The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Robert Green, appearing pro se, commenced this
action under 42 U.S.C. § 1983. Plaintiff, an inmate in the
custody of the New York State Department of Correctional Services
("DOCS"), has sued Dr. Krishnaswamy, who at all relevant times
was employed by DOCS as a dentist at the Attica Correctional
Facility. Plaintiff alleges that defendant violated his rights
under the Eighth Amendment to the United States Constitution in
connection with defendant's treatment of plaintiff in 1998. Both
sides have moved for summary judgment.
It is difficult to discern from the complaint exactly what the
factual basis for plaintiff's claim is, but it appears to relate
to defendant's filling of some of plaintiff's teeth. Plaintiff
alleges that defendant "committed a (Medical Dental) malpractice-negligence,
by the placing of `[M]etal-filings,' [sic] partially over on,
plaintiff-petitioner's, (Oral dental cavity teeths. [sic])."
Complaint, "Supplemental Page" at 1 (internal parentheses and
first brackets in original). Plaintiff also states in his motion
papers that "the fillings were improperly installed on the nerve
endings of teeths [sic] were bleeding," causing him pain.
Plaintiff's Motion for Summary Judgment (Docket #22) at 4.
I. Eighth Amendment Claims: General Standards
To show that prison medical treatment was so inadequate as to
amount to "cruel or unusual punishment" prohibited by the Eighth
Amendment, plaintiff must prove that defendants' actions or
omissions amounted to "deliberate indifference to a serious
medical need." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The
Second Circuit has stated that a medical need is "serious" for
constitutional purposes if it presents "`a condition of urgency'
that may result in `degeneration' or `extreme pain.'" Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied,
513 U.S. 1154 (1995)). See also Harrison v. Barkley, 219 F.3d 132,
136-137 (2d Cir. 2000) ("A serious medical condition exists where
`the failure to treat a prisoner's condition could result in
further significant injury or the unnecessary and wanton
infliction of pain'") (quoting Chance, 143 F.3d at 702).
Among the relevant factors for determining whether a serious
medical need exists are "[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that
significantly affects an individual's daily activities; or the
existence of chronic and substantial pain." Chance, 143 F.3d at
702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th
Cir. 1992), overruled on other grounds, WMX Tech., Inc. v.
Miller, 104 F.3d 1133 (1997)). At the same time, however, "[a]n
assertion of pain sensation alone, unaccompanied by any large
medical complications, does not amount to a serious medical need
under the Eighth Amendment." Livingston v. Goord, 225 F. Supp.2d 321,
329 (W.D.N.Y. 2002) (quoting Inciarte v. Spears, No. 97
Civ. 3155, 1998 U.S.Dist. LEXIS 5731, *11 (S.D.N.Y. Apr. 20,
1998)) (collecting cases); see, e.g., Zentmyer v. Kendall
County, Ill., 220 F.3d 805, 810 (7th Cir. 2000) ("Failure to
`dispense bromides for the sniffles or minor aches and pains or a
tiny scratch or a mild headache or minor fatigue the sorts of
ailments for which many people who are not in prison do not seek
medical attention does not . . . violate the Constitution")
(quoting Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.
As to the "deliberate indifference" component, the Supreme
Court explained in Wilson v. Seiter, 501 U.S. 294, 298-99
(1991), that this standard includes both an objective and a
subjective prong. With respect to the objective aspect, the court
must ask whether there has been a sufficiently serious
deprivation of the prisoner's constitutional rights. With respect
to the subjective component, the court must consider whether the
deprivation was brought about by defendants in wanton disregard
of those rights. Id. To establish deliberate indifference,
therefore, plaintiff must prove that the defendants had a
culpable state of mind and intended wantonly to inflict pain.
See Wilson, 501 U.S. at 299; DesRosiers v. Moran,
949 F.2d 15, 19 (1st Cir. 1991); Ross v. Kelly, 784 F. Supp. 35, 44
(W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied,
506 U.S. 1040 (1992). The Court in Estelle also cautioned that mere negligence is
not actionable. "A [prisoner's] complaint that a physician has
been negligent in diagnosing or treating a medical condition does
not state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner." Estelle,
429 U.S. at 106. Rather, the plaintiff must allege conduct that
is "repugnant to the conscience of mankind," id. at 102, or
"incompatible with the evolving standards of decency that mark
the progress of a maturing society," id. at 105-06. It is
clear, then, that allegations of malpractice alone do not state a
constitutional claim. Id. at 106 n. 14; Chance, 143 F.3d at
703-04; Ross, 784 F. Supp. at 44.
Likewise, an inmate's "mere disagreement over the proper
treatment does not create a constitutional claim. So long as the
treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
Amendment violation." Chance, 143 F.3d at 703; see also
Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) ("The
courts will not intervene upon allegations of mere negligence,
mistake or difference of opinion").
II. Application to this Case
Applying these principles to the case at bar, it is clear that
plaintiff has not made out a claim under the Eighth Amendment,
and that the complaint must be dismissed. Even viewing the record
in the light most favorable to plaintiff, the most that could be
found here is that defendant was negligent in his treatment of
plaintiff, or that plaintiff disagreed or was dissatisfied with
the treatment that he received. As stated, that is not enough. In support of his motion, defendant has submitted a declaration
of William Dawson, D.D.S., who was also a dentist at Attica, and
treated plaintiff, around the time in question. He states that
the care given to plaintiff by Dr. Krishnaswamy was appropriate.
Plaintiff has offered no evidence to the contrary, aside from his
own conclusory assertions that his rights were violated.
I also note that defendant's papers state that plaintiff
contends that defendant should have given him the option of using
plastic tooth-colored fillings instead of metal amalgam, and
that, when the fillings that defendant inserted fell out,
defendant, rather than Dr. Dawson, should have treated plaintiff.
It is not apparent from the record where, if anywhere, plaintiff
makes those allegations, but to the extent that they form the
basis for his claim, I find them meritless as well, since neither
implicates plaintiff's serious medical needs, much less
deliberate indifference to such needs. See United States ex rel.
Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970) ("The prisoner's
right is to medical care not the type or scope of medical care
which he personally desires"); Alston v. Howard, 925 F. Supp. 1034,
1040 (S.D.N.Y. 1996) ("Although a prisoner is entitled to
medical care, he does not have the right to the treatment of his
There is, then, no evidence that defendant deliberately ignored
plaintiff's serious medical needs, in order wantonly to inflict
pain on him. See Wilson, 501 U.S. at 299. Even in the
complaint, plaintiff characterizes defendant's actions as
"malpractice-negligence." I conclude, therefore, that plaintiff
has not presented enough evidence to give rise to a genuine issue
of fact concerning either the objective or subjective component
of the Eighth Amendment standard. There is simply no evidence
upon which a rational factfinder could conclude either that there
was a ...