United States District Court, D. Connecticut
INITIAL REVIEW ORDER
STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE
Plaintiff Ja-Qore Al-Bukhari, currently incarcerated at Northern Correctional Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983. He alleges that the defendants violated his rights under the Eighth and Fourteenth Amendments and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., by denying him a root canal and crown to treat a cracked tooth. Al-Bukhari names as defendants the Department of Correction, the University of Connecticut Health Center, Correctional Managed Health Care and Brian Perlmutter. The complaint was received by the Court on February 8, 2016. Al-Bukhari’s motion to proceed in forma pauperis was granted on February 12, 2016.
Under section 1915A of title 28 of the United States Code, the court must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Id. In reviewing a pro se complaint, the court must assume the truth of the allegations, and interpret them liberally to “raise the strongest arguments [they] suggest.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
On March 3, 2015, while confined at the Cheshire Correctional Institution, Al-Bukhari submitted an inmate request to the dental staff. He stated that he was experiencing severe tooth pain whenever he ate or drank. Dental staff did not examine Al-Bukhari for three weeks.
On March 25, 2015, defendant Dentist Perlmutter diagnosed a cracked tooth. He told Al-Bukhari that there were two treatments, extraction or a root canal and crown. However, Dr. Perlmutter stated that the Department of Correction frowns on recommendations for root canals and crowns. Therefore, he stated that the only option was extraction. Al-Bukhari refused to have the tooth extracted. When he asked for pain medication, Dr. Perlmutter stated that he could not have pain medication because he refused to have his tooth extracted.
On May 6, 2015, Al-Bukhari was transferred to Garner Correctional Institution. He requested a dental examination. When he saw the dentist he reported that he had been diagnosed with a cracked tooth. The dentist prescribed pain medication at Al-Bukhari’s request. The dentist told Al-Bukhari that his tooth did not need to be extracted and stated that extraction should be used as a last resort when the tooth cannot be saved. Garner dental staff stated that pain medication should not have been denied just because he refused to have the tooth extracted.
Al-Bukhari included three counts: (1) the defendants were deliberately indifferent to his serious dental needs; (2) the defendants violated his rights under the ADA by excluding him from dental services; and (3) the defendants violated his Eighth and Fourteenth Amendment rights by creating a policy, or permitting a policy to continue, that deprived him of adequate dental care.
A. Americans with Disabilities Act
Al-Bukhari contends that the defendants discriminated against him and violated his rights under the ADA by denying him a root canal and crown. The purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The statute provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. The statute is intended “to ensure evenhanded treatment between the disabled and the able-bodied. Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998). The ADA does not apply to claims regarding the quality of medical services provided by correctional departments or provide a remedy for medical malpractice. See Maccharulo v. New York State Dep’t of Correctional Servs., No. 08 Civ. 301(LTS), 2010 WL 2899751, at *2 (S.D.N.Y. July 21, 2010) (citations omitted). If, however, correctional officials make treatment decisions based on an inmate’s disability when the disability is “unrelated to, and thus improper to consideration of” the treatment decision, the inmate can state an ADA claim. McGugan v. Aldana-Bernier, 752 F.3d 224, 234 (2d Cir. 2014).
Al-Bukhari alleges that he was denied proper dental care because defendant Perlmutter offered him only one option, tooth extraction. He does not identify any disabling condition or any program or service provided to able-bodies inmates but not to him. Even if his cracked tooth could be considered a disabling condition, Al-Bukhari has not identified any disparate treatment based upon the fact that he had a cracked tooth. Thus, his claim deals with the adequacy of medical services and is not actionable under the ADA. See Morris v. NYC HRA, No. 13-CV-1845(RRM)(MDG), 2015 WL 4727288, at *5 (E.D.N.Y. Aug. 10, 2015) (dismissing ADA claim for denial of medical and dental care because treatment not denied because of plaintiff’s disability). The ADA claim is dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
B. Defendants Department of Correction, University of Connecticut Health Center and Correctional Managed Health Care
Al-Bukhari names the Department of Correction, the University of Connecticut Health Center, and Correctional Managed Health Care as defendants. The Department of Correction and the University of Connecticut Health Center are state agencies. They are not considered persons within the meaning of section 1983. See Will v. Michigan Dep’t of Police, 491 U.S. 58, 70-71 (1989); see also Francilme v. Department of Corrections, No. 3:14-cv-808 (SRU), 2014 WL 5420789, at *3 (D. Conn. Oct. 22, 2014) (holding that Department of Correction and University of Connecticut Health Center are not persons within the meaning of section 1983). In addition, state agencies are protected by Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Thus, the Department of Correction and the University of Connecticut Health Center are not susceptible to liability under section 1983. See McGinty v. New York, 251 F.3d 84, 91 (2d Cir. 2001) (Eleventh Amendment ...