Koehl v. Dalshiem, 85 F.3d 86 (2d Cir. 1996), that the

consequences resulting from the confiscation of specially prescribed eyeglasses “to avoid double

vision and the loss of depth perception that resulted from a prior head injury” were sufficiently

serious for purposes of the Eighth Amendment, id. at 88, the Court finds that the instant Action is

distinguishable. In Koehl, the plaintiff provided evidence demonstrating that his vision had

severely degenerated as a result of the confiscation of his glasses, explaining that his left eye had

“shifted fully into the corner of the socket and [was] almost sightless” and that his visual

deficiencies “cause[d] [him] to fall or walk into objects.” Id. at 87, 88. Here, Plaintiff has

adduced no competent evidence to demonstrate that his vision degenerated as a result of Kosseff-

Salchert’s failure to replace his contact lenses while at Downstate. While during his deposition,

Plaintiff generally complained of suffering from such conditions as double vision and eye

infections, see supra I.A.2., he has failed to put forth any evidence either to support these claims

or, critically, to demonstrate that his vision degenerated. See, e.g., Walton v. Lee, No. 15-CV-

3080, 2019 WL 1437912, at *8 (S.D.N.Y. Mar. 29, 2019) (adopting recommendation to grant

summary judgment, finding that “[the plaintiff’s] deposition testimony [as to alleged injuries to

his head and back as well as a chipped tooth] alone is insufficient to raise an issue of fact” where

“there is no evidence of any injuries to his head, back[,] or tooth in any contemporaneous

medical reports or any other part of the record”); Beauvoir v. Falco, 345 F. Supp. 3d 350, 367

n.5 (S.D.N.Y. 2018) (granting summary judgment on deliberate indifference claim where the

plaintiff had testified to severe pain after being pepper sprayed because “there is not one piece of

corroborating evidence for [the plaintiff’s] testimony” and “[a]ccordingly, the [p]laintiff’s

testimony is simply self-serving testimony that cannot be used to defeat summary judgment”).

As such, Koehl is inapposite. Accordingly, the Court finds that Plaintiff has adduced no

evidence to create a genuine dispute that he suffered an objectively serious constitutional

deprivation.5

5 It is also worth noting that even if the Court were to construe Plaintiff’s claims of, for

instance, “eye infections and double vision,” (Pl. Dep. 36:11–21; see also id. at 52:24–53:9), as

competent evidence of degeneration, Plaintiff has failed to adequately link these complaints

specifically to his time at Downstate. During his deposition, Plaintiff complained of issues

involving his eyes and vision due to the denial of contact lenses for a period of two years, (see id.

at 50:9–14), during which time he was housed at no fewer than five facilities, (see id. at 51:22–

52:18 (referencing prison stays at Downstate, Great Meadows, Five Points, and “Sullivan

Even if Plaintiff could demonstrate that he suffered a condition that was sufficiently

serious for Eighth Amendment purposes, Plaintiff has failed to demonstrate that Kosseff-Salchert

acted with deliberate indifference. It is undisputed that, following Plaintiff’s September 10, 2018

arrival at Downstate, Kosseff-Salchert reviewed Plaintiff’s medical records and made an initial

referral for him to be seen by an optometrist on September 19, 2018. See supra I.A.2. Wurzel

came to Downstate and examined Plaintiff on October 18, 2018, and recommended that certain

follow-up tests be performed. See id. Later that same day, Kosseff-Salchert entered consultation

requests for these follow-up tests, which were performed approximately three months later, when

Plaintiff had been transferred to another facility. See id. Plaintiff left Downstate custody on

October 28, 2018. See supra I.A.1. Put simply, the undisputed evidence establishes that

Correction”); 58:17–23 (referencing prison stay at Coxsackie)). Because “[i]t is well settled that,

in order to establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff

must show . . . the defendant’s personal involvement in the alleged constitutional deprivation,”

Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013), and Kosseff-Salchert’s only

contact with Plaintiff was at Downstate, (see Defs.’ 56.1 ¶¶ 16–31), Kosseff-Salchert could only

conceivably be liable for a constitutional violation that took place at Downstate. However,

Plaintiff has failed to demonstrate that the various adverse effects of which he complained were

the result of Kosseff-Salchert’s failure to provide him with replacement contacts at Downstate, as

opposed to another individual’s failure to provide him with replacement contacts at another

facility or even a collection of failures given his alleged need to continuously re-wear the same

contact lenses for an extended period of time. See Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d

134, 145 (2d Cir. 1981) (“Defendants may be held liable under [§] 1983 if they . . . exhibited

deliberate indifference to a known injury, a known risk, or a specific duty, and their failure to

perform the duty or act to ameliorate the risk or injury was a proximate cause of [the] plaintiff’s

deprivation of rights under the Constitution.”); Toliver v. City of New York, No. 10-CV-5806,

2013 WL 6476791, at *5 (S.D.N.Y. Dec. 10, 2013) (recommending grant of summary judgment

on deliberate indifference to medical needs claim where “[the plaintiff] has not shown that any

harm was caused by the delay between the time of the incident and his later treatment by medical

staff” (emphasis added)), report and recommendation adopted, 2014 WL 549402 (S.D.N.Y.

Feb. 11, 2014). Indeed, the record evidence would seem to suggest that Plaintiff’s need for

contact lenses was not urgent while at Downstate, given that Wurzel only recommended that

Plaintiff be considered for contact lenses once Plaintiff arrived at his permanent housing facility.

See supra I.A.2.

Kosseff-Salchert did not ignore Plaintiff’s optical health needs or deny Plaintiff optical health

care. While Plaintiff may have disagreed with Kosseff-Salchert’s treatment plan or preferred

that Kosseff-Salchert follow a different treatment plan, these claims are insufficient to

demonstrate deliberate indifference. See Sonds, 151 F. Supp. 2d at 311 (“A difference of opinion

between a prisoner and prison officials regarding medical treatment does not, as a matter of law,

constitute deliberate indifference.” (collecting cases)); see also Melvin v. County of Westchester,

No. 14-CV-2995, 2016 WL 1254394, at *7 (S.D.N.Y. Mar. 29, 2016) (“[T]reatment of a

prisoner’s medical condition generally defeats a claim of deliberate indifference.” (citation

omitted)). Moreover, as Defendants point out, (see Defs.’ Mem. 9–11), because Kosseff-

Salchert is only a Physician’s Assistant and not an optometrist or ophthalmologist, Kosseff-

Salchert was not authorized to provide Plaintiff with a prescription for contact lenses, further

undermining any charge of deliberate indifference. See Romano v. Weinstock, No. 17-CV-137,

2018 WL 5728064, at *17 (N.D.N.Y. May 30, 2018) (finding that the plaintiff had failed to

establish that the defendants “knew of and disregarded an ‘excessive risk’ to [the plaintiff’s]

health” where “[t]he record demonstrates that [the defendants] addressed [the] plaintiff’s

complaints to the extent they had authority”), report and recommendation adopted, 2018 WL

4299984 (N.D.N.Y. Sept. 10, 2018); cf. Alston v. Howard, 925 F. Supp. 1034, 1040 n.6

(S.D.N.Y. 1996) (finding, on a motion to dismiss, that the plaintiff could not state a claim for

deliberate indifference against a nurse “who had no authority to prescribe or deny him” the

sought-after medical treatment).

Accordingly, the Court finds that Kosseff-Salchert is entitled to summary judgment on

Plaintiff’s Eighth Amendment claim.

2. First Amendment Claim Against Brown

a. Legal Standard

It is well-established that the First Amendment affords inmates constitutional protection

to practice their religion. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (explaining

that “[i]nmates clearly retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion” (citation omitted)); Ford v.

McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (explaining that “[p]risoners have long been

understood to retain some measure of the constitutional protection afforded by the First

Amendment’s Free Exercise Clause”). However, because of inmates’ unique circumstances,

their free exercise rights are necessarily more constrained than those of other persons. See

Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (“Balanced against the constitutional

protections afforded prison inmates, including the right to free exercise of religion, are the

interests of prison officials charged with complex duties arising from administration of the penal

system.” (citing Pell v. Procunier, 417 U.S. 817, 822 (1974))).

A prisoner’s free exercise claims are therefore “judged under a ‘reasonableness’ test less

restrictive than that ordinarily applied to alleged infringements of fundamental constitutional

rights.” Ford, 352 F.3d at 588 (quoting Farid v. Smith, 850 F.2d 917, 925 (2d Cir. 1988)). To

succeed on a free exercise claim, an inmate must “show at the threshold that the disputed

conduct substantially burdens his sincerely held religious beliefs.” McLeod v. Williams, No. 18-

CV-115, 2020 WL 2512164, at *3 (S.D.N.Y. May 15, 2020) (quoting Brandon v. Kinter, 938

F.3d 21, 32 (2d Cir. 2019)); see also Salahuddin, 467 F.3d at 274–75 (same). “To demonstrate a

‘substantial burden,’ the plaintiff must show that ‘the state has put substantial pressure on him to

modify his behavior and to violate his beliefs.’” Wilson v. City of New York, No. 18-CV-2262,

2021 WL 5908860, at *4 (E.D.N.Y. Dec. 14, 2021) (alterations omitted) (quoting Rossi v.

Fishcer, No. 13-CV-3167, 2015 WL 769551, at *7 (S.D.N.Y. Feb. 24, 2015)). That is, “[t]he

relevant question in determining whether [the inmate’s] religious beliefs were substantially

burdened is whether participation in the [religious activity], in particular, is considered central or

important to [the inmate’s religious] practice.” Ford, 352 F.3d at 593–94. The Second Circuit

has made clear that “establishing a substantial burden is ‘not a particularly onerous task.’”

Brandon, 938 F.3d at 32 (quoting McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004)).

“Once [an inmate] establishes this burden, ‘[t]he defendant[] then bear[s] the relatively limited

burden of identifying the legitimate penological interests that justify the impinging conduct.’”

Smith v. Perlman, No. 11-CV-20, 2012 WL 929848, at *7 (N.D.N.Y. Mar. 19, 2012) (second

alteration in original) (quoting Salahuddin, 467 F.3d at 308); see also Green Haven Prison

Preparative Meeting of Religious Soc’y of Friends v. N.Y. State Dep’t of Corr. & Cmty.

Supervision, 16 F.4th 67, 83 (2d Cir. 2021) (“A prisoner’s [F]irst [A]mendment right to the free

exercise of his religious beliefs may only be infringed to the extent that such infringement is

reasonably related to legitimate penological interests.” (quoting Young v. Coughlin, 866 F.2d

567, 570 (2d Cir. 1989))). The burden remains with the inmate “to show that these articulated

concerns were irrational.” Salahuddin, 467 F.3d at 275 (alteration and quotation marks omitted).

b. Application

Even assuming arguendo that Plaintiff could demonstrate that Brown’s conduct

substantially burdened his sincerely held religious beliefs, the Court finds that Defendants have

identified a legitimate penological interest that Plaintiff cannot rebut. The record demonstrates

that Brown did not allow Plaintiff to attend the 2018 Negust Day celebration because he was not

registered as a Rastafarian at that time, see supra I.A.3., and as Brown has explained “[i]t is a

critical security concern that prisoners follow the rules and do not seek to control their own

movement by claiming they have a right to attend events around the prison for which they are

not registered,” particularly at a maximum-security facility like Downstate. (Powers Decl. Ex. B

(“Brown Decl.”), ¶ 8 (Dkt. No. 37-2).) Indeed, the Second Circuit has explained in no uncertain

terms that “[r]egistration of religious affiliation . . . serv[es] several legitimate penological

interests,” because it “eliminates speculation and guesswork on the part of prison officials and

makes it less likely that a prisoner will manipulate the system by asserting various religions at

different times”; “allows prison officials to gauge the interests in any particular religion on the

part of the inmate population and thus decide whether a ‘congregation’ should be allowed”; and

“puts the institution on notice that certain religious accommodations will likely be sought and

thereby provides the institution with time to consider if and how to implement them,” which, “in

turn, makes such accommodations more likely and thereby reduced the circumstances in which

judicial intervention will be needed.” Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096–97 (2d

Cir. 1997); accord Johnson v. Delaunay, No. 09-CV-2462, 2010 WL 2541358, at *3–4

(S.D.N.Y. June 18, 2010). Plaintiff has put forth neither evidence nor argument to rebut these

well-settled concerns.

Accordingly, the Court finds that Brown is entitled to summary judgment on Plaintiff’s

First Amendment claim.

III. Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted.

The Clerk of Court is directed to terminate the pending Motion, (see Dkt. No. 35), enter

judgment for Defendants, mail a copy of this Opinion & Order to Plaintiff, and close this case.

SO ORDERED.

Dated: July 19, 2022

White Plains, New York

KENNETH M. KARAS

United States District Judge