Hemby v. McGraw et al

Filing 62

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Baxter's December 19, 2011 Order and Report and Recommendation is ADOPTED in its entirety for the reasons set forth therein and as set forth in this Memorandum-Decision and Order. ORDERS that Defendants' motion for summary judgment is GRANTED. ORDERS that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this Memorandum-Decision and Order would not be taken in good faith. ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 2/15/12. {order served via regular mail on all non-ecf parties}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TERRENCE HEMBY,
Plaintiff,
vs.

9:09-cv-582
(MAD/ATB)

DR. McGRAW, Dentist, Eastern Correctional
Facility; SLOSARSKA, Dentist, Eastern
Correctional Facility; PERINO, Dental Assistant,
Eastern Correctional Facility; and DeJESUS,
Dental Assistant, Eastern Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

TERRENCE HEMBY
01-A-1300
Clinton Correctional Facility
PO Box 2002
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

DEAN J. HIGGINS, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Currently before the Court are Plaintiff's objections to Magistrate Judge Baxter's
December 19, 2011 Order and Report and Recommendation.

II. BACKGROUND1
At all times relevant to the complaint, Plaintiff was incarcerated at Eastern Correctional
Facility. In his amended complaint, Plaintiff alleges that, on November 7, 2007, he had a dental
appointment for a routine cleaning. See Dkt. No. 8 at ¶ 10. Plaintiff claims that, during that
appointment, he was told that he had numerous cavities. See id. This information was conveyed
to Defendant Parrino who told Plaintiff that he would be placed on a "call out" to have these
cavities filled. See id. Plaintiff alleges that he was never called for the fillings and, on February
19, 2008, he returned to the dentist "on an emergency" because the teeth that should have been
filled had decayed to the point where they had to be extracted. See id.
Plaintiff claims that this conduct violated the Department of Correctional Services
("DOCS")2 policy, as written by the Director of Dental Services, requiring that inmates receive
dental care that meets "the same standards of quality" provided to individuals who are not
incarcerated. See id. at ¶ 11.
Almost a year later, on January 12, 2009, Plaintiff went to the dentist "on an emergency."
See id. at ¶ 12. Plaintiff claims that Defendant McGraw filled a tooth in the "front of Plaintiff's
mouth." See id. Plaintiff alleges that, two-days later, on January 14, 2009, he had to return to the
dentist to have the same tooth extracted. Plaintiff alleges that Defendant Slosarska, who had
taken over Plaintiff's dental care from Defendant McGraw, extracted the tooth, and Plaintiff

Since Plaintiff did not object to Magistrate Judge Baxter's factual recitation, unless
otherwise noted, the Court has adopted the facts set forth in the December 19, 2011 Order and
Report and Recommendation.
1

On April 1, 2011, DOCS and the New York State Division of Parole were merged into
one agency, named the New York State Department of Corrections and Community Supervision.
Since the events relevant to this suit occurred before the merger, the Court will refer to New York
State's corrections agency as "DOCS."
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blames Defendant McGraw for allowing the tooth to decay in violation of "Dental Policy
Standards."3 See id. at ¶ 14. Also, on January 14, 2009, Plaintiff claims that Defendant Slosarska
told him that he had three more cavities, and that he could not have "the plate" that he needed for
the missing teeth until these three cavities were filled. See id. at ¶ 15.
On January 22, 2009, Plaintiff states that he was called back to the dental department for
follow-up treatment of a "dry socket" from the January 14 extraction of his front tooth. See id. at
¶ 16. Plaintiff claims that he asked how long it was going to take to get the required dental work
done so that the "plate" for his missing teeth could be made. Plaintiff alleges that he was told that
his "follow-up" would be done in two weeks, and that Defendant DeJesus told him that "all the
work would be completed in four weeks." Plaintiff claims, however, that after sixty days, the
work on his teeth still had not been completed, again in violation of DOCS' dental policy. See
id. at ¶¶ 16-17. Plaintiff claims that he filed "numerous grievances" and exhausted his
administrative remedies with regard to his dental care.
In his complaint, Plaintiff alleges that Defendants denied him constitutionally adequate
dental care and that he has been subject to retaliation for complaining about the quality of care he
received. On April 25, 2011, Defendants' filed a motion for summary judgment. See Dkt. No. 55.
In support of their motion for summary judgment, Defendants argue that Plaintiff received a
substantial amount of dental care while at Eastern, and that the care he received was, at all times,
constitutionally adequate and in compliance with DOCS policies. Defendants further argue that
Defendants DeJesus and Parrino were not personally involved with Plaintiff's dental care, and that
providing dental care is beyond the scope of their respective practices because dental assistants

Attached as Exhibit "A" to Plaintiff's amended complaint is a copy of DOCS' Division of
Health Services Policy entitled "Dental Services." See Dkt. No. 8 at 8-36.
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are only allowed to perform routine cleaning, sanitize instruments, and maintain appointment
schedules.
In his December 19, 2011 Order and Report and Recommendation, Magistrate Judge
Baxter recommended that the Court grant Defendants' motion. See Dkt. No. 60. Specifically,
Magistrate Judge Baxter assumed for purposes of his recommendation that Plaintiff had a serious
medical/dental need but further recommended that the Court find that none of the named
Defendants were personally involved in Plaintiff's care in 2007. See id. at 13. Further,
Magistrate Judge Baxter recommended that the Court find that none of the named Defendants
were involved with Plaintiff's care until Defendant McGraw began seeing Plaintiff in June of
2008 and, therefore, any alleged delay prior to that time cannot be held against Defendants due to
lack of personal involvement. See id. at 16. Moreover, Magistrate Judge Baxter recommended
that the Court find that, once Defendants did start treating Plaintiff, the records show that he was
seen often for dental care and that there is no evidence that Defendants were deliberately
indifferent to Plaintiff's dental needs. See id. at 16-17 (citation omitted). Thereafter, Magistrate
Judge Baxter recommended that the Court find that Defendants Parrino and DeJesus, as dental
assistants, were not responsible for Plaintiff's dental care and that Plaintiff's conclusory statements
alleging that Defendants Parrino and DeJesus were somehow involved in delaying his care is
"simply untenable." See id. at 17. Finally, Magistrate Judge Baxter recommended that the Court
find "Plaintiff's claim of retaliation is completely conclusory and unsupported by any evidence."
See id. at 21.
On December 22, 2011, Plaintiff objected to Magistrate Judge Baxter's Order and Report
and Recommendation. See Dkt. No. 61. Plaintiff claims that he "has shown an overwhelming
amount of facts concerning deliberate indifference to his serious medical needs[,]" and that he
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"has shown the court that all the defendants acted with intent and malice[.]" See id. at 1. Plaintiff
claims that Defendants' deliberate indifference is shown by the fact that, among other things, "he
had to wait close to two years to receive" the "partial plate." See id. at 4. Further, Plaintiff
alleges that Magistrate Judge Baxter erred in concluding that Defendants DeJesus and Parrino
were not involved with Plaintiff's dental care when his teeth were being cleaned. See id. at 5.
Plaintiff claims that Defendants DeJesus and Parrino were both present when his teeth were
cleaned, and that they were "also there to maintain records and to schedule appointments, which
was never done in the plaintiff's case." See id.

III. DISCUSSION
A.

Standard of review
When a party files specific objections to a magistrate judge's report-recommendation, the

district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
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F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party’s Rule 56.1 statement; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
In reviewing a pro se case, the court "must view the submissions by a more lenient
standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court
is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently
forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
However, this does not mean that a pro se litigant is excused from following the procedural
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requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725,
2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's 'bald assertion,'
completely unsupported by evidence" is not sufficient to overcome a motion for summary
judgment. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991)).

B.

Deliberate Indifference to a Serious Medical/Dental Need
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual

punishment." U.S. Const. amend. VIII. This prohibition includes any "unnecessary and wanton
infliction of pain" on those who have been convicted of crimes. Hathaway v. Coughlin, 37 F.3d
63, 66 (2d Cir. 1994) (citations omitted). Nevertheless, the United States Supreme Court has
recognized that not "every injury" a prisoner suffers "translates into constitutional liability for
prison officials." Farmer v. Brennan, 511 U.S. 825, 834 (1994).
In order to establish a claim for unconstitutional denial of medical care, "a prisoner must
prove 'deliberate indifference to [his] serious medical needs.'" Hathaway, 37 F.3d at 66 (quoting
Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976)). This standard
requires proof of both an objective and subjective element and this same test applies to cases
alleging that a defendant was deliberately indifferent to a plaintiff's serious dental need. See Bain
v. Hsu, No. 1:06-CV-189, 2010 WL 3927589, *4 (D. Vt. Sept. 29, 2010) (citing cases).
First, the prisoner must demonstrate that his alleged deprivation was of a "sufficiently
serious" nature. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This can be shown by
proving "a condition of urgency, one that may produce death, degeneration, or extreme pain."
Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990). Courts have also considered factors such as
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"(1) whether a reasonable doctor or patient would perceive the medical need in question as
'important and worthy of comment or treatment,' (2) whether the medical condition significantly
affects daily activities, and (3) 'the existence of chronic and substantial pain.'" Brock v. Wright,
315 F.3d 158, 162 (2d Cir. 2003) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
Second, a prisoner must show that "the prison official knew of and disregarded his serious
medical needs." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). It is not enough to merely disagree over the proper course
of treatment. See Chance, 143 F.3d at 703. Rather, a prisoner must demonstrate that the prison
official acted intentionally, for example, by "intentionally denying or delaying access to medical
care or intentionally interfering with . . . treatment." Estelle v. Gamble, 429 U.S. 97, 104(1976).
Having reviewed Plaintiff's claims de novo, the Court finds that Magistrate Judge Baxter
correctly recommended granting Defendants' motion for summary judgment as to Plaintiff's
Eighth Amendment deliberate indifference claims. The record makes clear that Plaintiff received
extensive dental treatment while he was incarcerated at Eastern Correctional Facility. See Estelle,
429 U.S. at 107 (considering the extensive scope of medical care provided to the inmate plaintiff
in determining that his claim that "more should have been done by way of diagnosis and
treatment" may have indicated medical malpractice, but failed to state an Eighth Amendment
cause of action). Further, as Magistrate Judge Baxter correctly found, there is no indication that
any of the named Defendants were involved with Plaintiff's care until June of 2008 and, therefore,
any alleged delay prior to that time cannot be held against Defendants due to their lack of
personal involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (holding that
"personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983" (internal quotation and citations omitted)).
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The record also makes clear that Plaintiff failed to appear for several dental appointments,
that he refused sutures after a tooth extraction, and that, at one point, he stopped taking
medication prescribed to him for an issue with one of his teeth. See Dkt. No. 56-1; Dkt. No. 55-7
at ¶¶ 21-22, 23; Dkt. No. 55-3 at ¶¶ 14, 17. Moreover, Plaintiff appears to disagree with
treatment decisions made by Defendants; however, it is not enough to merely disagree over the
proper course of treatment. See Chance, 143 F.3d at 703. Further, although Plaintiff alleges that
Defendants were deliberately indifferent in failing to provide him with a "plate" for two years,
Defendant Slosarska states that she does not recall discussing such a proposed treatment with
Plaintiff, and that "such a plate would not have been contemplated until the other dental
procedures had been completed." See Dkt. No. 55-7 at ¶ 27. Again, Plaintiff has failed to
establish anything beyond a disagreement over treatment, which fails to meet the deliberate
indifference standard.
Finally, as to Defendants Parrino and DeJesus, Magistrate Judge Baxter correctly found
that they were not involved with Plaintiff's care, that they are not supervisors, and that they had
no authority to dictate a plan for Plaintiff's dental treatment. See Smith v. Woods, No. 9:05-CV1439, 2008 WL 788573, *9 & n.7 (N.D.N.Y. Mar. 20, 2008) (holding that a social worker and
psychologist in a prison had no authority to override the decision of the treating psychiatrist
regarding appropriate medication for an inmate/patient and could not be liable for deliberate
indifference with respect to that decision); Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000)
(holding that the failure of a medical professional at a prison to intercede in the treatment of an
inmate by his superiors is objectively reasonable and entitled them to qualified immunity because
they lack the authority to intervene in medical decisions).

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Having conducted a de novo review of Plaintiff's claims, the Court finds that Magistrate
Judge Baxter correctly recommended that the Court should grant Defendants' motion for
summary judgment as to Plaintiff's Eight Amendment deliberate indifference claims. The record
makes clear that Plaintiff received extensive dental care while at Eastern, and that much of the
alleged delay in his treatment was caused by his own conduct, including the refusal of treatment
and his failure to attend his dental appointments. See Alster v. Goord, 745 F. Supp. 2d 317, 334
(S.D.N.Y. 2010) (holding that refusal of care effectively refutes an Eighth Amendment claim of
deliberate indifference).

C.

Retaliation
In order to sustain a retaliation claim, "a prisoner must demonstrate the following: '(1) that

the speech or conduct at issue was protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection between the protected speech and the
adverse action.'" Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quotation omitted).
The Second Circuit has defined "adverse action" in the prison context as "retaliatory
conduct 'that would deter a similarly situated individual of ordinary firmness from exercising . . .
constitutional rights.'" Id. at 381 (quotation omitted). This objective test applies even if the
plaintiff was not himself subjectively deterred from exercising his rights. See id.
The court must keep in mind that claims of retaliation are "easily fabricated" and "pose a
substantial risk of unwarranted judicial intrusion into matters of general prison administration."
Bennett, 343 F.3d at 137 (citation omitted). Accordingly, the plaintiff must set forth
non-conclusory allegations. See id. Finally, even if the plaintiff makes the appropriate showing,

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the defendants may avoid liability if they demonstrate that they would have taken the adverse
action even in the absence of the protected conduct. See id.
In his response to Defendants' motion for summary judgment, Plaintiff alleges that
Defendants started writing "no show," indicating that he failed to appear for a dental appointment,
after he filed grievances requesting that he be given appropriate dental care. See Dkt. No. 57 at ¶
12. Although Plaintiff claims that he filed numerous grievances, there is only one that has been
submitted in this case, and it was filed by Plaintiff on March 13, 2009. See Dkt. No. 55-4. The
record further indicates that only two "no show" notations are made after Plaintiff filed this
grievance, and the notations were not written until June 2 and 12, 2009 – three months after
Plaintiff filed his grievance and after he was seen by the dental department for a procedure on
April 30, 2009. See id. at 3; Dkt. No. 56-1 at 4. Further, after the first "no show" on June 2,
2009, Plaintiff was seen for another dental procedure on June 4, 2009. See Dkt. No. 56-1 at 4.
Finally, the record also makes clear that the June 12, 2009 "no show" was because Plaintiff was
placed in the Special Housing Unit ("SHU"). See id.
In his objections, Plaintiff fails to provide any additional details regarding this claim and
simply argues that Defendants failed to comply with the standard procedures for missing a
medical call. See Dkt. No. 61 at 2. As Magistrate Judge Baxter correctly found, Plaintiff's
retaliation claim is completely conclusory and unsupported by any evidence. The record makes
clear that, even after Plaintiff filed his grievance, he continued to receive constant and adequate
dental care and, therefore, Plaintiff has failed to establish that Defendants' took any adverse action
against him because he engaged in a constitutionally protected activity. Plaintiff's conclusory
allegations to the contrary are insufficient to withstand Defendants' motion for summary
judgment.
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Based on the foregoing, the Court grants Defendants' motion for summary judgment as to
Plaintiff's retaliation claim.

IV. CONCLUSION
After carefully considering Magistrate Judge Baxter's Order and Report and
Recommendation, Plaintiff's objections thereto and the applicable law, and for the above-stated
reasons, the Court hereby
ORDERS that Magistrate Judge Baxter's December 19, 2011 Order and Report and
Recommendation is ADOPTED in its entirety for the reasons set forth therein and as set forth in
this Memorandum-Decision and Order; and the Court further
ORDERS that Defendants' motion for summary judgment is GRANTED; and the Court
further
ORDERS that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this
Memorandum-Decision and Order would not be taken in good faith; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve the parties with a copy of this
Memorandum-Decision and Order in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: February 15, 2012
Albany, New York

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