United States District Court, D. Connecticut
FRANCIS P. GAFFNEY, JR., Plaintiff,
BRIAN PERELMUTER, et al., Defendants.
INITIAL REVIEW ORDER
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
Francis P. Gaffney, Jr., currently incarcerated at Cheshire
Correctional Institution in Cheshire, Connecticut, filed this
case pro se under 42 U.S.C. § 1983 alleging
that the defendants were negligent and deliberately
indifferent to his serious medical needs. Gaffney names as
defendants Dentist Brian Perelmuter and Dental Assistant
Yvonne Borchert. The complaint, dated May 31, 2016, was
received by the court on August 16, 2016. See
Complaint (doc. 1-1).
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. 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
plausible 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).
23, 2015, Gaffney reported to the dentist for a tooth
extraction. When he arrived, defendant Borchert told the
dentist, Dr. Perelmuter, that he only had ten minutes and
asked whether the appointment should be rescheduled. Dr.
Perelmuter stated that he could do the extraction.
Perelmuter gave Gaffney an injection of Novocain. The tooth
broke during the extraction, leaving three pieces of the
molar. Dr. Perelmuter then changed instruments to “dig
out” the broken pieces of Gaffney’s tooth. The
instrument slipped and pushed through the gum area, stabbing
Gaffney inside his cheek. Gaffney experienced severe pain
shooting up the right side of his face, almost to his eye.
When Gaffney relaxed, Dr. Perelmuter continued extracting the
tooth pieces. Dr. Perelmuter’s instrument slipped twice
more, causing the same injury. Dr. Perelmuter did not provide
better pain management after realizing that the slippage
caused Gaffney severe pain. After the extraction, Dr.
Perelmuter applied stitches and instructed Gaffney to return
the following Friday to have the stitches removed.
after that appointment, Gaffney realized that his cheek had
been sewn to his gum. He experienced pain when he tried to
smile or move his lips to the left. In addition, the right
side of his face and nose from his upper lip to just below
his eye felt permanently numb. Gaffney experienced pain when
he tried to eat.
submitted a request for follow-up treatment. Before he
received a response to the request, Borchart sent Gaffney to
the dentist’s office following a medical visit. Dr.
Perelmuter numbed Gaffney’s face and used a razor-like
instrument to sever the connection between Gaffney’s
gum and cheek to repair the damage. Following treatment,
Perelmuter and Borchert inserted gauze in Gaffney’s
cheek and sent him back to his housing unit. Gaffney’s
face bled for four hours.
following Friday, August 7, 2015, Dr. Perelmuter called
Gaffney to the dental office to check his face. Dr.
Perelmuter again numbed Gaffney’s face and worked on
Gaffney’s face again using the razor-like instrument.
Borchert was not present at this visit. She appeared shocked
when she learned that Dr. Perelmuter had again treated
result of those incidents, Gaffney’s cheek is
permanently sewn to his gum in the area of the extraction.
There are scars where the cheek is sewn to his gum. When
Gaffney moves his lips to the left or opens his mouth wide,
he experiences pain. Gaffney cannot move his tongue from the
front to the back of his mouth without stopping and going
around the damaged area. The right half of Gaffney’s
upper lip, the right side of his nose and the right side of
his cheek from his upper lip to his eye are permanently numb.
When Gaffney touches the numb area in a certain way, he
experiences “a shock wave of pain.” Gaffney also
experiences pain when he eats.
asserts state law claims for negligence, malpractice and
infliction of emotional distress. He also alleges that the
defendants violated his Eighth Amendment rights “with
their actions and non-actions which was out of the scope of
normality, was negligent, and was deliberately indifferent
behavior towards me.” Complaint at ¶ 37.
state a claim for deliberate indifference to a serious
medical need, Gaffney must allege both that his medical need
was serious and that the defendants acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316
F.3d178, 184 (2d Cir. 2003) (citing Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976)). There are objective
and subjective components to the deliberate indifference
standard. Objectively, the alleged deprivation must be
“sufficiently serious.” Wilson v.
Seiter, 501 U.S. 294, 298 (1991). Subjectively, the
defendants must have been actually aware of a substantial
risk that the inmate would suffer serious harm as a result of
his action or inaction. See Salahuddin v. Goord, 467
F.3d 262, 279-80 (2d Cir. 2006). Negligence that would
support a claim for medical malpractice does not rise to the
level of deliberate indifference and is not cognizable under
section 1983. See id.
does not assert a claim for denial of treatment. Rather,
Gaffney alleges that Dr. Perelmuter was negligent during the
extraction of his tooth and that the defendants’ later
attempts to repair the damage to Gaffney’s cheek and
gum were only partially successful. Gaffney does not allege
facts showing that either Perelmuter or Borchert was aware
that Gaffney would suffer serious harm as a result of their
actions. Courts considering claims of botched tooth
extractions have found that such claims do not rise to the
level of deliberate indifference. See, e.g.,
McGowan v. Hulick, 612 F.3d 636, 641-42 (7th Cir.
2010) (affirming dismissal of claim against dentist for
botched extraction as negligence or gross negligence because
no evidence that dentist maliciously intended to cause
prisoner pain or performed procedures in way he knew would
create substantial risk of complications); Majors v.