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