Edward BURGESS, Plaintiff-Appellant, v. Charles DUFRAIN; Tom Flynn; Dr. Glenn Champagne; Dr. B. Kim; Pete Guzman; Walter R. Kelly, Defendants-Appellees, 121 F. App'x 421

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Edward Burgess, pro se, appeals from a March 21, 2003 order of the United States District Court for the Northern District of New York (Kahn, J.), dismissing Burgess’s 42 U.S.C. § 1983 claim on

summary judgment. We assume that the parties are familiar with the facts, the procedural context, and specification of the appellate issues. Burgess alleges that the defendants denied him adequate medical care while Burgess was a prisoner in their custody, in violation of the Eighth Amendment to the United States Constitution. To establish an Eighth Amendment violation for inadequate provision of medical treatment, a prisoner must prove “deliberate indifference” to the inmate’s serious medical needs. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994).

Under this standard, “only the deliberate infliction of punishment, and not an ordinary lack of due care for prisoner interests or safety, lead[s] to liability.” Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999). “We review a district court’s grant of

summary judgment de novo, construing the evidence in the light most favorable to the non-moving party.” Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir.2003). “A district court must grant a motion for

summary judgment if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). Burgess’s factual allegations plead, at best, negligence in the treatment of his various medical conditions. As Burgess fails to allege facts that support an inference of deliberate disregard for his pain, Burgess has not alleged an Eighth Amendment violation.

Burgess may or may not have exhausted his administrative remedies, but as the government does not argue exhaustion and this appeal fails on its merits, we need not consider exhaustion. For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.