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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Steven SCOTT, Appellant, v. Glenn S. GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: August 10, 2006

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and KANE, JJ. Steven Scott, Dannemora, appellant pro se. Eliot Spitzer, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Rumsey, J.), entered August 24, 2005 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

Petitioner, a prison inmate, sustained an injury to his left shoulder while incarcerated.   Subsequently, petitioner was scheduled for a surgical procedure known as a “Mumford excision” which was intended to relieve petitioner's persistent pain.   Petitioner refused to undergo the procedure and was permitted to confer with an orthopedist who offered an alternative, but less successful and more invasive, surgical solution intended to repair the injury.   Petitioner's requests and administrative appeals to undergo the repair surgery were denied on the basis that it constituted a second opinion and was unnecessary.   Petitioner thereafter commenced this proceeding pursuant to CPLR article 78, seeking to compel respondents to provide him with the requested medical treatment.   Supreme Court dismissed petitioner's application, prompting this appeal.

 Initially, we note that because the determination is based upon respondent Facility Health Services Director's professional judgment as a physician, mandamus will not lie to compel him to act otherwise (see Matter of Davis v. Goord, 7 A.D.3d 889, 890, 776 N.Y.S.2d 651 [2004], lv. denied 3 N.Y.3d 604, 784 N.Y.S.2d 6, 817 N.E.2d 824 [2004];  DOCS Health Services Policy Manual 1.21). The record establishes that petitioner has consulted with physicians regarding his treatment several times, receives daily pain medication and has been scheduled to undergo the Mumford excision.   Moreover, petitioner has offered no proof that the requested surgery is medically necessary.   As such, petitioner has failed to establish that respondents have neglected his basic health care needs or exhibited a “ deliberate indifference” to his medical needs and we find no 8th Amendment violation (Matter of Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 [1976];  see Matter of Jarvis v. Pullman, 297 A.D.2d 842, 843, 747 N.Y.S.2d 126 [2002];  Matter of Smith v. Alves, 282 A.D.2d 844, 845, 725 N.Y.S.2d 404 [2001];  Matter of Singh v. Eagen, 236 A.D.2d 654, 655, 653 N.Y.S.2d 434 [1997] ).   Likewise, we are satisfied that the denial of his grievance is neither affected by an error of law nor arbitrary and capricious (see Matter of Davis v. Goord, supra at 890, 776 N.Y.S.2d 651;  Matter of Pittman v. Portuondo, 307 A.D.2d 485, 485-486, 761 N.Y.S.2d 744 [2003];  Matter of Singh v. Eagen, supra at 655, 653 N.Y.S.2d 434).

ORDERED that the judgment is affirmed, without costs.



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