The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
MEMORANDUM DECISION AND ORDER
In this civil rights complaint, plaintiff, an inmate in the custody of the New York Department of Correctional Services ("DOCS"), alleges that Dr. Edward Marra, a dentist employed by DOCS, was negligent when he extracted plaintiff's tooth #15. Complaint (Compl.)(Dkt. No. 1). Plaintiff alleges that during the extraction, defendant negligently cut a piece of plaintiff's upper left jawbone creating an "oral-antrum communication" into plaintiff's palate. (Compl. ¶¶ 15, 17). Plaintiff also alleges that, on two occasions subsequent to the initial extraction, defendant Marra was unsuccessful in attempting to close the opening resulting from the extraction of tooth #15. (Compl. ¶¶ 19, 22). Plaintiff's first, second and fourth causes of action allege negligence by defendant in extracting the tooth, and allege that the defendant failed to follow DOCS procedures. (Compl. ¶¶ 41, 43). Plaintiff's first and third causes of action allege deliberate indifference by defendant to plaintiff's serious dental needs. (Compl. ¶¶ 40, 42).
Presently before the court*fn1 is defendant's motion for summary judgment, pursuant to FED.R.CIV.P. 56. (Dkt. No. 48). Plaintiff has not filed any opposition to defendant's motion, despite an extension of time to do so. (Dkt. No. 52, 53). For the following reasons, this court will grant defendant's motion in part and deny defendant' s motion in part without prejudice to renew.
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R.CIV.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden , the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of the "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-movant bears the burden of proof at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the non-movant's claims or (2) identifying those portions of the non-movant's evidence that demonstrate the absence of a genuine issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006)(citing Celotex Corp., 477 U.S. at 323). The second method requires identifying evidentiary insufficiency, not merely denying the opponent's pleadings. Id.
The Local Rules of the Northern District of New York provide that a motion for summary judgment shall include a Statement of Material Facts, "containing each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established." LOCAL RULES NDNY 7.1(a)(3). The "record" for purposes of the Statement of Material Facts includes the "pleadings, depositions, answers to interrogatories, admissions, and affidavits." Id. The Second Circuit has held, however, that in determining whether the moving party has met his burden, the court may not rely solely on the statement of undisputed facts, it must be satisfied that the citation to evidence in the record supports the assertion. Vermont Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004). If the moving party fails to meet its burden, the court must deny summary judgment even if the opposing party does not present any opposing evidentiary matter. Id. (citation omitted).
However, if the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Additionally, while a court "'is not required to consider what the parties fail to point out,'" the court may in its discretion opt to conduct "an assiduous view of the record" even where a party fails to respond to the moving party's statement of material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)(citations omitted).
Plaintiff's allegations in this case cover the period when he was incarcerated at Great Meadow Correctional Facility ("GMCF") between 2001 and 2006. Plaintiff's complaint concerns Dr. Marra's extraction of plaintiff's maxillary molar (tooth #15) on December 24, 2004 and defendant Marra's subsequent attempt to repair a small opening in plaintiff's upper palate. (Compl. ¶¶ 15, 19, 28, 31).Plaintiff states in his complaint that on November 27, 2004, he was examined by Dr. Marra because his tooth #15 and the surrounding area was irritated and plaintiff had ". . . gum line erosion, pain and bleeding . . . ."(Compl. ¶ 12). Plaintiff alleges that not only was the extraction negligently performed, resulting in the small opening through his palate into his sinus cavity, but that all the follow-up procedures by Dr. Marra and other medical personnel were negligently performed. (Compl. ¶¶ 21-24).
In support of his motion for summary judgment, defendant Marra has submitted his affidavit. (Mara Aff.) In his affidavit, Dr. Marra states that plaintiff had a history of chronic periodontal infections which causes pain, swelling and the destruction of surrounding supporting structures. (Marra Aff. ¶ 5)(Dkt. No. 48- 4). Dr. Marra states that plaintiff's "periodontally compromised tooth # 15 resulted from ". . . a lack of appropriate oral concern throughout his life, as is reflected by the condition of his mouth." Marra Aff. ¶ 5. Dr. Marra specifically states that plaintiff had a history of infection and pain from tooth #15 since March 18, 1999, and he was treated by "three different dentists . . . for periodontal abscesses" on seven different occasions between 1999 and December of 2004. (Marra Aff. ¶¶ 4, 5).
Plaintiff alleges that Dr. Marra did not follow DOCS procedures regarding the December 24th tooth extraction because he did not send plaintiff to an "outside specialist." Plaintiff claims that defendant Marra negligently performed the actual extraction which resulted in a perforation to plaintiff's sinus. (Compl. ¶¶ 13-18). Dr. Marra states that the December 24th extraction of plaintiff's second maxillary molar was performed to eliminate "further infection and pain which the patient had been experiencing since March 18, 1999." (Marra Aff. ¶ 4).
Dr. Marra's affidavit states that plaintiff's anatomical characteristics include bilaterally enlarged maxillary sinuses. Because of these characteristics, the roots of plaintiff's maxillary molars are "engulfed" by his sinuses. (Mara Aff. ¶ 6). Dr. Marra states that this condition is not rare, and sometimes results in the creation of an oral-antral communication when extracting teeth. Id. Dr. Marra notes that plaintiff agreed to have tooth #15 extracted, and that the tooth needed to be extracted because of plaintiff's history of chronic periodontal infections, regardless of plaintiff's anatomical make-up. (Mara Aff. ¶ 7). Dr. Marra states that proper surgical procedures, post-operative instructions and medications were given to the plaintiff. Id. He further alleges that the "resulting ...