United States District Court, D. Connecticut
FRANCIS P. GAFFNEY, JR., Plaintiff,
BRIAN PERELMUTER, et al., Defendants.
RULING ON DEFENDANT'S MOTION FOR SUMMARY
R. UNDERHILL UNITED STATES DISTRICT JUDGE
plaintiff, Francis P. Gaffney, Jr. (“Gaffney”),
is currently incarcerated at Cheshire Correctional
Institution, in Cheshire, Connecticut. He initiated this
action by filing a complaint pro se pursuant to 42
U.S.C. § 1983 against Dr. Brian Perelmuter and Dental
Assistant Yvonne Borchert.
August 17, 2016, the court concluded that Gaffney had not
asserted facts to show that either defendant was aware that
Gaffney would suffer serious harm as a result of their
actions and dismissed the complaint regarding both
defendants, without prejudice. See IRO, [ECF No. 10]
at 4-5. The court informed Gaffney that he could move to
reopen the case and file an amended complaint provided he
could allege facts to satisfy the subjective prong of the
Eighth Amendment's deliberate indifference standard.
See Id. at 5.
September 7, 2016, Gaffney moved to file an amended
complaint. See Motion to Amend/Correct Complaint
[ECF No. 14]. On September 12, 2016, the court denied
Gaffney's motion to amend because the proposed amended
complaint did not cure the deficiencies in the complaint and
directed the Clerk to treat the motion as a notice of appeal
of the dismissal of the complaint. See Order [ECF
No. 15]. On February 6, 2017, the Court of Appeals for the
Second Circuit dismissed the appeal of the dismissal of the
claims against Dental Assistant Borchert because the appeal
lacked an arguable legal or factual basis, vacated the
judgment regarding Dr. Perelmuter and remanded the case back
to this court for further proceedings to enable Dr.
Perelmuter to file an answer or motion in response to the
complaint. See Mandate [ECF No. 18].
Perelmuter filed an answer to the complaint on May 15, 2017.
Pending before the court is Dr. Perelmuter's motion for
summary judgment. For the reasons set forth below, the motion
Standard of Review
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the burden of
proving that no factual issues exist. See Vivenzio v.
City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). A
fact is “material” if it “might affect the
outcome of the suit under the governing law, ” and is
“genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on it.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
motion for summary judgment is supported by documentary
evidence and sworn affidavits and “demonstrates the
absence of a genuine issue of material fact, ” the
nonmoving party must do more than vaguely assert the
existence of some unspecified disputed material facts or
“rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs.,
Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted).
Thus, the party opposing the motion for summary judgment
“must come forward with specific evidence demonstrating
the existence of a genuine dispute of material fact.”
reviewing the record, the court must “construe the
evidence in the light most favorable to the non-moving party
and to draw all reasonable inferences in its favor.”
Gary Friedrich Enters., L.L.C. v. Marvel Characters,
Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation
omitted). The court may not, however, “make credibility
determinations or weigh the evidence. . . . [because]
[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Proctor v.
LeClaire, 846 F.3d 597, 607-08 (2d Cir. 2017) (internal
quotation marks and citations omitted). If there is any
evidence in the record from which a reasonable factual
inference could be drawn in favor of the opposing party on
the issue on which summary judgment is sought, however,
summary judgment is improper. See Security Ins. Co. of
Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77,
83 (2d Cir. 2004).
one party is proceeding pro se, the court reads the
pro se party's papers liberally and interprets
them “to raise the strongest arguments that they
suggest.” Willey v. Kirkpatrick, 801 F.3d 51,
62 (2d Cir. 2015) (internal quotation marks and citation
omitted). Despite this liberal interpretation, however,
allegations unsupported by admissible evidence “do not
create a material issue of fact” and cannot overcome a
properly supported motion for summary judgment. Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Perelmuter has been licensed to practice dentistry since
2006. Perelmuter Decl. ¶ 3 [ECF No. 34-3]. As of May 8,
2015, Gaffney was confined at Cheshire and Dr. Perelmuter was
the assigned dentist at Cheshire. See Id. ¶ 5.
On that date, Dr. Perelmuter examined Gaffney's teeth in
response to Gaffney's complaint of pain in tooth number
three, a molar located on the right side of his upper jaw
(“molar number three”). Def.'s L.R. 56(a)1
¶ 1 [ECF No. 34-2]. Dr. Perelmuter ordered bite-wing
x-rays of molar number three. Id. ¶ 2. The
x-rays did not reveal a crack in the molar or any other
condition that would cause the pain experienced by Gaffney.
Perelmuter Decl. ¶ 8 [ECF No. 34-3]. Dr. Perelmuter
noted that Gaffney was likely experiencing inflammation from
his sinuses. Id. Dr. Perelmuter recommended
extraction of molar number three, but Gaffney refused to
consent to the extraction. Id. ¶ 6; Ex. 2 [ECF
No. 34-4], at 2 (Refusal of Health Services Form).
16, 2015, Dr. Perelmuter spoke to Gaffney about molar number
three. Def.'s L.R. 56(a)1 ¶ 7 [ECF No. 34-2]. On
June 23, 2015, Gaffney reported to the dental department and
signed a consent form with regard to the extraction of molar
number three because he was experiencing severe pain in that
molar. Def.'s L.R. 56(a)1 ¶ 8 [ECF No. 34-2]; Ex. 2
[ECF No. 34-4] at 3 (Oral Surgery Consent and Identification
Form); Pl.'s L.R. 56(a)2 ¶ 8 [ECF No. 39]. After
Gaffney signed the consent form, Dr. Perelmuter performed the
extraction. Def.'s L.R. 56(a)1 ¶ 9 [ECF No. 34-2].
Dr. Perelmuter used two sutures in the area where molar
number three had been extracted. Id. On June 30,
2015, Dr. Perelmuter removed the sutures from the area where
he had extracted molar number three. Id. ¶ 10.
28, 2015, Gaffney submitted an Inmate Request to the dental
department claiming that Dr. Perelmuter had permanently
attached the inside of his cheek to his gum line in the area
where Dr. Perelmuter had extracted molar number three, and
that the right side of his face, including the area around
his nose and lip, was numb. Gaffney Decl., ¶ 18 [ECF No.
39] at 14; Medical Records [ECF No. 40] at 1. On July 31,
2015, in response to Gaffney's complaint that it felt
like the inside of his cheek had been attached to his gum
line, Dr. Perelmuter used a scalpel to release the attachment
to Gaffney's cheek in the area where the number three
molar had been extracted. Def.'s L.R. 56(a)1 ¶ 11
[ECF No. 34-2]; Pl.'s L.R. 56(a)2 ¶ 11 [ECF No. 39];
Medical Records [ECF No. 40], at 1 (Inmate Request dated July
28, 2015). On August 7, 2015, in response to Gaffney's
complaint that the area on the inside of his cheek still felt
like it was attached to his gum line, Dr. Perelmuter again
used a scalpel to release the attachment near the area where
molar number three had been extracted. Def.'s L.R. 56(a)1
¶ 12 [ECF No. 34-2]; Gaffney Decl., ¶¶ 23 [ECF
December 15, 2015, Gaffney submitted an Inmate Request to the
medical/dental department complaining that Dr. Perelmuter had
unsuccessfully attempted to alleviate the sensation that felt
like the inside of his cheek was attached to his gum line,
that his right cheek area still felt numb and that he was
feeling the same tooth pain that he had experienced prior to
the extraction of molar number three. Pl.'s L.R. 56(a)2
¶ 13 [ECF No. 39]; Medical Records [ECF No. 40] at 2-3
(Inmate Request dated December 15, 2015). Dr.
Perelmuter's examination of Gaffney reflected that the
extraction area had healed and that the attachments between
the inside of Gaffney's right cheek and his gum line were
evenly released. Def.'s L.R. 56(a)1 ¶ 13 [ECF No.
December 18, 2015, Dr. Perelmuter submitted a request to the
Utilization Review Committee to approve a consultation with a
specialist to address Gaffney's complaints of numbness in
the right side of his cheek. Def.'s L.R. 56(a)1 ¶ 13
[ECF No. 34-2]; Ex. 2 [ECF No. 34-4] at 5. On December 21,
2015, the URC responded to the request and concluded that
“[n]o treatment was indicated. . . . [and that] [i]n
the absence of any apparent cause for the numbness Mr.
Gaffney claimed, only time would resolve.” Id.
¶ 14; Ex. 2 [ECF No. 34-4] at 5.
February 11, 2016, Gaffney submitted an Inmate Request Form
to the medical department regarding his concerns about the
method used by Dr. Perelmuter to extract molar number three,
the fact that Dr. Perelmuter had only partially alleviated
the sensation that the inside of his cheek was attached to
his gum line and that he was still experiencing numbness in
his right cheek. Def.'s L.R. 56(a)1 ¶ 16 [ECF No.
34-2]; Exs. to Compl., [ECF No. 1-1] at 20. In response to
this request, the dental department scheduled an appointment
for Gaffney with a new dentist at Cheshire named Dr. Bruce
Lichtenstein. Def.'s L.R. 56(a)1 ¶ 17 [ECF No.
34-2]; Exs. to Compl., [ECF No. 1-1] at 20, 53.
February 16, 2016, during his examination of Gaffney, Dr.
Lichtenstein noted Gaffney's complaints about numbness on
the right side of his face and sensitive and bleeding gums.
Def.'s L.R. 56(a)1 ¶ 17 [ECF No. 34-2]; Pl.'s
Decl. L. ¶ 32, Medical Records [ECF No. 40] at 14, Ex. 5
(Dental Record Entry - February 16, 2016). Dr. Lichtenstein
observed that the area at the sight of the extraction of
molar number three had healed and that the fold of skin near
the extraction site appeared to be within normal limits.
Def.'s L.R. 56(a)1 ¶ 18 [ECF No. 34-2]; Medical