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CURRY v. FISCHER

April 12, 2004.

CORNELL CURRY, Plaintiff, -v.- BRIAN FISCHER, DR. J. PERILLI, DR. CURTIS JOHNSON, DR. SUSAN STUKES, and NURSE COUGHLIN, Defendants


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION
Cornell Curry, currently an inmate at the Franklin Correctional Facility, has brought this suit pro se under 42 U.S.C. § 1983 against various employees of the Sing Sing Correctional Facility ("Sing Sing") alleging that they were deliberately indifferent to his dental needs in violation of his rights under the Eighth Amendment. Defendants — the Superintendent of Sing Sing and members of Sing Sing's dental staff — have moved to dismiss Curry's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, the motion should be granted and Curry should be permitted to file an amended complaint.

I. BACKGROUND

  A. Procedural History

  The complaint in this action was filed on June 13, 2002. Complaint, filed June 13, 2002 (Docket #2) ("Compl."). The case was subsequently held in abeyance to allow Curry to exhaust his administrative remedies and was reopened by Order of the court on March 6, 2003. See Order, filed March 6, 2003 (Docket #5). On June 10, 2003, defendant Brian Fischer filed a motion to dismiss in lieu of an answer. See Notice of Motion, filed June 10, 2003 (Docket #14). In response, Curry submitted several documents including a "Notice of Affidavit in Opposition to Defendants Motion to dismiss the Complaint," dated July 7, 2003, filed August 22, 2003 (Docket #24) ("Affidavit"), which attached exhibits. Because this affidavit contained factual allegations that were not contained in the original complaint, the Court construed Curry's July 7, 2003 submissions as a motion to amend the complaint and deemed the factual allegations of the affidavit to supplement the allegations in the original complaint. See Order, filed August 22, 2003 (Docket #22). Thereafter, defendants filed the instant motion to dismiss. See Notice of Motion, filed September 22, 2003 (Docket #28).

  B. Facts

  For purposes of this motion, the facts alleged in the complaint and Curry's July 7, 2003 affidavit are assumed to be true.

  On November 30, 2000, while incarcerated at Sing Sing, Curry requested medical attention for an abscess forming in his mouth. He was assigned to Dr. Susan Stukes, who took x-rays and prescribed Motrin. Curry requested antibiotics but Dr. Stukes would not prescribe them. Compl. ¶ 1.

  On December 13, 2000, Curry was taken to the Sing Sing emergency room where Nurse Coughlin informed him that the abscess had burst, causing an infection in his mouth, swelling to his face, and a high temperature. She prescribed an antibiotic and Tylenol and issued Curry a pass valid for 72 hours so he could return to the emergency room. Compl. ¶ 2; Affidavit ¶ 3. On December 14, 2000, when Curry went to see Dr. Stukes, Dr. Stukes handed him a prescription for Motrin in the waiting room. She told Curry that she was busy, that she had reviewed Nurse Coughlin's report from the night before, and that she would not examine him. Compl. ¶ 3; Affidavit ¶ 4.

  On December 18 and 19, 2000, Curry was issued emergency passes to see Dr. Stukes in the dental department but Dr. Stukes apparently cancelled these passes and refused to see Curry. Compl. ¶ 4; Affidavit ¶ 5. On December 20, Curry was seen by the sick-call nurse, Nurse Hanson. Because the swelling was spreading, she sent Curry to the dental department but Dr. Stukes again refused to see him. Compl. ¶ 5. On either the 20th or 22nd, additional x-rays were taken, Curry was prescribed Amoxicillin, and he was scheduled to return a few days later. Compl. ¶ 6; Affidavit ¶ 6.

  On December 29th, Curry complained to the sick-call nurse that his condition had worsened. Specifically, he complained of pain and difficulty sleeping and eating. Nurse Hanson told him that he needed to be seen by Dr. Stukes but Dr. Stukes refused to see him. Compl. ¶ 7. On January 5, 2001, Curry was seen by Nurse Hanson, who measured his temperature at 102 degrees and again issued an emergency pass to see Dr. Stukes. Compl. ¶ 9; Affidavit ¶ 9. Curry's complaint states that Dr. Stukes did see Curry on January 5 but dismissed him without prescribing an antibiotic. Compl. ¶ 9. His affidavit, however, alleges that she refused to see him at all on that date. Affidavit ¶ 9. Curry also sought treatment on January 6, 8, and 9 but ran into difficulty obtaining the medications Nurse Hanson prescribed and was denied the treatment he requested. Compl. ¶¶ 10-11; Affidavit ¶¶ 10-11.

  On January 11 or 12, 2001, x-rays were taken. However, the radiologist had difficulty taking the x-rays because of the swelling. When Dr. Stukes was called in, she prescribed Amoxicillin to treat the swelling. However, Dr. Stukes refused to provide any medication to address the migraine headaches Curry was experiencing. Compl. ¶ 12; Affidavit ¶ 12. Also, she told Curry that if the x-rays could not be taken on the subsequent appointment, "he will have to treat himself, because she was not going to the trouble." Compl. ¶ 12.

  By sometime between January 16 and 18, the swelling had spread to Curry's neck and glands. He saw Dr. Curtis Johnson and explained the problems he was having with Dr. Stukes. Dr. Johnson told Curry that he was assigned to Dr. Stukes and that she would handle his medication. Compl. ¶¶ 13-14; Affidavit ¶ 13. Dr. Stukes refused to prescribe any medications. Affidavit ¶ 13.

  The sick-call nurse wrote Curry another pass for dental care on January 19, 2001. Again, Dr. Stukes refused to examine him even though the swelling had spread down his neck. Dr. Stukes ordered him to leave and stated that she was busy and would not examine him every time a nurse sent him to see her. Compl. ¶ 15; Affidavit ¶ 14.

  Curry was seen on January 23, 2001 by Dr. Kyee Maw, who prescribed Augmentin and Motrin. Compl. ¶ 16. He again saw Dr. Maw on February 7, 2001 after this medication had run out. Id. ¶¶ 17-18. Dr. Maw called Dr. Stukes into the room and explained that because the antibiotic should have reduced the swelling completely but it had not, Curry needed to be seen by an oral specialist. Id. ¶ 18. On February 13, 2001, Curry was seen by an oral specialist who believed that Curry's ...


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