United States District Court, S.D. New York
November 14, 2005.
EARL LEWIS Plaintiff,
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
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.
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,
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
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 met,
Griffin investigated the claims, and determined that McGraw's
treatment of Lewis reflected an appropriate exercise of his
medical judgment. (Griffin Decl. ¶¶ 9-10, 12).
B. The July 2001 Incident
The second incident Lewis complains of began approximately
eight months later on July 9, 2001 when Lewis sent a
memorandum to McGraw stating that he was suffering from another
gum infection, that he feared a sickle cell crisis, that Dr.
Pierce had treated similar infections by prescribing Clindamycin,
and that time was of the essence. (Dental Rec. at 149). McGraw
scheduled Lewis for an examination for two days later. (Defs.'
56.1 Statement ¶ 46; Dental Rec. at 125, 150). Lewis, however,
was on outside medical trips between July 10 and July 18 and was unable to keep the appointment. (Defs.' 56.1
Statement ¶¶ 46-47, 56; History and Record of Plaintiff's
Grievance Number MO-7524-01 ("Grievance MO-7524-01"), Ex. H to
Harben Decl.). The next week July 20 through July 25 Dr.
McGraw was on vacation, and thus did not examine Lewis again
until July 27. (Defs.' 56.1 Statement ¶ 56; Dental Rec. at 125,
Lewis claims that he again suffered a sickle cell crisis on
July 13, 2001. (Defs.' 56.1 Statement ¶ 53; Medical Records of
Earl Lewis ("Med. Rec."), Ex. D to Harben Decl.). On July 17
Lewis sent an additional memorandum to the dental department, but
he made no mention of the alleged crisis. (Defs.' 56.1 Statement
¶ 52; Dental Rec., at 151). A note dated July 13 in Lewis's
medical records reflects that during a visit to the medical
facility he had complained of a sickle cell crisis, but there is
no indication of any treatment being prescribed. (Defs.' 56.1
Statement ¶ 53; Med. Rec., at 162). On July 27 Lewis was examined
by McGraw and x-rays were taken that revealed certain dental
problems. (Defs.' 56.1 Statement ¶ 49; Dental Rec., at 125, 127).
McGraw informed Lewis of the results of the x-rays and
recommended extraction of a decayed tooth. (Dental Rec., at 125).
Lewis refused the extraction, but again requested a prescription
for antibiotics. (Id., at 125, 127). McGraw denied that
request, finding no indication of infection. (Id.; McGraw Decl.
¶¶ 10-11; Griffin Decl. ¶¶ 7-10).
Following this second incident, Lewis again filed a grievance
asserting that Dr. McGraw had deliberately delayed in responding
to his complaint of a gum infection, possibly in retaliation for
his earlier complaint.*fn1 (Defs.' 56.1 Statement ¶ 62;
Grievance MO-7524-01, at 243-45). The IGRC conducted an
investigation and its members unanimously recommended that due to
Lewis's underlying medical condition, he should be seen by a
dentist "within a reasonable amount of time." (Grievance
MO-7524-01, at 243). The superintendent reviewed that recommendation, and determined that Lewis had been seen "at the
earliest opportunity." (Id.). Lewis appealed the
superintendent's conclusion to CORC, asserting that when a sickle
cell crisis is threatened, preventative measures should be taken,
and he should have been seen more timely. (Id. at 243-44).
Lewis requested that in the future he not be required to wait
three to four weeks to be seen. (Id. at 240). CORC reviewed the
request, noted that emergency dental requests are routinely
evaluated within 24 hours or the next business day, and referred
the matter to Dr. Griffin, the Regional Dental Director for
review of Lewis's dental records and "[a]ny action necessary."
(Id. at 240, 248). Dr. Griffin met with Lewis to discuss his
grievance, and found that Lewis had been on outside medical trips
"during the first 24 hours of the supposed emergency," and that
he refused treatment when he was seen on July 27. (Id. at 249).
Dr. Griffin concluded that McGraw had acted properly with respect
to treating Lewis. (Griffin Decl., at ¶¶ 9, 12).
Although the record is clear that McGraw refused Lewis's
requests for Clindamycin in November 2000 and July 2001, and that
there was a delay between his complaint of an infection on July
9, 2001 and his next examination on July 27, 2001, McGraw
disputes that his refusal to prescribe the requested antibiotics
on either occasion departed from medically appropriate procedures
or that any delay exhibited deliberate indifference to Lewis's
medical or dental needs. McGraw had, in fact, prescribed
Clindamycin to Lewis on various occasions, both prior to and
after the incidents in question, when McGraw had observed signs
of infection. (Defs.' 56.1 Statement ¶ 21; Dental Rec., at 123,
In May 2000 prior to the first alleged incident Lewis
underwent oral surgery at a separate facility and McGraw
conducted a post-operative examination, reviewed Lewis's dental
chart, and noted that his medical history included sickle cell
anemia. (Defs.' 56.1 Statement ¶ 21; Dental Rec., at 123). McGraw diagnosed Lewis at that time
with some inflammation and bleeding of his gums and had
prescribed Clindamycin. (Id.). Similarly, when, on September
13, 2001 after the second alleged incident Lewis sought
dental care for pain he was experiencing in his jaw, McGraw found
an infection and had again prescribed Clindamycin. (Id., at
127, 153). Lewis does not allege any inadequacy or indifference
in McGraw's examinations or treatments on those occasions.
The claims against Griffin, who provided no direct treatment to
Lewis, are based solely on his supervisory role as the Regional
Medical Director for the region and his allegedly inadequate
responses to Lewis's grievances. (Lewis Depo., at 84-87; Compl.
¶¶ 34-36). As noted, in response to each grievance, the CORC
directed that Lewis's concerns be heard by Dr. Griffin, the
Regional Dental Director, who investigated each complaint and
concluded that Dr. McGraw had provided appropriate treatment in
November 2000 and July 2001. (See Grievance MO-7524-01, at 249;
Griffin Decl. ¶¶ 8-10, 12).
A. The Summary Judgment Standard
Summary judgment will be granted only when the moving party
demonstrates that "there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c); Allen v. Coughlin,
64 F.3d 77, 79 (2d Cir. 1995). To survive a summary judgment motion, the
non-moving party must "make a showing sufficient to establish the
existence of an element essential to the party's case, and on
which that party will bear the burden of proof at trial."
Celotex v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986); "[A] party opposing a properly supported
motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986) (internal quotation omitted); Fed.R.Civ.P. 56(e).
In deciding the motion, the court "`must view the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.'" American Cas. Co. of
Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.
1994) (quoting Consarc Corp. v. Marine Midland Bank, N.A.,
996 F.2d 568, 572 (2d Cir. 1993)). Where a party is proceeding pro
se a Court must read the pro se litigant's supporting
papers liberally and interpret them "`to raise the strongest
arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). The application of this liberal standard does
not, however, "relieve plaintiff of his duty to meet the
requirements necessary to defeat a motion for summary judgment."
Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)
(internal quotation omitted). In this instance, because Lewis
failed to respond at all to defendants' motion following explicit
notice by the Court as well as by defendants, the Court accepts
as true the factual assertions set forth in defendants' Local
Civil Rule 56.1 Statement of Undisputed Facts.
Defendants assert several bases for dismissal on summary
judgment, including that: (1) Lewis has failed to raise any
genuine issue of material fact on his claims of deliberate
indifference; (2) Lewis failed to exhaust his administrative
remedies before bringing his claims against Griffin; (3)
defendants are entitled to qualified immunity; and (4) the
Eleventh Amendment to the U.S. Constitution bars any claim that
Lewis might assert for money damages against defendants in their
Defendants are correct insofar as they contend that any claim
for money damages against defendants in their official capacities
is barred by the Eleventh Amendment. See Davis v. New York, 316 F.3d 93, 101-02 (2d Cir. 2002) (citing Kentucky v.
Graham, 473 U.S. 159, 169, 105 S. Ct. 3099, 87 L. Ed. 2d 114
(1985)). As is not uncommon, Lewis, a pro se plaintiff, has
not specified whether he is suing defendants in their official or
individual capacities. Because Lewis seeks only money damages,
the Court assumes he sues defendants in their individual
capacities, a claim not barred by the Eleventh Amendment. See
Davis, 316 F.3d at 101-02; Oliver Schools, Inc. v. Foley,
930 F.2d 248, 252 (2d Cir. 1991). The claims against defendants in
their individual capacities fail because Lewis has not adduced
evidence to create any genuine issue of material fact supporting
his claim that defendants violated his Eighth Amendment rights as
set forth below. Accordingly, the Court need not consider whether
defendants would have enjoyed qualified immunity had a violation
As recounted above, Lewis submitted grievances complaining
about McGraw's treatment, and appealed the denials of those
grievances, but as defendants note, Lewis did not submit any
grievances complaining of Griffin's actions. Defendants seek
dismissal of the claims against Griffin and McGraw on the ground
that Lewis failed to exhaust the grievance process for his claims
against Griffin, who reviewed each grievance at the direction of
CORC. Because the Court finds that Lewis's claims fail on their
merits, it does not address whether or not he exhausted his
administrative remedies prior to bringing suit. See Richardson
v. Goord, 347 F.3d 431, 433 (2d Cir. 2003) ("failure to exhaust
administrative remedies is not a jurisdictional predicate").
B. The Eighth Amendment Deliberate Indifference Standard
In order for a claim of inadequate medical care to reach the
level of an Eighth Amendment violation, a prisoner must prove
"deliberate indifference to [his] serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251,
97 S. Ct. 285 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). The deliberate
indifference standard consists of both an objective and a
subjective component. Chance, 143 F.3d at 702. To meet the
objective component, a plaintiff must establish that the alleged
deprivation is "sufficiently serious," Wilson v. Seiter,
501 U.S. 294, 297-303, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991), and
for the subjective component, a plaintiff must show that a
defendant acted with a "`sufficiently culpable state of mind.'"
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994) (quoting Wilson, 501 U.S. at 297). Deliberate
indifference exists only when a prison official "knows of and
disregards an excessive risk to inmate health or safety; the
official must be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw the inference." Farmer, 511 U.S. at 837.
The "sufficiently serious" requirement "`contemplates a
condition of urgency, one that may produce death, degeneration,
or extreme pain.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994) (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.
1990)). The Eighth Amendment also forbids "less serious denials"
of medical treatment "which cause or perpetuate pain." Brock v.
Wright, 315 F.3d 158, 163 (2d Cir. 2003) (quoting Todaro v.
Ward, 565 F.2d 48, 52 (2d Cir. 1977)). The U.S. Court of Appeals
for the Second Circuit has identified several factors that are
"highly relevant" to the inquiry into the seriousness of a
medical condition: "the 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 (2d Cir.
1998) (citation omitted). "[D]ental conditions (like other
medical conditions) vary in severity and  a decision to leave a
condition untreated will be constitutional or not depending on
the facts of the particular case." Harrison v. Barkley,
219 F.3d 132, 136-37 (2d Cir. 2000). A prisoner does not state a violation of the Eighth Amendment
with every claim that he has not received adequate medical
treatment. Estelle, 429 U.S. at 105. Merely negligent treatment
or a claim based on legitimate differences of opinion over
matters of medical judgment are insufficient to state an
Eighth Amendment claim. Estelle, 429 U.S. at 105-06. Rather, to
establish deliberate indifference, Lewis must demonstrate that
defendants acted with "`a conscious disregard of a substantial
risk of serious harm.'" Hernandez v. Keane, 341 F.3d 137, 144
(2d Cir. 2003), cert. denied, 125 S. Ct. 971,
160 L. Ed. 2d 905 (2005), (quoting Chance, 143 F.3d at 703).
Lewis alleges that McGraw improperly denied medical treatment
in November 2000, and failed to provide adequate and timely
medical attention in July 2001, and that Griffin failed to take
corrective action following Lewis's complaints. Defendants
contend they are entitled to summary judgment on all claims
because Lewis has failed to come forward with evidence to meet
either the objective or subjective component of the deliberate
indifference standard in regard to either alleged incidence of
inadequate treatment. The Court agrees.
A. Serious Medical Condition
It is undisputed that Lewis suffers from sickle cell anemia,
and the Court accepts that sickle cell anemia and the type of
crises that Lewis describes those involving a risk of organ
deterioration and failure may be the type of serious medical
condition toward which deliberate indifference could constitute a
constitutional violation. However, as defendants note, Lewis, by
his own admission, did not suffer from a crisis during the
relevant period that was more than "medium" or that caused any
significant interruption in his daily activities. (Defs.' 56.1 Statement ¶¶ 38-41, 61; Lewis Depo., at 71, 68, 47-49, 51-52,
69-73). While Lewis alleges that he experienced pain during each
of the relevant alleged sickle cell crises, the pain neither
prevented him from continuing to work as a porter nor did it
interfere with any other daily activity. (Defs.' 56.1 Statement.
¶ 8; Lewis Depo., at 47-49, 51-52, 69-73). There is no evidence
suggesting that Lewis suffered any deterioration of his organs
from the two alleged crises. The "assertion of pain sensation
alone, unaccompanied by any large medical complications, does not
amount to a serious medical need under the Eighth Amendment."
See Inciarte v. Spears, No. 97 Civ. 3155, 1998 WL 190279, at
*3 (S.D.N.Y. Apr. 20, 1998). Moreover, the record provides no
evidence to substantiate his disagreement with McGraw's recorded
diagnoses that he did not in fact suffer from the gum infections
in November 2000 or July 2001 that he contends triggered the
sickle cell crises. (McGraw Decl. at ¶¶ 10-12; Dental Rec. at
In sum, Lewis has failed to present any competent evidence to
support a finding that he suffered from the kind of serious
medical condition that is a predicate to establishing a violation
of his Eighth Amendment rights.
B. Deliberate Indifference
Lewis has also failed to adduce any evidence whatsoever that
the defendants acted with the requisite subjective deliberate
indifference. Specifically, the record contains no evidence to
support a finding that either Dr. McGraw or Dr. Griffin knew of
and disregarded "an excessive risk" to Lewis's health or that
either defendant failed to prescribe an appropriate course of
treatment. See Farmer, 511 U.S. at 837. Importantly, the
record includes no evidence supporting a finding that either
McGraw or Griffin knew that a failure to prescribe antibiotics
immediately upon request from Lewis on November 13, 2000 or July
9, 2001 would result in a sickle cell crisis, but nonetheless
refused to prescribe necessary treatment for Lewis's alleged infections. First, as noted above, Lewis has come forward with no
competent evidence to refute McGraw's diagnosis that Lewis was
not even suffering from a gum infection in either November 2000
or July 2001. Even accepting Lewis's assertion that a gum
infection could trigger a sickle cell crisis, Lewis has not
demonstrated that McGraw deliberately ignored that risk by
refusing to prescribe a course of treatment not indicated by his
own examination of Lewis. (See McGraw Decl. ¶¶ 9-11, 13; Dental
Rec., at 124-25, 127). Evidence establishing that Dr. Pierce had
previously prescribed antibiotics provides no basis for
determining that McGraw acted inappropriately, much less
recklessly, in refusing to prescribe antibiotics when no
infection was apparent.
The evidence showing that McGraw had prescribed Clindamycin on
other occasions both prior to and following the dates relevant
to the complaint belies any allegation that McGraw deliberately
denied that treatment on the dates in question. (Defs.' 56.1
Statement ¶¶ 26-28, 43; Dental Rec. at 123-25). When McGraw saw
no infection, he declined to prescribe antibiotics. (Dental Rec.
at 124). In fact, McGraw explains that "[e]xcessive use of
antibiotics, particularly where there is no infection to treat,
could diminish the drug's effectiveness for when there actually
is an infection." (McGraw Decl. ¶ 11; see also Griffin Decl.
¶ 10). This type of decision regarding choice of treatment is
"purely an issue of medical judgment . . . [which] is precisely
the sort of issue that cannot form the basis of a deliberate
indifference claim." Hernandez, 341 F.3d at 146-147; Chance,
143 F.3d at 703
Neither does the delay between Lewis's complaint of another
infection on July 9, 2001, and his next examination on July 27,
2001, reflect any deliberate indifference by defendants. The
record demonstrates that that delay was due to circumstances
outside McGraw's control and gives no indication that McGraw
acted deliberately, or even negligently. Lewis sent his memorandum to McGraw on July 9, 2001, and McGraw scheduled him
for an appointment on July 11, 2001; although circumstances made
that appointment impossible to keep, McGraw examined Lewis on the
next available date on which both Lewis and McGraw were at the
facility. (Defs.' 56.1 Statement ¶ 46; Dental Rec. at 125, 149).
This is not a case where defendants refused to treat an
observed condition, failed to provide prescribed treatment, or
unreasonably delayed in responding to Lewis's complaints. See
Hernandez, 341 F.3d at 146-47. Rather, this is a case where
Lewis, without supporting medical evidence, diagnosed himself
with an infection and believed a certain treatment was necessary.
Lewis has offered no evidence, however, that McGraw's refusal to
prescribe antibiotics in the absence of an infection deviated
from reasonable medical practice, much less that McGraw was aware
that his treatment of Lewis was medically inadequate and he
deliberately ignored a serious risk to Lewis's health. Id.
Just as the record demonstrates that McGraw did not act with
deliberate indifference, there is no evidence supporting Lewis's
claims that Griffin deliberately ignored any inadequacies in
McGraw's responses or was indifferent to his complaints. Griffin
reviewed the grievances, but found that McGraw properly exercised
his medical judgment and neither intentionally nor negligently
delayed providing appropriate treatment. (Griffin Decl. ¶¶ 8-11).
Griffin's responses to those grievances evince no failure to
remedy a wrong or failure to act on information indicating
unconstitutional acts were occurring that could give rise to
liability on his part. See Hernandez, 341 F.3d at 145.
Because no reasonable jury could find that Lewis suffered from
a sufficiently serious condition or that defendants acted with
deliberate indifference either in November 2000 or July 2001, his claims fail as a matter of law. Accordingly,
defendants' motion for summary judgment is granted and the Clerk
of Court is directed to enter judgment in defendants' favor.
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