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Terrence Hemby v. Dr. Mcgraw

February 15, 2012

TERRENCE HEMBY, PLAINTIFF,
v.
DR. MCGRAW, DENTIST, EASTERN CORRECTIONAL FACILITY; SLOSARSKA, DENTIST, EASTERN CORRECTIONAL FACILITY; PERINO, DENTAL ASSISTANT, EASTERN CORRECTIONAL FACILITY; AND DEJESUS, DENTAL ASSISTANT, EASTERN CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Plaintiff's objections to Magistrate Judge Baxter's December 19, 2011 Order and Report and Recommendation.

II. BACKGROUND*fn1

At all times relevant to the complaint, Plaintiff was incarcerated at Eastern Correctional Facility. In his amended complaint, Plaintiff alleges that, on November 7, 2007, he had a dental appointment for a routine cleaning. See Dkt. No. 8 at ¶ 10. Plaintiff claims that, during that appointment, he was told that he had numerous cavities. See id. This information was conveyed to Defendant Parrino who told Plaintiff that he would be placed on a "call out" to have these cavities filled. See id. Plaintiff alleges that he was never called for the fillings and, on February 19, 2008, he returned to the dentist "on an emergency" because the teeth that should have been filled had decayed to the point where they had to be extracted. See id.

Plaintiff claims that this conduct violated the Department of Correctional Services ("DOCS")*fn2 policy, as written by the Director of Dental Services, requiring that inmates receive dental care that meets "the same standards of quality" provided to individuals who are not incarcerated. See id. at ¶ 11.

Almost a year later, on January 12, 2009, Plaintiff went to the dentist "on an emergency." See id. at ¶ 12. Plaintiff claims that Defendant McGraw filled a tooth in the "front of Plaintiff's mouth." See id. Plaintiff alleges that, two-days later, on January 14, 2009, he had to return to the dentist to have the same tooth extracted. Plaintiff alleges that Defendant Slosarska, who had taken over Plaintiff's dental care from Defendant McGraw, extracted the tooth, and Plaintiff blames Defendant McGraw for allowing the tooth to decay in violation of "Dental Policy Standards."*fn3 See id. at ¶ 14. Also, on January 14, 2009, Plaintiff claims that Defendant Slosarska told him that he had three more cavities, and that he could not have "the plate" that he needed for the missing teeth until these three cavities were filled. See id. at ¶ 15.

On January 22, 2009, Plaintiff states that he was called back to the dental department for follow-up treatment of a "dry socket" from the January 14 extraction of his front tooth. See id. at ¶ 16. Plaintiff claims that he asked how long it was going to take to get the required dental work done so that the "plate" for his missing teeth could be made. Plaintiff alleges that he was told that his "follow-up" would be done in two weeks, and that Defendant DeJesus told him that "all the work would be completed in four weeks." Plaintiff claims, however, that after sixty days, the work on his teeth still had not been completed, again in violation of DOCS' dental policy. See id. at ¶¶ 16-17. Plaintiff claims that he filed "numerous grievances" and exhausted his administrative remedies with regard to his dental care.

In his complaint, Plaintiff alleges that Defendants denied him constitutionally adequate dental care and that he has been subject to retaliation for complaining about the quality of care he received. On April 25, 2011, Defendants' filed a motion for summary judgment. See Dkt. No. 55. In support of their motion for summary judgment, Defendants argue that Plaintiff received a substantial amount of dental care while at Eastern, and that the care he received was, at all times, constitutionally adequate and in compliance with DOCS policies. Defendants further argue that Defendants DeJesus and Parrino were not personally involved with Plaintiff's dental care, and that providing dental care is beyond the scope of their respective practices because dental assistants are only allowed to perform routine cleaning, sanitize instruments, and maintain appointment schedules.

In his December 19, 2011 Order and Report and Recommendation, Magistrate Judge Baxter recommended that the Court grant Defendants' motion. See Dkt. No. 60. Specifically, Magistrate Judge Baxter assumed for purposes of his recommendation that Plaintiff had a serious medical/dental need but further recommended that the Court find that none of the named Defendants were personally involved in Plaintiff's care in 2007. See id. at 13. Further, Magistrate Judge Baxter recommended that the Court find that none of the named Defendants were involved with Plaintiff's care until Defendant McGraw began seeing Plaintiff in June of 2008 and, therefore, any alleged delay prior to that time cannot be held against Defendants due to lack of personal involvement. See id. at 16. Moreover, Magistrate Judge Baxter recommended that the Court find that, once Defendants did start treating Plaintiff, the records show that he was seen often for dental care and that there is no evidence that Defendants were deliberately indifferent to Plaintiff's dental needs. See id. at 16-17 (citation omitted). Thereafter, Magistrate Judge Baxter recommended that the Court find that Defendants Parrino and DeJesus, as dental assistants, were not responsible for Plaintiff's dental care and that Plaintiff's conclusory statements alleging that Defendants Parrino and DeJesus were somehow involved in delaying his care is "simply untenable." See id. at 17. Finally, Magistrate Judge Baxter recommended that the Court find "Plaintiff's claim of retaliation is completely conclusory and unsupported by any evidence." See id. at 21.

On December 22, 2011, Plaintiff objected to Magistrate Judge Baxter's Order and Report and Recommendation. See Dkt. No. 61. Plaintiff claims that he "has shown an overwhelming amount of facts concerning deliberate indifference to his serious medical needs[,]" and that he "has shown the court that all the defendants acted with intent and malice[.]" See id. at 1. Plaintiff claims that Defendants' deliberate indifference is shown by the fact that, among other things, "he had to wait close to two years to receive" the "partial plate." See id. at 4. Further, Plaintiff alleges that Magistrate Judge Baxter erred in concluding that Defendants DeJesus and Parrino were not involved with Plaintiff's dental care when his teeth were being cleaned. See id. at 5. Plaintiff claims that Defendants DeJesus and Parrino were both present when his teeth were cleaned, and that they were "also there to maintain records and to schedule appointments, which was never done in the plaintiff's case." See id.

III. DISCUSSION

A. Standard of review

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. ยง 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate ...


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