The opinion of the court was delivered by: Thomas J. McAvoy, Sr. U.S. District Judge
In this civil rights complaint, Plaintiff, an inmate in the custody of the New York Department of Correctional Services ("DOCS"), claims that Defendant, Dr. Edward Marra violated his Eighth Amendment rights by providing inadequate dental care. Plaintiff also raises a state negligence claim arising from the same treatment. By Memorandum Decision and Order dated March 7, 2009, the Court dismissed the negligence and state law claims. Presently before the Court is Defendant's motion for summary judgment, pursuant to Fed. R. Civ. P. 56., seeking dismissal of the remaining claims.
Plaintiff was an inmate at Great Meadow Correctional Facility ("GMCF") between 2001 and 2006. Plaintiff's Complaint concerns Defendant's extraction of Plaintiff's maxillary molar (tooth #15) on December 24, 2004 and the subsequent attempt to repair a small opening in Plaintiff's upper palate. (Compl. ¶¶ 15, 19, 28, 31). Plaintiff claims that, on November 27, 2004, he was examined by Defendant because his tooth #15 and the surrounding area was irritated and Plaintiff had "gum line erosion, pain and bleeding." Compl. at ¶ 12.
In support of his motion for summary judgment, Defendant submitted an affidavit supported by 92 pages of medical record. In his affidavit, Defendant states that (1) he extracted Louis Avincola's tooth #15, a fully erupted second maxillary molar to eliminate further infection and pain that the patient had been experiencing since March 18, 1999 (Marra Aff. ¶ 4); (2) Plaintiff had a history of chronic periodontal infections which causes pain, swelling and the destruction of surrounding supporting structures (Marra Aff. ¶ 5); and (3) 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). Defendant 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).
Defendant maintains that on January 7, 2005, he recommended a minor surgical procedure to attempt to close the oral-antral communication. Plaintiff agreed to the procedure. (Marra Aff. ¶ 7). The procedure was performed on the same day. Defendant states that the procedure was successful in decreasing the size of the communication, but did not eliminate it. (Marra Aff. ¶ 8). Defendant states that this was revealed in the follow-up appointments of January 10 and January 14, 2005. Id. Defendant performed a second surgery on January 21, 2005, and saw Plaintiff again on January 24, 28, February 4, 9, 11, 16, 23, 25, and March 2, 2005. The surgeries and healing reduced the size of the oral-antral communication to 1 mm x 1 mm. Id. Dr. Marra states that although the small opening may have closed by itself, he decided to obtain a second opinion by an oral surgeon. Id. On March 8, 2005, Plaintiff was transferred to Coxsackie Correctional Facility to be evaluated by an oral surgeon, Dr. Kaskel. (Marra Aff. ¶ 9).
Plaintiff's first and third causes of action allege deliberate indifference to his dental needs. (Compl. ¶¶ 40, 42). Plaintiff alleges that Defendant demonstrated deliberate indifference because the extraction and the follow-up procedures were negligently performed. Plaintiff further claims that the surgery did not reduce the size of the cavity. (Compl. ¶¶ 21-24; Reply ¶ 15). Plaintiff submitted the affidavit of Dr. Howard J. Kirschner, DDS in opposition to this motion for summary judgment. Dr. Kirschner states "[i]t is my opinion, with reasonable dental certainty and probability, that Dr. Marra did negligently treat this patient, resulting in injury to this patient." (Kirschner Aff. page 9).
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); See Fed. R. Civ. P. 56(c). 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).
Plaintiff claims that Defendant acted with deliberate indifference to his dental needs. The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. CONST. amend. VIII. "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met ." West v. Atkins, 487 U.S. 42, 54 (1988) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). "In light of this, the [Supreme] Court held that the State has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated." West, 487 U.S. at 54. This prohibition extends to the provision of medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
To establish an Eighth Amendment violation, a prisoner must prove that the Defendant acted with deliberate indifference to serious medical need. Estelle, 429 U.S. at 104; Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). The test for an Eighth Amendment claim is twofold. First, the prisoner must show that the condition to which he was exposed was sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). "Because society does not expect that prisoners will have unqualified access to healthcare, a prisoner must first make [a] threshold showing of serious illness or injury" to state a cognizable claim. Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Second, Plaintiff must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Farmer v. Brennan, 511 U.S. ...