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James Brown v. Dds Manesh Mewar

February 14, 2011

JAMES BROWN,
PLAINTIFF,
v.
DDS MANESH MEWAR, AND D.A. NANCY TAPP, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER REPORT and RECOMMENDATION

JURISDICTION

This case was referred to the undersigned by Honorable William M. Skretny on May 6, 2010 for all pre-trial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Plaintiff's motion to join parties (Doc. No. 28), filed April 9, 2010, and on Defendant's motion for summary judgment (Doc. No. 30), filed April 29, 2010.*fn1

BACKGROUND

Plaintiff James Brown ("Plaintiff"), proceeding pro se, commenced this civil rights action on August 22, 2007, while incarcerated at Elmira Correctional Facility ("Elmira") or "the correctional facility"), alleging that Defendants Manesh Mewar, DDS ("Dr. Mewar" or "Defendant")), and dental assistant Nancy Tapp ("Tapp"), denied Plaintiff dental care in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiff specifically alleges that Defendants' failure, between December 17, 2003, and February 11, 2005, to place Plaintiff on a call-out list to have an abscessed tooth pulled caused Plaintiff pain and suffering, and rendered Plaintiff unable to eat. On April 10, 2008, Defendant filed an answer (Doc. No. 5) ("Answer").

On April 7, 2009, Plaintiff moved to amend the complaint ("First Motion to Amend"), seeking to terminate Tapp as a Defendant, and to add one John Gibson, DDS ("Dr. Gibson"), as a Defendant. By order filed May 14, 2009 (Doc. No. 11), the undersigned granted the motion to amend as to the request to terminate Tapp as a defendant, but, given that Plaintiff withdrew the request to add Dr. Gibson as a defendant, denied the request at to Dr. Gibson. On August 6, 2009, Plaintiff again moved to amend the complaint ("Second Motion to Amend"), seeking to add as defendants Elmira Superintendent Calvin West ("West"), Dr. Gibson, and all Elmira dental department employees. By Decision and Order filed March 17, 2010 (Doc. No. 25) ("March 17, 2010 D&O"), the undersigned, given that the claims Plaintiff sought to assert against the proposed defendants were time-barred, and Plaintiff had failed to establish that such claims against the proposed defendants would relate back to the date of the original complaint, denied Plaintiff's request to add defendants without prejudice and with leave to renew the motion should Plaintiff ascertain that the failure to name Dr. Gibson, West, and any Elmira dental department employee as a defendant in the original Complaint was based on a mistake, rather than on a lack of knowledge as to the identities of such parties. March 17, 2010 D&O at 9. As such, to date, Dr. Mewar is the sole defendant in this action.

On April 9, 2010, Plaintiff filed a new motion (Doc. No. 28) ("Plaintiff's motion"), seeking to add as defendants Dr. Gibson, West, and "all employees that was [sic] employed at Elmira Correctional Facility dental Dept. From December 17, 2003 until February 11, 2005." Plaintiff's motion is supported by the attached Memorandum of Law in Support of Plaintiff's Motion for Joinder of Other Parties to Plaintiff's Complaint Pursuant to Federal Rules Civil Procedure Rule 20(1)(A)(B) 28 U.S.C.A. ("Plaintiff's Memorandum").

On April 29, 2010, Defendant filed Defendant's Motion for Summary Judgment (Doc. No. 30) ("Defendant's motion"), along with supporting papers, including the Declaration of Manesh Mewar, DDS, in Support of Defendant's Motion for Summary Judgment (Doc. No. 31) ("Defendant's Declaration"), attached to which are exhibits A and B ("Defendant's Exh(s). __"), the Statement of Undisputed Facts in Support of Defendant's Motion for Summary Judgment (Doc. No. 32) ("Defendant's Statement of Facts"), and the Memorandum of Law in Support of Defendant's Motion for Summary Judgment (Doc. No. 33) ("Defendant's Memorandum").

On May 3, 2010, Defendant filed the Memorandum of Law in Opposition to Plaintiff's Motion to Amend Complaint (Doc. No. 34) ("Defendant's Response"). In further support of Plaintiff's motion, Plaintiff filed on May 13, 2010, the Response to Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Amend Complaint (Doc. No. 38) ("Plaintiff's Reply"). On June 4, 2010, Plaintiff filed the Memorandum of Law in Support of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 39) ("Plaintiff's Response"), attached to which are exhibits A through J ("Plaintiff's Exh(s). __"). In further support of summary judgment, Defendant filed on June 25, 2010, the Reply Declaration of Michael A. Siragusa in Support of Defendant's Motion for Summary Judgment (Doc. No. 40) ("Siragusa Reply Declaration"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's motion for leave to add defendants (Doc. No. 28) is DENIED; Defendant's motion for summary judgment (Doc. No. 30), should be DENIED.

FACTS*fn2

This action concerns attempts by Plaintiff James Brown ("Plaintiff" or "Brown")), for more than two years, to obtain dental treatment for an abscessed tooth while housed at two different state correctional facilities. On February 23, 2003, while incarcerated at Great Meadow Correctional Facility ("Great Meadow"), Plaintiff filed an Inmate Grievance ("Great Meadow Grievance"), complaining he had been denied dental treatment since August 10, 2002, for an abscessed tooth on the left side of his mouth. Plaintiff, in his Great Meadow Grievance, does not identify the dental staff employee who failed to provide treatment at Great Meadow. Plaintiff did not receive any treatment for the abscessed tooth while incarcerated at Great Meadow. In November 2003, without having received any dental treatment as a result of the Great Meadow Grievance, Plaintiff was transferred to Elmira Correctional Facility ("Elmira" or "the correctional facility").

On December 17, 2003, Defendant Manesh Mewar, DDS ("Dr. Mewar"), a dentist then employed by New York State Department of Correctional Services ("DOCS"), was assigned to Elmira, examined Plaintiff, inserting a partial upper denture into Plaintiff's mouth. Although Plaintiff maintains that after Dr. Mewar inserted the denture, Plaintiff complained about his abscessed upper back tooth, according to Dr. Mewar, Plaintiff stated only that he was satisfied with Dr. Mewar's dental work and that Dr. Mewar advised Plaintiff's next dental appointment would be made at Plaintiff's request. Dr. Mewar Declaration ¶ 7 and Plaintiff's Dental Records*fn3 dated December 17, 2003 (Dr. Mewar's treatment remarks: "Inserted P/. Pt is satisfied. NA at pt request").

In a letter to Elmira Superintendent West, dated February 10, 2004, Plaintiff complains that despite being advised by Dr. Mewar in December 2003 that Plaintiff would be placed on Elmira's dental call-out list for extraction of Plaintiff's abscessed tooth, for which Plaintiff's gum was so swollen that he was unable to eat or to close his mouth, Plaintiff had yet to be scheduled for the necessary dental treatment. Plaintiff's Exh. D. On October 6 and 12, 2004, Plaintiff submitted to the Elmira dental department, written letters advising that despite numerous requests to the dental department, for which Plaintiff was repeatedly advised by someone from the dental office that Plaintiff's name had been put on the dental call-out list for treatment, Plaintiff had yet to receive treatment for an abscessed tooth, for which Plaintiff's gum was so swollen that Plaintiff was unable to close his mouth, and was so painful that Plaintiff could not eat, and Plaintiff had to squeeze blood and pus from the gum to obtain some relief by lessening the swelling and pain. Plaintiff's Exhs. B (dated October 6, 2004, bearing date stamp indicating its receipt on October 7, 2004), and C (dated October 12, 2004, bearing date stamp indicating its receipt on October 13, 2004). In his October 12, 2004 letter, Plaintiff also threatened to file an inmate grievance against Elmira's dental department based on the continued failure to arrange for treatment of Plaintiff's abscessed tooth. Plaintiff's Exh. C. Nevertheless, Plaintiff did not file any inmate grievance at that time.

On October 14, 2004, Dr. Mewar was assigned to Five Points Correctional Facility ("Five Points"), and, at that time, no longer assigned to Elmira. As such, Dr. Mewar neither responded to Plaintiff's letters, nor provided any dental care to inmates at Elmira after October 14, 2004. Plaintiff maintains he was unaware that Dr. Mewar left Elmira on October 14, 2004. Plaintiff's Response at 4.

The next entry in Plaintiff's Dental Records is dated February 4, 2005, and indicates that Dental Assistant Nancy Tapp ("D.A. Tapp") was making arrangements for Plaintiff to be escorted for a dental screening. Plaintiff's Dental Records at 3. On February 9, 2005, Plaintiff filed an Inmate Grievance ("Elmira Grievance")*fn4 asserting that despite repeatedly requesting, since December 2004, to see the dentist, Plaintiff had not been placed on the call-out list. Plaintiff continued that he had a toothache and an abscess, could not eat, was in pain, and could not sleep. Id.

Later on February 9, 2005, after filing the Elmira Grievance, Plaintiff was placed on Elmira's dental call-out list and examined by Dr. Gibson who remarked Plaintiff complained of an upper molar being swollen and partially dislodged, but asymptomatic after taking antibiotics "on his own." Plaintiff's Dental Records at 3. According to Dr. Gibson, Plaintiff had no alveolar bone left to secure the tooth. Id. Plaintiff agreed with Dr. Gibson's recommendation that the tooth be extracted at Plaintiff's next appointment. Id. According to the record, when Plaintiff was examined by Dr. Gibson on February 9, 2005, Plaintiff had already filed the Elmira Grievance. Plaintiff's Memorandum at 2-3; Plaintiff's Response at 5. Plaintiff, in opposition to summary judgment, asserts that Dr. Gibson, rather than extracting Plaintiff's abscessed tooth on February 9, 2005, sent plaintiff back to his cell to suffer in pain for two more days before calling plaintiff back to the dentist office to pull the tooth. This is a practice of the dental dept. and Dr. Gibson did this because I had complained about not receiving dental treatment.

Plaintiff's Response at 5.

Plaintiff further maintains that after being sent back to his cell on February 9, 2005, he had to treat his abscessed tooth by "squeez[ing] pus and blood out of the gum in order to get the swollen [sic] to go down" and by taking medication and antibiotics prescribed for other inmates "over a four year period when relief was readily available in the dental office." Id.

On February 10, 2005, Dr. Gibson responded to the Elmira Grievance ("Elmira Grievance Repsonse")*fn5 by stating that he had examined Plaintiff the previous day, February 9, 2005, and had scheduled Plaintiff to return on February 11, 2005, to have his tooth extracted. Elmira Grievance Response. Dr. Gibson further stated that Plaintiff "has dropped 5 slips to our office all with different dates however 2 were received on 1/31/05 and 3 were received on 2/8/05, in one envelope." Id. In each of the five dental call-out request slips received by the Elmira dental office,*fn6 Plaintiff complains of a toothache with bleeding gums. The dental call-out requests are dated December 9, 2004, December 15, 2004, January 10, 2005, January 21, 2005, and February 8, 2005. The two earliest dental call-out requests bear date stamps indicating their receipt in Elmira's dental office on January 31, 2005, and the latter three dental call-out requests bear date stamps indicating their receipt on February 8, 2005.

On February 11, 2005, Dr. Gibson extracted Plaintiff's abscessed tooth.*fn7

Plaintiff's Dental Records at 3. Dr. Gibson noted that Plaintiff's next appointment would be at Plaintiff's request. Id.

Plaintiff's Medical Records*fn8 for the relevant time period -- December 17, 2003 through February 11, 2005 -- establish that Plaintiff received medical treatment on at least 37 occasions, mostly for chronic back pain. Absent from Plaintiff's Medical Records is any indication the Plaintiff made any complaints about a toothache. Further, absent from Plaintiff's dental records is any reference to any dental worked performed at Great Meadow, despite the fact that it was at Great Meadow where Plaintiff was fitted for the partial upper denture which Dr. Mewar inserted on December 17, 2003 at Elmira. Brown, 2008 WL 4283367, at * 1.

DISCUSSION

1. Permissive Joinder

Moving pursuant to Fed.R.Civ.P. 20(a) ("Rule 20(a)"), Plaintiff seeks to add as Defendants Elmira Superintendent Calvin West ("West"), John Gibson, DDS ("Dr. Gibson"), all Elmira dental department employees from December 17, 2003 until February 11, 2005 ("the proposed defendants"). Plaintiff's Memorandum at 2. In opposition, Defendant argues that Plaintiff's motion should be denied as futile because the claims Plaintiff seeks to assert against the proposed defendants are time-barred, Defendant's Memorandum at 3-4, and are not subject to the "relation back" doctrine.

Id. at 5-10. In further support of his motion, Plaintiff asserts that the claims he seeks to assert against the proposed defendants would relate back to the date of the filing of the original complaint, Plaintiff's Reply at 2-3, and Plaintiff's original complaint was timely filed. Id. at 3-5. The following discussion demonstrates Plaintiff's motion is futile and is therefofe DENIED.

As relevant, Rule 20(a) provides that persons may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law ...


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