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Andre Smith v. Doctor Raymond Haag

November 29, 2011


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Plaintiff, a prison inmate previously*fn1 in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), is suing pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights by denying him appropriate dental and medical care and by retaliating against him. Now before the Court is Plaintiff's motion for partial summary judgment [#54] and Defendants' cross-motion for partial summary judgment [#69]. For the reasons that follow, Plaintiff's motion is denied and Defendants' cross-motion is granted in part and denied in part.


On August 11, 2008, Plaintiff commenced this action. Plaintiff's Complaint [#1] makes the following allegations. Prior to April 2, 2007, Plaintiff was housed at Auburn Correctional Facility ("Auburn"), where he was scheduled to receive fillings for cavities in four of his teeth. Apparently due to a disciplinary infraction, Plaintiff was sentenced to serve time in the Special Housing Unit ("SHU") at Southport Correctional Facility ("Southport"). Consequently, Plaintiff was transferred out of Auburn before receiving the dental fillings. Between April 2, 2007 and May 10, 2007, Plaintiff was housed at Attica Correctional Facility ("Attica"), apparently while en route to Southport.

On May, 11, 2007, Plaintiff arrived at Southport. At all relevant times, the defendants were employed at Southport, as follows: Dr. Raymond Haag ("Haag") was employed as a facility dentist; Christy Alchimowicz ("Alchimowicz") was employed as a dental assistant; Lisa Hayth ("Hayth") was employed as a dental hygienist; Heman Fowler ("Fowler") and Jill Northrop ("Northrop") were employed as nurse practitioners; Catherine Felker ("Felker") was employed as a nurse administrator; and Diana Weed ("Weed"), Angela Gorg ("Gorg") and Jill Jilson ("Jilson") were employed as nurses.

During medical screening conducted upon his arrival at Southport, Plaintiff told Weed that he had pain in four teeth, which needed fillings. Plaintiff further told Weed that he had previously been scheduled to receive such fillings at Auburn prior to his transfer to Southport. Plaintiff asked Weed to place him on the list to see the dentist. Plaintiff indicates that the following day, May 12, 2007, he reminded Weed that he needed to see the dentist. Complaint [#38] ¶ 38.

Plaintiff indicates that between May 11, 2007 and July 27, 2008, he wrote approximately fifteen letters to the Southport Dental Department, requesting that he receive fillings for his four cavities. Plaintiff did not receive any dental treatment until July 2008, more than a year after he arrived at Southport. During that period, Plaintiff experienced pain and lost two of his teeth to decay. Because Haag, Alchimowicz and Hayth did not provide him treatment, Plaintiff seeks to hold them liable for violating his Eighth Amendment rights. Complaint [#1] ¶ 18.

In addition to writing letters to the dental department, Plaintiff made numerous requests for dental treatment to Southport's medical staff. On March 31, 2008 and April 28, 2008, Plaintiff asked Jilson to make an appointment for him to see Haag. However, Plaintiff alleges that Jilson told him that she was placing him on the bottom of the waiting list, because the facility could not afford his dental treatment, and because Plaintiff was "Public Enemy Number One" at Southport. On July 22, 2008 and July 24, 2008, Plaintiff alleges that Jilson told him that she was refusing to give him hydrocortison cream he had requested, because he had filed grievances against her.

Plaintiff also asked Gorg to make an appointment for him to see Haag on many occasions, specifically: April 11, 2008, April 18, 2008, May 14, 2008, May 16, 2008, June 30, 2008, and July 7, 2008. However, Plaintiff maintains that Gorg told him that she was placing him on "the bottom of the list" to see Haag, to punish Plaintiff for filing lawsuits against Southport staff. Plaintiff further states that on July 11, 2008, Gorg threatened to have corrections officers harm him, in response to his filing of a grievance against her. In addition, Plaintiff contends that on several occasions in May 2008 and July 2008, he asked Gorg to provide him with ointment for dry skin, but she refused his requests. On July 14, 2008, Plaintiff states that he asked Gorg for hydrocortisone cream for a skin rash, and she responded that she would not give him any medical care, in order to teach him not to file grievances against her. On July 15, 2008 and July 16, 2008, Plaintiff contends that Gorg ignored him while making her rounds, even though he had signed up for sick call. Complaint [#1] at ¶ 53.*fn2 On July 17, 2008 and July 18, 2008, Plaintiff maintains, Gorg also denied him hydrocortisone cream and verbally threatened him in response to grievances that he had filed against her.

On July 1, 2008, one of Plaintiff's four decaying teeth fell out. On July 2, 2008, Plaintiff wrote to Haag, informing him that his tooth had fallen out, and requesting a denture to replace the tooth. Plaintiff also reiterated that he was in pain from his remaining three cavities.

In or about July 15, 2008, Plaintiff experienced "increasing chest pains," and he maintains that Felker, Gorg, and Jilson refused to provide him with medical care. Complaint [#1] ¶ 74. Plaintiff alleges that he had made arrangements to have an x-ray taken to determine the cause of his pain, but Gorg cancelled the test in order to retaliate against him. Id. at ¶ 76. Plaintiff contends that he notified Felker that Gorg was denying him medical care, but Felker did nothing. He further contends that on July 30, 2008, Jilson told him that she would not give him any medical care.

On July 28, 2008, Haag examined Plaintiff, and Plaintiff indicated that he was having pain and bleeding when he ate, because of the missing tooth. Haag told Plaintiff that he was not entitled to receive a free bridge or denture for the missing tooth. Plaintiff further states that Haag told him that he would not provide him with a bridge or denture, because of the cost, and because he wanted to teach Plaintiff a lesson about filing grievances against him. Complaint [#1] ¶ 72.

To summarize, in the Complaint [#1], Plaintiff alleges that he was denied dental care including fillings, root canals, and dentures. He alleges that Haag, Alchimowicz and Hayth denied him appropriate dental care, because it took over fifteen months for him to receive dental treatment after arriving at Southport. He contends that such denial of treatment occurred because the dental department inappropriately allowed the nursing staff to have control over determining which inmates received dental care. He further contends that Haag denied him a denture for his missing tooth to retaliate against him for a grievance. Plaintiff further alleges that Weed, Gorg, and Jilson denied him dental care, and that Gorg and Jilson denied such care because they wanted to retaliate against him. Plaintiff maintains that Fowler, Northrop, and Felker are liable for the violations committed by Weed, Gorg, and Jilson, because they failed to properly train and/or ...

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