The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court
This matter is before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment (Filing No. 18), and plaintiff's response (Filing No. 21). Having carefully reviewed the motion and response, the briefs of the parties, the evidentiary submissions and the applicable law, the Court will grant defendants' motion.
The Court must decide a motion to dismiss under Rule 12(b)(6), accepting all allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 89-90 (2d Cir. 2004). In order to avoid dismissal, a plaintiff must do more than plead mere "conclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000). The point at which "conclusory allegations" become valid pleadings lies where the plaintiff has asserted sufficient facts that, when construed liberally, allow the inference of a violation. See, e.g., Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001). The Court must not dismiss, however, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). This principle is to be applied "with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). "In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Discount Bank, 199 F.3d 99, 107 (2d Cir. 1999)(quoting Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). The Court considers the defendants' motion in light of the foregoing standard.
B. Summary Judgment Standard
Summary judgment "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."
Fed. R. Civ. P. 56(c). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)(quoting Anderson, 477 U.S. at 248). On a motion for summary judgment, all reasonable factual inferences must be drawn in favor of the non-moving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003)(citing Anderson, 477 U.S. at 255). However, to survive a motion for summary judgment, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(emphasis omitted)(quoting Fed. R. Civ. P. 56(e))(citation omitted). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)(citation omitted). Thus, "statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999)(citations omitted), cert. denied, 530 U.S. 1242 (2000). In addition, "the 'mere existence of a scintilla of evidence' supporting the non-movant's case is . . . insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Thus, a party "moving for summary judgment must prevail if the [non-movant] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)(citing Anderson, 477 U.S. at 247-48). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that the plaintiff is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment." Fitzpatrick v. New York Cornell Hosp., 2002 U.S. Dist. LEXIS 25166, 2003 WL 102853, at *5 (S.D.N.Y. Jan.9, 2003)(citing cases).
Plaintiff Nickoyan Wallace ("Wallace") brings this action, which he labels as a Bivens action, claiming a violation of his Eighth Amendment rights. He was a federal inmate at the Federal Correctional Facility at Ray Brook, New York ("FCI Ray Brook"), in 2004 when the events at issue occurred (Complaint, ¶ 1). On June 4, 2004, defendant D.D.S. B. Dawson ("Dawson") saw Wallace at a dental sick call (Complaint, ¶ 5). Dawson was employed by the Commissioned Corps of the United States Public Health Service ("PHS") (Dawson Declaration ("Dawson Dec."), ¶ 1). Dawson has been employed by PHS since March, 1995, and has been assigned as a Chief Dental Officer to the Federal Bureau of Prisons since September, 1997. Id. Dawson was the Chief Dental Officer at FCI Ray Brook at the relevant times. Id. at ¶ 2.
On June 4, 2004, Wallace sought to have a cavity filled in tooth #31-OB (Complaint, ¶ 5, Dawson Dec., ¶ 5). Dawson performed this procedure, filling the cavity (Complaint, ¶¶ 4-8). During the course of the procedure a small cut on the inside of Wallace's cheek (the buccal fat pad) occurred (Complaint, ¶ 6). In addition, an air embolism occurred in this same buccal fat pad, resulting in swelling (Complaint, ¶ 7). Dawson informed Wallace when this occurred and opined that it would resolve itself in one to two weeks and no harm would result (Complaint, ¶ 7). Dawson told Wallace that if he did experience any problems, he should report to the dental sick call the following Monday, June 7, 2004 (Filing No. 18-3, Ex. 2A ("Dental Records"), p. 3).
Wallace alleges that over the next three weeks he suffered excruciating pain on the right side of his face, difficulty in opening his mouth to brush his teeth and eat and constant swelling that never abated (Complaint, ¶ 9). However, he did not seek medical attention until Monday, June 21, 2004, when he reporter to dental sick call seeking treatment. He was advised that Dawson was booked up and could not see plaintiff until June 24, 2004 (Complaint, ¶ 10). Wallace was scheduled for an appointment with Dawson for June 24, 2004 (Complaint, ¶ 11).
On June 24, 2004, an institutional lockdown occurred which prevented Wallace from keeping his appointment (Complaint, ¶ 11). Wallace asserts that he asked an officer to inform the medical staff that he needed assistance (Complaint, ¶ 12). The officer relayed the information and informed Wallace a medical staff member would be up to see him ...