The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Robert O'Connor, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), commenced this action, with the assistance of counsel, pursuant to 42 U.S.C. § 1983. See Compl. [dkt. # 1]. Plaintiff asserts that Defendants Robert McArdle, Director of Dental Services for DOCS, and Mohammed Ahmed, a dentist employed by DOCS, violated his constitutional right under the Eighth Amendment when they denied him appropriate dental care. Id. Defendants have moved for summary judgment pursuant to FED. R. CIV. P. 56 contending that they were not deliberately indifferent to a serious medical need by Plaintiff.
Plaintiff is an inmate who is serving a lengthy sentence in the custody of DOCS. Prior to his incarceration, Plaintiff had a history of dental work, including having a root canal in tooth #8 and having a fixed anterior upper bridge spanning the 7-11 teeth. In addition, Plaintiff was missing his #9 tooth.
On November 6, 1992, while incarcerated at Eastern Correctional Facility, a DOCS facility dentist replaced a loose filling in Plaintiff's #7 tooth, and informed Plaintiff that the tooth was "badly decayed" and that the prognosis for the #7 tooth was poor. Although Plaintiff saw dental care providers between November 6, 1992 and February 22, 2000, Plaintiff did not seek or receive any treatment on his #7 tooth until this latter date.
Plaintiff was first incarcerated at Sullivan Correctional Facility ("Sullivan") from August 1994 until March 2002. On December 1, 1999, Sullivan dentist Kevin McGraw noted that Plaintiff's #8 tooth appeared "apical and radilucent." Plaintiff was unable to feel pain in his #8 tooth because of a root canal that had been performed prior to his incarceration. Dr. McGraw referred Plaintiff to an oral surgery clinic for evaluation and a possible apicoectomy.*fn1 Dr. McGraw again saw Plaintiff on January 26, 2000 and February 10, 2000 in relation to problems with Plaintiff's #15 tooth, and Plaintiff did not mention any problems with his #7 and # 8 teeth on either of these occasions.
On February 22, 2000, Dr. John Frattellone, an oral surgeon who was employed part time by DOCS, examined Plaintiff, diagnosed him with a possible "alveolar abscess" of Plaintiff's #7 and # 8 teeth, and advised him about potential methods of treatment, including an apicoectomy. Dr. Frattellone informed Plaintiff of the risks and benefits of such treatment and further advised that it could compromise his existing bridge.
Also on February 22, 2000, after meeting with Dr. Fratalone, Plaintiff wrote to defendant Dr. Robert McArdle, Director of Dental Services for DOCS, and stated in his letter that "[he] was advised that [his 7 tooth] was infected and decayed." He further wrote that "[w]ith his tooth gone, [he] will then have two teeth missing -- and [his] old bridge would be useless." Plaintiff further requested that he could replace the bridge at his own expense. On March 23, 2000 Plaintiff advised Dr. Fratalone that he desired to get the apicoectomy procedure, and on March 28, 2000 Dr. McArdle responded to Plaintiff's letter and indicated that a treatment plan would be presented to Plaintiff upon his upcoming visit with the oral surgeon.
Plaintiff did not the keep appointment with the oral surgeon scheduled for September 2000, and he contends that he was prevented from attending because he was confined to his cell. When Plaintiff returned to see Dr. Frattellone on October 19, 2000, he told Dr. Frattellone that he was "managing" the pain by gargling with saltwater--sometimes as much as twelve times a day--but that he no longer wished to have the apicoectomy procedure if it "carried the possibility of compromising [his] bridge." O'Connor Dep. 57:7-58:25. Dr. Frattellone also examined Plaintiff on this date and found that Plaintiff's gum around his #7 and # 8 teeth were "nontender," and that there was "no mobility to bridge/buckle expansion over [Plaintiff's # 7 and # 8 teeth]." Frattellone Dep. 47:3-12. Defendant Dr. Mohammed Ahmed, Sullivan's facility dentist, was also present while Dr. Frattellone examined Plaintiff. Dr. Ahmed discussed the pain Plaintiff had experienced and, although Plaintiff was not in pain at that time, told Plaintiff that he could perform a root canal on Plaintiff's #7 tooth to "ward off any future potential pain from this tooth." O'Connor Dep., Exh. B at pp. 3-4. On October 19, 2000, Plaintiff wrote to Dr. Ahmed and stated that he wished to proceed with the root canal.
On January 28, 2001, Plaintiff wrote to Dr. Ahmed and stated that on the previous day, his #7 tooth had "started giving [him] considerable pain." Plaintiff's Exh. 9. While Plaintiff was still able to eat despite his pain, it did interfere with his eating. O'Connor Dep. 132:17-20. Two days later, on January 30, 2001, Dr. Ahmed again examined Plaintiff, noted a chronic periapical pathology, and recommended that Plaintiff's #7 tooth be extracted. Dr. Ahmed offered to extract the tooth, replace it with a partial removable denture, and cut the crown from #7 so that the rest of the bridge would stay intact. Ahmed Dep., 59:21-60:9. Because Plaintiff did not want to lose his permanent fixed bridge, he refused the extraction and insisted that Dr. Ahmed perform a root canal on the tooth instead. Id. Although Dr. Ahmed believed the root canal would be unsuccessful, Ahmed Dep., 80:16-20, he agreed to perform the root canal and apicoectomy anyway. On his follow-up appointment on February 7, 2001, Dr. Ahmed again expressed his reservations to Plaintiff about the root canal and apicoectomy procedure, but Plaintiff persisted. On February 14, 2001, Dr. Ahmed began the root canal treatment on Plaintiff's #7 tooth and completed the procedure on February 22, 2001.
Plaintiff submitted a grievance to Sullivan's Inmate Grievance Resolution Committee on February 26, 2001, in which he wrote:
[t]he dental department at Sullivan diagnosed an abscessed and decayed top incisor of mine in 1998. It was thereafter negligent. I was repeatedly advised that since the tooth referred to is under a crown that is part of a permanent bridge that spans five teeth in the front of my mouth, it would be best to leave it alone as long as it was not giving me pain. The pain became unbearable on January 27, 2001. Thereafter, I was advised by the dental department that even with the root canal treatment that I was now offered and have had performed, that there was a poor prognosis for the success of this tooth -- as well as the other teeth under the bridge. Further, I was advised by the dental department that the tooth referred to has been placed in even more jeopardy because it will be more at risk for decay considering that part of the crown was drilled away to perform the root canal and the tooth will not be sufficiently enclosed. The Health Services Policy Manual, Policy 2.0 Dental Policy, states that the "scope of Services" includes fixed prostheses (bridges)" (p. 5 of 19). It is hard to imagine a more compelling case where a replacement bridge would be more appropriate.
Plaintiff requested that DOCS provide him with a replacement bridge to replace his existing permanent fixed bridge. Plaintiff had filed this grievance after Dr. Ahmed had performed a root canal on Plaintiff's #7 tooth but before Dr. Fratalone had completed the apicoectomy on his #7 and # 8 teeth and therefore, at that point, it was impossible to tell whether the efforts undertaken by the two doctors would ultimately save his #7 and # 8 teeth.
On March 1, 2001, Dr. Frattellone conducted the apicoectomy on Plaintiff and obtained what he considered a "good result." Frattellone Dep., 54:14-55:5. On March 12, 2001, the Sullivan facility Superintendent denied Plaintiff's grievance and wrote: "[t]he Sullivan Correctional Facility Dentist states the [Plaintiff's] dental needs are being addressed, in accordance with the New York State Health Service Policy Manual 2.0 -- sick call procedure." Plaintiff then appealed the Superintendent's decision to DOCS's Central Office Review Committee ("CORC"), which in April 18, 2001, unanimously rejected Plaintiff's February 26, 2001 grievance and denied Plaintiff's request for a replacement bridge. In CORC's decision, they noted that:
[Plaintiff] has been examined by Regional Dental Director and was advised that the procedure performed by the oral surgeon could not be determined to be successful until more time had passed. [Plaintiff] is advised that if the dentist determines in the future that the bridge needs to be replaced, that the grievant must request this service through an outside provider at his expense.
In fact, Plaintiff had met with DOCS's Regional Dental Directors Dr. William Griffin and Dr. Martin Korfman on April 5, 2001, who explained to Plaintiff that it was too early to determine whether Plaintiff would need to replace his bridge because the apicoectomy procedure had been performed only recently.
On June 11, 2001, Plaintiff submitted a second grievance, in which he again requested that he be provided with a new permanent fixed bridge to replace the one he had when he first entered DOCS' custody. Ultimately, this grievance was also denied, and the Superintendent wrote in the denial that although there is a risk that Plaintiff could lose his #7 tooth, it has been treated, and the bridge was then intact and operable. The Superintendent further advised that if the Plaintiff were to lose ...