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Francis v. Presser

United States District Court, N.D. New York

March 9, 2015

COREY FRANCIS, Plaintiff,
v.
DAVID PRESSER, Dental Physician, Clinton Correctional Facility, Defendant.

COREY FRANCIS Plaintiff, Pro Se Buffalo Federal Detention Facility Batavia, New York.

HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Albany, New York, MICHAEL G. McCARTIN, ESQ. Assistant Attorney General, Attorney for Defendants.

REPORT-RECOMMENDATION & ORDER

RANDOLPH F. TREECE, Magistrate Judge.

Pro se Plaintiff Corey Francis, an inmate currently incarcerated at Buffalo Federal Detention Facility, brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was in the custody of the New York Department of Corrections and Community Supervision. Dkt. No. 1, Compl. Specifically, Plaintiff complains that Defendant David Presser, D.D.S., delayed his dental care while Plaintiff was housed in Clinton Correctional Facility in violation of the Eighth Amendment.

Currently before the Court is Defendant's Motion for Summary Judgment, filed pursuant to Federal Rule of Civil Procedure 56. Dkt. No. 43. Plaintiff opposes the Motion. Dkt. No. 46. For the reasons that follow, it is recommended that Defendant's Motion be granted and this action be dismissed.

I. BACKGROUND

The following material facts are undisputed.

The relevant events raised in this action concern the dental care Plaintiff received from August through November 2012 while at Clinton. On August 22, 2012, Francis was seen by Dr. Presser at Clinton, where Presser has been employed as a part-time dentist since September 2010. Dkt. No. 43-4, David B. Presser, D.D.S., Decl., dated Apr. 30, 2014, at ¶¶ 1 & 16. On that date, Francis indicated that it felt like there was a hole between two of his teeth, specifically between tooth #12 and tooth #13, so Dr. Presser took a periapical x-ray. Id. at ¶ 16. A periapical x-ray shows the entire tooth, and the primary purpose of such an x-ray is to show if tooth decay exists. Id. After examination of the x-ray, Dr. Presser found decay on both of the teeth at issue, and informed Francis of the potential loss of tooth #13. Id. at ¶ 17. Following that visit, Dr. Presser made several notations in Francis's medical record, including Francis's complaints, the x-ray results, and a notation stating "NV do #12, excavate #13." Dkt. No. 43-5, Presser Decl. Ex. A, Dental Treatment R., at p. 4.[1]

At that time, Francis was not experiencing pain during the daytime, but rather, his pain developed at night. Dkt. No. 43-3, Michael McCartin, Esq., Decl., Ex. A, Corey Francis Dep., dated Nov. 26, 2013, at pp. 67-69 (testifying that on August 22, the day he first saw Dr. Presser, he was not experiencing pain during the day). On August 28, 2012, Plaintiff wrote a grievance stating he was "having pain in [his] upper side tooth" and that he "continue[s] to be in pain." Dkt. No. 46, Corey Francis Aff., dated May 9, 2014, Ex. A6. This grievance is date stamped as received on September 12, 2012. Id.

Notwithstanding the grievance, although Francis was seen at the medical facility several times in September and October 2012, he did not complain about any dental pain he was experiencing.[2] Presser Decl., Ex. A, Ambulatory Health Record ("AHR"), at pp. 5-6. The first time Francis requested pain medication due to pain in his upper tooth was on October 22, 2012. Francis Aff., Ex. A8, Call-Out Slip, dated Sept. 25, 2012. In response, on October 23, 2012, ten doses of ibuprofen were prescribed. Presser Decl., Ex. A, AHR at p. 8.

On November 1, 2012, Francis was again seen by Dr. Presser, who, during that visit, filled both tooth #12 and tooth #13, and made a notation in the medical record "NV EXT # 13." Id., Dental Treatment R., at p. 9. Shortly after that visit, on November 13, 2012, Francis wrote a Letter addressed to "Dentist, " stating that he was experiencing even more pain than he had experienced prior to the fillings and that the pain came in the form of shocks. Francis Aff., Ex. A10, Francis Lt., dated Nov. 13, 2012. Plaintiff thought there was something wrong with the fillings and requested that it be corrected. Id. On November 15, 2012, after receiving Francis's November 13th Letter, Dr. Presser extracted tooth #13. Presser Decl. at ¶¶ 23 & 25, & Ex. A, Dental Treatment R., at p. 9. After the extraction and the healing process, Francis was no longer in pain. Francis Dep. at pp. 86-87.

II. DISCUSSION

A. Standard of Review

Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, " that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it ...


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