Gaffney v. Perelmuter

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         The 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.

         On 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.

         On 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].

         Dr. 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 is granted.

         I. Standard of Review

         Summary 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 (1986).

         When a 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.” Id.

         In 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).

         Where 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).

         II. Facts^[1]

         Dr. 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).

         On June 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.

         On July 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 No. 39].

         On 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. 34-2].

         On 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.

         On 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.

         On 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 ...