The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Plaintiff, a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), is suing pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights by denying him appropriate dental care. Now before the Court is Plaintiff's application for a temporary restraining order [#32]. For the reasons that follow, the application is denied.
On August 11, 2008, Plaintiff filed an application for preliminary injunctive relief [#3], requesting that he be provided with dental care. Specifically, Plaintiff alleged that he needed a root canal on one tooth and fillings in three others. Plaintiff further alleged that three nurses, Angela Gorg ("Gorg"), Jill Jilson ("Jilson"), and Diane Weed ("Weed"), and a dentist, Dr. Raymond Haag ("Haag"), denied him all dental treatment for fourteen months. Plaintiff requested an order directing Defendants to "provide a fixed or removable prosthetic device commonly known as a bridge or denture to the Plaintiff to replace the Plaintiff's missing tooth and to provide three fill[ings] to fill in the Plaintiff's three cavities and to provide root canal work on the Plaintiff's front tooth." (Proposed Order).
When Plaintiff filed the application for injunctive relief, Defendants had not been served with the summons and complaint, or with the application for injunctive relief. Nevertheless, the Court forwarded the application for injunctive relief to the local office of the New York State Attorney General, and requested that it investigate Plaintiff's claim. On November 8, 2008, the Attorney General submitted a response (Docket No. [#6]), indicating that, between July 28, 2008 and October 17, 2008, Plaintiff had received dental treatment on seven occasions. The response also indicated that Plaintiff was scheduled for another dental appointment during the second week of November 2008, and that following that appointment, "there w[ould] be no outstanding requests by Mr. Smith for any further dental work." The Attorney General maintained that the application for injunctive relief was, therefore, moot.
On December 10, 2008, the Court mailed Plaintiff a copy of the Attorney General's letter. Subsequently, the Court ordered Plaintiff to file and serve a sworn reply, "addressing the specific claims in the Attorney General's submission, and stating whether he in fact has received the dental care that he was requesting in his application for injunctive relief." (Order [#18]).
On February 13, 2009, Plaintiff filed a reply [#20]. However, Plaintiff did not directly address the Claims in Defendant's response. Instead, he leveled new allegations against Dr. Haag and Christy Alchimowicz ("Alchimowicz"), a dental assistant, concerning events that allegedly occurred in January and February of 2009. More specifically, Plaintiff alleged that Haag had denied him a partial denture, purportedly because Plaintiff did not meet DOCS guidelines concerning the same. Plaintiff contended, however, that Haag told him he could receive the partial denture at a cost of $190. Plaintiff also contended that he had "not received a root canal in three years." Finally, Plaintiff alleged that in February 2009, he was placed on a waiting list to receive a dental cleaning, but had not received the cleaning.
On April 14, 2009, the Court issued a Decision and Order (Docket No. [#31]), denying preliminary injunctive relief. The Court found that Plaintiff's claims were almost entirely moot, since Plaintiff had received dental care. As for Plaintiff's request for a root canal and partial denture, the Court found that Plaintiff had not established that the former was medically necessary, or that he was entitled to the latter under DOCS's regulations.
One week later, on April 23, 2009, Plaintiff filed the subject application for injunctive relief (Docket No. [#32]). Specifically, Plaintiff seeks an "emergency order" directing Haag and Alchimowicz to provide him with "two (2) partial dentures to replace his two (2) missing teeth free of charge." (Plaintiff's Motion [#32] at 1). In support of the application, Plaintiff maintains that Haag, Alchimowicz, and others are basically responsible for him losing his two teeth, since they delayed providing him with fillings for cavities. Plaintiff states that Haag and Alchimowicz told him that he did not qualify for dentures under DOCS's guidelines, but that he could pay for the dentures himself. Plaintiff alleges that he will suffer irreparable harm if he is not provided with partial dentures, since the two missing teeth have left parts of his gums exposed, which causes pain and bleeding when he eats.
In response, Defendants maintain that Plaintiff has not shown that he will suffer irreparable harm if his application is denied, or that he is likely to succeed on the merits of his underlying action. Defendants' counsel states that on May 20, 2009, he deposed Plaintiff, at which time, Plaintiff was jovial and relaxed and participated freely in the two hour deposition. There was no visible evidence that his gums were bleeding or that he was in need of any immediate dental care. Plaintiff demonstrated at the deposition that he has eight contiguous teeth across the front upper part of his mouth. On either side of these eight contiguous teeth, is a missing tooth; one on the right upper and one on the left upper part of his mouth. These missing teeth are not visible unless the plaintiff smiles or pulls back his cheeks with his fingers to reveal the missing teeth. . . . With eight contiguous teeth across the front upper, the plaintiff does not meet DOCS guidelines for free dentures. (Kidera Affidavit [#40] ¶ ¶ 5-6).
On May 28, 2009, Plaintiff filed reply papers, in which he states that, during his deposition, Defendants' counsel offered to provide him with dentures in exchange for settling the lawsuit. Plaintiff states that he declined the offer. However, Plaintiff reasons that the settlement offer is proof that he is likely to succeed on the merits of his case. (Reply Brief [#42] at ¶ 3). Plaintiff also maintains that he is entitled to receive the dentures pursuant to DOCS's Health Services Policy 2.01 section c(2)(l), which, he contends, provides for dentures fo missing "maxillary or mandibular anterior teeth." Id. at p. 6. According to Plaintiff, he meets this requirement, since he has "two (2) maxillary anterior teeth missing . . . . . Tooth #5 and tooth #13 . . . are maxillary teeth." Id. Plaintiff does not dispute Defendants' counsel's description of the location of his missing teeth.
On June 15, 2009, Defendants filed a sur-reply (Docket No. [#48]), in which they reiterate that Plaintiff does not qualify for dentures, since his ...