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