The opinion of the court was delivered by: Deborah A. Batts, United States District Judge
Plaintiff Zayd Rashid brings this pro se action against Defendants Kevin McGraw ("McGraw"), Robert McArdle ("McArdle") and William Griffin ("Griffin") (collectively "Defendants"). Plaintiff asserts two claims against Defendants based on inadequate dental treatment he received while he was incarcerated at Sullivan Correctional Facility. Plaintiff's first claim is based on 42 U.S.C. § 1983 ("§ 1983"); his second claim sounds in negligence under New York State law.
Defendants in this action are licensed dentists, employed by the New York State Department of Correctional Facilities ("DOCS"). Defendants are being sued in both their individual and official capacities.
Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56. They seek dismissal of the claims against them on the grounds that: (1) the claims are procedurally barred by the applicable statute of limitations and because Plaintiff failed to exhaust administrative remedies; (2) Plaintiff's constitutional claim fails to establish infliction of cruel and unusual punishment in violation of the Eighth Amendment; (3) negligence is not a cognizable claim under § 1983; (4) Defendants cannot be sued for negligence; and (5) Defendants are protected from liability pursuant to the doctrine of qualified immunity.
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.
During the period relevant to this civil action, Plaintiff was incarcerated at various New York State correctional facilities. At the time he initiated this action, Plaintiff was at Attica Correctional Facility. Plaintiff is currently an inmate at Otisville Correctional Facility. The dental treatment at issue in this action occurred while Plaintiff was at Sullivan Correctional Facility in Fallsburg, New York. (Compl. ¶ 2.)
Defendant McGraw is a dentist employed by the New York State Department of Correctional Services. He was previously placed at Sullivan Correctional Facility.*fn1 Defendant Griffin is employed by DOCS as a regional dental coordinator. Defendant McArdle is the State Dental Director for DOCS with offices in Albany, New York. (Id. ¶¶ 3-5.)
Plaintiff has suffered from periodontal disease since the mid-1980's. (Id. ¶ 13.) Periodontitis, like gingivitis, is a serious infection of the gum area, that, if left untreated, can lead to tooth loss.*fn2 As the disease progresses, gums separate from the teeth, forming pockets (spaces between the teeth and gums) that become infected. Pockets deepen as the disease progresses and more gum tissue and bone are destroyed.
Plaintiff initially had problems with his upper teeth, and repeatedly sought treatment for his upper teeth from various dentists in DOCS, not including any of the Defendants in this action. By 1994, Plaintiff had lost all of his upper teeth. (Id. ¶¶ 14-18.)
Plaintiff filed a dental malpractice suit in the New York Court of Claims in 1994 with respect to the denial of proper care for his upper teeth. According to Plaintiff, this claim resulted in a favorable verdict. (Id. ¶ 19.) On May 9, 1995, Plaintiff filed a federal claim alleging deliberate indifference by the dentists who had been responsible for the care of his upper teeth. (Id. ¶ 20.)
Approximately one month later, Plaintiff, while at Sullivan Correctional Facility, began experiencing symptoms of pain, soreness and bleeding in his lower teeth and sought treatment from Defendant McGraw. (Id. ¶ 21.) Previously, Plaintiff had been seen by two dentists, Dr. Katz and Dr. Hussain. In 1992, Dr. Katz recommended that problems with Plaintiff's lower teeth should be addressed. (Rashid Aff. at Ex. A.) In 1993, Dr. Hussein recommended a full mouth curettage.*fn3 (Id. at Ex. B.)
Plaintiff requested treatment from the facility for the pain in his lower teeth. The Parties agree that Plaintiff was treated by Defendant McGraw in 1994 and 1995. The Parties also agree that Plaintiff was seen by a hygienist four times in 1996, and had nine dental visits with either Defendant McGraw or the hygienist in 1997, including one where upper wisdom teeth were removed. Defendant Griffin examined Plaintiff in December, 1997 and found that there was no basis for an appointment with a periodontist. Plaintiff then had five dental visits with the hygienist in 1998, including a visit when seven periapical x-rays were taken of Plaintiff's lower mouth. In the following year, 1999, Defendant had four dental visits, three with a hygienist and one with Dr. Magidson. In all these visits, except the final one with Dr. Magidson, Plaintiff was given cleanings and scalings (removal of plaque with a sharp instrument), and x-rays were also taken. (Defs.' 56.1 Statement ¶¶ 16(g)-(h); Pl.'s 56.1 Statement ¶¶ 16(g)-(h).)
According to Plaintiff, the visit with Dr. Magidson was only arranged at the insistence of Plaintiff before he considered any settlement with the defendants in the federal action filed in 1995. (Pl.'s 56.1 Statement ¶ 26.) Dr. Magidson recommended surgery. (Compl. ¶ 61.) At some point in 2000, Defendant was transferred from Sullivan Correctional Facility to Woodbourne Correctional Facility. After he was transferred, Plaintiff underwent three periodontal surgeries. (Id. ¶ 62.)
Plaintiff filed a grievance on February 9, 2001, while at Lakeview Correctional Facility, regarding DOCS' deliberate indifference to the care and treatment of his lower teeth dating back to 1994. (Adlerstein Aff. at Ex. F.) According to Plaintiff, this grievance was fully exhausted by him on April 8, 2001, when the Central Office Review Committee ruled that compensatory damages were not available through the grievance process and that Plaintiff's dental needs were being properly addressed. (Compl. ¶¶ 9-12.)
Subsequently, Plaintiff filed this action against Defendants in both their individual and official capacities, alleging a violation of his Eighth and Fourteenth Amendment rights, as well as a state law negligence claim. Plaintiff seeks $500,000.00 in compensatory damages and $75,000.00 in punitive damages.
Defendants move for summary judgment, seeking dismissal of all claims against them. Defendants argue that the Plaintiff's § 1983 claim is time-barred by the applicable statute of limitations, and that Plaintiff failed to exhaust administrative remedies prior to bringing his claim. Defendants alternatively argue that dismissal is warranted because Plaintiff has failed to allege a deprivation of his Eighth Amendment right against cruel and unusual punishment. Defendants also argue that the § 1983 claim cannot be asserted against them because they are shielded by qualified immunity. With regard to the state law negligence claim, Defendants argue that they cannot be sued for negligence in their individual or official capacities.
Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986); Corselli v. Couglin, 842 F.2d 23, 25 (2d Cir. 1988).
Under Fed. R. Civ. P. 56(c), "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has interpreted this to mean that, "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As a general rule, "the court is to draw all factual inferences in favor of the party against whom summary judgment is sought, viewing the factual assertions . . . in the light most favorable to the party opposing the motion". Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995); see also Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). All ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "[v]iewing the evidence produced in the light most favorable to the non-movant, if a rational trier could not find for the non-movant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991).
B. Exhaustion of Remedies
Defendants argue that Plaintiff's claims should be dismissed for failure to exhaust because he brought his grievance after the remediation (treatment of his lower teeth) had taken place. "In short, plaintiff did not pursue the avenue prescribed by law, which would have given defendants the opportunity to remediate, until after the remediation took place." (Defs.' Mem. Law at 22.) Defendants do not contest that the grievance brought by Plaintiff was fully exhausted in the sense that all administrative steps required by Plaintiff, technically, were taken.
The grievance that Plaintiff filed requested that "the deliberate indifference to [his] dental needs cease immediately. All recommendations of the periodontist be followed through immediately. That [he] be compensated for [his] injuries." (Adlerstein Aff. at Ex. F.) Plaintiff's grievance was denied. He then appealed the denial and the Inmate Grievance Program Central Office Review Committee "advised that the grievance process is not the proper avenue to address ...