The opinion of the court was delivered by: THOMAS J. MCAVOY
This matter was referred to Magistrate Judge Scanlon for a Report-Recommendation pursuant to a standing order dated November 12, 1986. This case is based on a civil rights complaint under 42 U.S.C. § 1983 in which plaintiff William Hogan alleges that he was denied adequate medical care in violation of his Eighth and Fourteenth Amendment rights. Plaintiff moves for a preliminary injunction forcing defendants to allow him to see a medical specialist (periodontist) to examine and treat his teeth at the state's expense. It should be noted here that defendants have stated that they would allow plaintiff to be examined and treated by a periodontist, but only at plaintiff's own expense. Defendants' have filed a cross motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgement and dismissal on the pleadings.
In his Report-Recommendation, Magistrate Judge Scanlon recommended that the court deny plaintiff's motion for preliminary injunctive relief. He further recommended the court grant defendants' motion for judgement on the pleadings and that the complaint be dismissed.
Plaintiff filed objections to the Report-Recommendation on August 1, 1994. In his objections, plaintiff basically reiterates his original complaint of defendants' deliberate indifference to his medical needs.
1. Fed. R. Civ. P. 12(c).
A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Also, "on a motion for judgment on the pleadings for failure to state a claim, the Court must assume the factual allegations of the non-moving party to be true, and resolve all inferences in his favor." Tomarkin v. Ward, 534 F. Supp. 1224, 1228 (S.D.N.Y. 1982).
A. Plaintiff's Fourteenth Amendment Equal Protection claim.
As a preliminary matter, the court notes that plaintiff's Fourteenth Amendment claim was inadequately alleged in his initial complaint. His request that it be considered as a separate cause of action was only submitted in connection with his objections to the Magistrate Judge's Report-Recommendation. Under Rule 15 of the Federal Rules of Civil Procedure, it is questionable whether plaintiff would be allowed to raise this claim at this time. But, given the leniency and broad reading given to pleadings made by pro se plaintiffs, e.g., Haines v. Kerner, 404 U.S. 519, 519-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (holding that complaints drafted by pro se petitioners are to be held to less stringent standards than formal pleadings drafted by lawyers), this court will consider this complaint as formally raised, in compliance with plaintiff's own request.
Upon consideration, the court finds plaintiff's equal protection claim to be without merit given the fact that indigent persons are not a protected suspect class under the Equal Protection Clause of the Fourteenth Amendment. The United States Supreme Court has stated, "at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). As such, "[a] century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes." Id. at 40.
B. Plaintiff's Eighth Amendment Claim.
Turning to plaintiff's Eighth Amendment claim, the court determines that even if all inferences are made in the light most favorable to plaintiff, this claim also fails. As noted in the Magistrate Judge's Report-Recommendation, in order to state a valid § 1983 Civil Rights action based on inadequate medical treatment, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). "There must be some conduct that 'shocks the conscience' or a 'barbarous act.' A complete denial of, or intentional effort to delay access to, medical care, or a reckless or callous indifference to the safety of prisoners will support a claim under § 1983. However, there is no right to the medical treatment of one's choice if the prescribed treatment is based on applicable medical standards." McCloud v. Delaney, 677 F. Supp. 230, 232 (S.D.N.Y. 1988). The Supreme Court decision in Estelle concluded that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain'. . . proscribed by the Eighth Amendment." Estelle, 429 U.S. at 104 (citing Gregg v. Georgia, 428 U.S. 153, 182-83, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)). Harm to a prisoner caused by accident, negligence or medical malpractice do not alone constitute the necessary deliberate indifference. Id. at 107-09.
The facts of Estelle are somewhat similar to the facts of the present case. In Estelle, a prisoner was seriously injured when a 600 lb. bail of cotton fell on him. He filed a claim for inadequate medical care and alleged deliberate indifference under § 1983. The court stated,
certainly an X-ray of [plaintiff's] lower back might have been in order and other tests conducted that would have led to appropriate diagnosis and treatment for the daily pain and suffering he was experiencing. . . . A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At ...