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LEWIS v. DR. McGRAW

November 14, 2005.

EARL LEWIS Plaintiff,
v.
DR. MCGRAW, Mid-Orange Correctional Facility; DR. GRIFFIN, Albany, NY Defendants.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION AND ORDER

Pro se plaintiff Earl Lewis, a former inmate at the Mid-Orange Correctional Facility ("Mid-Orange"), brings this action pursuant to 42 U.S.C. § 1983 against two dentists — defendants Kevin McGraw, D.M.D., Facility Director at Mid-Orange, and Michael Griffin, D.D.S., the former Regional Medical Director for the New York State Department of Correctional Services for the region covering Mid-Orange — alleging that defendants acted with deliberate indifference to Lewis's medical needs by failing to provide prompt and adequate treatment for alleged gum infections that Lewis feared could trigger a crisis of his sickle cell anemia condition. Defendants now move for summary judgment in their favor on the ground that Lewis's claims of deliberate indifference lack merit. Because Lewis has failed to respond to defendants' motion with any evidence countering defendants' statement of undisputed facts, and because those facts establish that defendants are entitled to judgment as a matter of law, the motion is granted. I. Procedural History

Defendants have moved for summary judgment following the conclusion of discovery proceedings in this action. Pursuant to Local Rule 56.2 and McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999), the defendants' moving papers included a "Notice of Motion to Pro Se Plaintiff' explaining that Lewis's claims "may be dismissed without a trial" if he did not respond to defendants' motion. (Notice of Motion to Pro Se Plaintiff, at 1). Lewis did not respond, and out of an abundance of caution, the Court issued an order directing plaintiff to respond to defendants' motion by July 1, 2005. (See Order, dated May 31, 2005). In that Order, this Court expressly informed plaintiff that:
If plaintiff fails to respond to defendants' motion for summary judgment on or before July 1, 2005 with sworn affidavits or other documentary evidence contradicting the facts asserted by the defendants, the Court will accept the factual assertions included in defendants' Rule 56.1 Statement as true, and judgment may then be entered in defendants' favor without a trial.
(Order, dated May 31, 2005, at 2-3) (emphasis in original). Because Lewis failed to respond as directed — or at all — to defendants' motion for summary judgment or the Court's May 31, 2005 Order, the Court accepts the factual assertions in defendants' Local Civil Rule 56.1 Statement as true. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001).

  II. Factual Background

  During all times relevant to this action, plaintiff Earl Lewis was an inmate incarcerated at the Mid-Orange Correctional Facility. (Defs.' Local Civil Rule 56.1 Statement ¶¶ 1, 3, n. 1, ("Defs.' 56.1 Statement")). In May 2000, following the death of Dr. Stacey A. Pierce, defendant Kevin McGraw, D.M.D., became the Facility Director at Mid-Orange, and between 2000 and 2003, examined and treated Lewis for a variety of dental complaints. (Defs.' 56.1 Statement ¶ 19; Declaration of Dr. Kevin McGraw, dated April 6, 2005, at ¶¶ 3-4, ("McGraw Decl."); Deposition of Earl Lewis, at 50, ("Lewis Depo."), Ex. B to Declaration of Jeb Harben, dated April 6, 2005, ("Harben Decl.")). During the relevant period, defendant Michael Griffin, D.D.S. served as the Regional Medical Director for the New York State Department of Correctional Services in the region including Mid-Orange. (Defs.' 56.1 Statement ¶ 3; Declaration of Dr. William Griffin, dated April 6, 2005, at ¶¶ 2-4 ("Griffin Decl.")). In that position, Griffin was responsible for supervising the work of the facilities' dental providers, including Dr. McGraw. (Griffin Decl., at ¶ 4).

  Lewis claims that on two separate occasions — once in November 2000 and again in July 2001 — McGraw failed to treat purported gum infections promptly and adequately by failing to prescribe the antibiotic Clindamycin when requested, and that failure caused Lewis to suffer a "sickle cell crisis" on each occasion. (See Compl., at ¶¶ 13-19, 23-25). Lewis also charges McGraw with failing to review his medical records promptly in response to Lewis's complaints in November 2000 and with failing to respond promptly to his request for treatment in July 2001. (Id.). Lewis alleges that Dr. Griffin, who reviewed the grievances Lewis filed after each of these incidents, failed to direct McGraw to provide prompt and adequate treatment. (Id., at ¶¶ 34-36).

  It is undisputed that Lewis suffers from sickle cell anemia, and throughout his life has, on occasion, suffered what he refers to as "sickle cell crises." (Defs.' 56.1 Statement ¶ 4; Lewis Depo., at 18). During his deposition, Lewis explained that in a sickle cell crisis — which can last for several days — he experiences pain in his limbs and fatigue and that a crisis can lead to significant organ failure. (Lewis Depo., at 49, 52-53). The severity of pain he experiences varies with each crisis, ranging from "dull" to "excruciating." (Id., at 19, 23). Lewis believes that these crises can be triggered by various things, including infections and fatigue. (Id., at 22). During his deposition, Lewis chronicled several "major" sickle cell crises that he suffered prior to his incarceration at Mid-Orange, each of which required hospitalization, but he did not recall having experienced a crisis resulting from a dental infection. (Id., at 19, 23-28).

  While incarcerated at Mid-Orange, Lewis sought treatment periodically from Dr. Stacey A. Pierce, Dr. McGraw's predecessor. On two occasions, in January 1999 and November 1999, Dr. Pierce prescribed Lewis the antibiotic Clindamycin to treat potential gum infections. (Defs.' Rule 56.1 Statement ¶ 18; Dental Records of Earl Lewis, at 120, 122, ("Dental Rec."), Ex. C to Harben Decl.). Lewis believed the antibiotics to be necessary to stave off a potential sickle cell crisis. (Lewis Depo., at 22, 97). The crux of Lewis's claims here is that when McGraw replaced Dr. Pierce at the Mid-Orange facility, he failed to treat Lewis's complaints of infections with the urgency they were due, and twice improperly refused to prescribe the antibiotic Clindamycin, even though Lewis informed McGraw on each occasion that Dr. Pierce had treated infections in the past with Clindamycin, and Lewis's concern that if left untreated, the infections would trigger a sickle cell crisis.

  A. The November 2000 Incident

  On November 13, 2000, Lewis was seen by McGraw at the Mid-Orange dental clinic for the purpose of receiving two composite fillings. (Dental Rec., at 124). Following his treatment, Lewis complained of a gum infection and requested antibiotics. (Id.). He also sent McGraw a memorandum complaining of a gum infection, noting that he suffers from sickle cell anemia, and stating his belief that a sickle cell crisis could be triggered by infection. (Id. at 139). Lewis noted that in the past, Pierce had prescribed Clindamycin to combat gum infections, and that had corrected the problem. (Id.). McGraw responded to Lewis, explaining that he did not see an infection at that time, but that he was familiar with sickle cell anemia and would respond to the request for antibiotics after he had reviewed the medical records to determine "what was done and why." (McGraw Decl. ¶ 9; Dental Rec., at 124).

  Lewis claims that both the next day and the day after, he contacted the dental clinic to inquire whether McGraw had reviewed his records, and was told that McGraw had not; then, on November 16 — three days after he requested the antibiotics — Lewis experienced a sickle cell crisis that affected his arms and legs and threatened to cause deterioration of his internal organs. (Lewis Depo. at 69-70). Lewis received Tylenol from the Mid-Orange medical facility, but stated that he still suffered from pain throughout the night for approximately four days. (Id., at 70-72). Lewis did not, however, complain to anyone at the dental clinic that he was suffering from a sickle cell crisis. (Defs.' 56.1 Statement ¶ 36; Dental Rec., at 135, 139, 141, 142, 144, 147). During the four days Lewis claims to have suffered the crisis, he continued working at his prison job as a porter, and was not admitted to the infirmary; there is no evidence that Lewis suffered any injury whatsoever as a result of the crisis. (Defs.' 56.1 Statement ¶ 66; Lewis Depo., at 71-72, 96).

  Lewis was next examined by Dr. McGraw on November 20 when he returned to the dental clinic to have more work done on his fillings. (Defs.' 56.1 Statement ¶ 32; Dental Rec. at 124). Lewis once again requested Clindamycin, but McGraw explained that antibiotics were not indicated because he saw no evidence of infection. (Defs.' 56.1 Statement ¶¶ 33-35; Dental Rec., at 124). McGraw made the following notations in Lewis's dental chart: November 13: "I do not see an infection"; and November 20: "Advise patient I do not see any infection, no bleeding and prescribing an antibiotic is not yet indicated." (Dental Rec., at 124).

  One week later — on November 27 — Lewis filed a grievance complaining that he had suffered a sickle cell crisis as a result of McGraw's failure to review his dental records in a timely manner and to prescribe antibiotics. (Certification of Plaintiff's Grievances ("Grievance Hist."), Ex. E to Harben Decl.; History and Record of Plaintiff's Grievance Number MO-7373-00 ("Grievance MO-7373-00"), Ex. F to Harben Decl.). In the grievance, Lewis requested that in the future he be provided appropriate medication, that an investigation be conducted as to why McGraw denied him the antibiotic, and that he be compensated for pain and suffering. (See Grievance MO-7373-00, at 219-20).

  The grievance was reviewed by four members of the Inmate Grievance Review Committee ("IGRC"); two members recommended that an investigation be conducted, and that Lewis "be issued an antibiotic when and as needed"; the other two members found that McGraw had acted appropriately. (See id. at 219). Henry Garvin, the Superintendent of Mid-Orange, upheld the latter determination and denied the grievance. (Id. at 219, 221). Lewis appealed to the Central Office Review Committee ("CORC"), which agreed that McGraw had acted appropriately but directed that Lewis "be scheduled to meet with . . . [Griffin] to discuss his concerns." (Id. at 216, 226). Lewis and Dr. Griffin ...


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