GRIGGS v. SCHMAUSS DDS (2023)

DECISION AND ORDER

INTRODUCTION

Proceeding pro se, plaintiff Perry Griggs (“Plaintiff”) brings this action against defendant R. Schmauss, DDS (“Defendant”), alleging that Defendant was deliberately indifferent to his medical needs in violation of the Eighth Amendment, when he provided inadequate dental care by failing to fill cavities in Plaintiff's teeth. (Dkt. 12). Presently before the Court is Defendant's Motion for Summary Judgment. (Dkt. 55). For the following reasons, Defendant's motion is granted.

BACKGROUND

The following facts are taken from Defendant's Statement of Undisputed Facts (Dkt. 55-3), the exhibits submitted in support of his motion, including Plaintiff's deposition transcript (Dkt. 55-6) and a copy of his certified dental records (Dkt. 55-7), and Plaintiff's response to Defendant's Statement of Undisputed Facts (Dkt. 60 at 2).

Plaintiff was housed at Wende Correctional Facility (“Wende”) in 2014. (Dkt. 55-6 at 18). On December 4, 2014, Defendant conducted a dental examination of Plaintiff. (See id. at 28; see also Dkt. 55-7 at 2-3). Plaintiff remembered that Defendant was “upset” and “shaking” that day. (Dkt. 55-6 at 28-29, 48). Defendant examined Plaintiff, informed Plaintiff that he had cavities, including four teeth that needed fillings, and that they would be filled at a later date. (Id. at 48, 51).

Plaintiff testified that Defendant did not fill any of the four teeth, but he subsequently had one tooth extracted by another dentist at Wende in June 2017. (Id. at 53-54, 57).¹ Plaintiff further testified that he thought he was denied treatment because it was “more or less of a power struggle between the ․ administration,” but that he later “ran into a buddy ․ who had told [him] that he heard a conversation where it was said that [he] would never get [his] cavities filled.” (Id. at 60). Specifically, Plaintiff testified that inmate William Moore heard Defendant say that he would “make sure” that Plaintiff never got his cavities filled, “until hell freezes over.” (Id. at 61-62).

Defendant treated Plaintiff on one other occasion on March 24, 2016. (Id. at 37, 58-59, 68; see also Dkt. 55-7 at 3). Plaintiff did not receive any further treatment from Defendant after that date. (Dkt. 55-6 at 68). Plaintiff received treatment from other dental providers at Wende between December 2014 and March 2016, including from R. Tenbrink and Maureen Keller. (Id. at 59; see also Dkt. 55-7). Plaintiff left Wende in 2017. (Dkt. 55-6 at 20).

Thereafter, in 2022, Plaintiff had a temporary filling placed in one of the affected teeth. (Id. at 61). Plaintiff still experiences sharp and throbbing pain in that tooth, and difficulty eating and sleeping. (Id. at 80-81; see also Dkt. 60 at 2).

PROCEDURAL HISTORY

Plaintiff filed his complaint on July 12, 2017, against Defendant, as well as Maureen Keller, RDH and R. Tenbrink, DDS, alleging denial of medical treatment with respect to treatment he received from those providers for cavities in his teeth. (Dkt. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Dkt. 2). On January 17, 2018, the Honorable Michael A. Telesca, United States District Judge, granted Plaintiff's motion to proceed in forma pauperis and dismissed Plaintiff's claim, but granted Plaintiff leave to file an amended complaint. (Dkt. 4). Plaintiff filed an amended complaint against the same defendants on February 20, 2018 (Dkt. 5), which Judge Telesca dismissed with prejudice on April 12, 2018 (Dkt. 6).

Thereafter, Plaintiff filed a letter motion to vacate Judge Telesca's decision, attaching “newly discovered evidence,” in the form of an unsworn affidavit from inmate William Moore, dated June 21, 2018, in which Moore stated that on or about December 4, 2014, he overheard Defendant say, “[t]his fucking guy Griggs again,” and “I'm gonna make sure that he ․ never gets his cavities filled until hell freezes over.” (Dkt. 10 at 1, 3). The affidavit was witnessed by two inmates, and also includes the notation, “No notary available.” (See id. at 3). Judge Telesca granted the motion to vacate in part, noting that “[a]lthough the unsworn nature of Moore's statement is a potential barrier to admissibility, it bears noting that the Court is simply being asked to reconsider its ruling on an initial screening order of a pro se complaint․” (Dkt. 11 at 5-7). Judge Telesca directed Plaintiff to file a second amended complaint against Defendant only, within 30 days. (Id. at 7).

Plaintiff filed his second amended complaint on January 14, 2019, naming R. Schmauss, DDS as the sole defendant. (Dkt. 12). In his second amended complaint, Plaintiff alleges that on December 4, 2014, Defendant conducted a dental examination and determined that Plaintiff needed fillings in four teeth, but that he only did a filling on one tooth. (Id. at 5). Plaintiff further alleges that, on or about that same date, Defendant made a statement that he would make sure Plaintiff did not receive his fillings “until hell freezes over.” (Id.). Plaintiff seeks compensatory and punitive damages. (Id.).

Judge Telesca screened and directed service of the second amended complaint. (Dkt. 17). Following a delay in service, Defendant answered the second amended complaint on September 27, 2021. (Dkt. 35). The case was referred to the Honorable Marian W. Payson, United States Magistrate Judge, for pre-trial matters excluding dispositive motions. (Dkt. 36). On June 17, 2022, Judge Payson denied without prejudice Plaintiff's motion for appointment of counsel. (Dkt. 44; Dkt. 48).

On December 7, 2022, Defendant filed a motion for summary judgment. (Dkt. 55). On January 17, 2023, Plaintiff filed another motion to appoint counsel (Dkt. 58), which the Court denied on April 10, 2023 (Dkt. 59). The Court re-set Plaintiff's deadline for responding to Defendant's motion for summary judgment (id.), and Plaintiff filed his response on May 11, 2023 (Dkt. 60).

DISCUSSION

I. Legal Standard for Motion for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “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 Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as to any material fact․” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. Exhaustion of Administrative Remedies

Defendant first argues that he is entitled to summary judgment on Plaintiff's claim because Plaintiff failed to exhaust his administrative remedies, i.e., by filing a grievance within 21 days for his claim regarding denial of dental care on December 4, 2014. (Dkt. 55-4 at 8-9).

The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). To satisfy this requirement, the evidence must demonstrate the “proper exhaustion of administrative remedies.” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “Compliance with prison grievance procedures ․ is all that is required by the PLRA to ‘properly exhaust.’ ” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). As such, “[t]he exhaustion inquiry ․ requires that [the court] look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). “Exhaustion is mandatory—unexhausted claims may not be pursued in federal court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011).

Further, “[f]ailure to exhaust administrative remedies is an affirmative defense ․ and when raised as a basis for summary judgment, the defendant ‘bears the initial burden of establishing, by pointing to legally sufficient sources such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute.’ ” Deleon v. Ayers, No. 16-CV-6848L, 2023 WL 171889, at *2 (W.D.N.Y. Jan. 12, 2023) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)).

In support of his argument that Plaintiff failed to exhaust his administrative remedies, Defendant attaches Plaintiff's Inmate Grievance History to his attorney's declaration, which defense counsel obtained from the Central Office Review Committee (“CORC”). (See Dkt. 55-10 (Inmate Grievance History); see also Dkt. 55-2 at ¶ 5). The grievance history shows a total of seven grievances filed by Plaintiff between October 21, 2013, and March 7, 2019. (Dkt. 55-10). Two of the grievances concern his dental care: (1) a grievance filed on June 23, 2017, regarding “Tooth Pain,” and (2) a grievance filed on March 7, 2019, regarding “Filling Cavities.” (Id.). Defendant also submits a copy of the grievance filed on March 7, 2019. (Dkt. 55-11). The grievance is accompanied by a sworn Certification from Rachael Seguin, the Director of the Incarcerated Grievance Program, certifying that the records were kept in the regular course of business. (Id. at 1). The 2019 grievance pertains to alleged improper dental care Plaintiff received at Clinton Correctional Facility, after he left Wende. (Id. at 3-10). With respect to the June 23, 2017 grievance, defense counsel states that she was informed by the CORC that the grievance was “destroyed in the normal course of business.” (See Dkt. 55-2 at ¶ 5).

The Department of Corrections and Community Supervision (“DOCCS”) Directive 4040, which Defendant has submitted in support of his motion, pertains to the Inmate Grievance Program, and requires that an inmate file a grievance within 21 days of the alleged occurrence. (See Dkt. 55-12). Specifically, § 701.5(a) of DOCCS Directive 4040 states that “[a]n inmate must submit a complaint to the clerk within 21 calendar days of an alleged occurrence ․” (Id. at 7). Here, the grievance history shows that Plaintiff received dental care from Defendant on December 4, 2014, and again on March 24, 2016. (See, e.g., Dkt. 55-7). However, that grievance history does not reflect that Plaintiff filed any grievances complaining of improper dental care against Defendant, or any other dental provider, within 21 days of either of those dates. (See Dkt. 55-10). Rather, the grievance history shows that Plaintiff filed only one grievance in 2014 (filed on March 7, 2014, regarding “Double Bunk”), and no grievances in 2016. (Id.). The March 7, 2019 grievance concerning Plaintiff's dental care was filed years after Plaintiff last received treatment from Defendant in March 2016. Further, although the Court does not have a copy of the June 23, 2017 grievance, that grievance was filed approximately 15 months after Plaintiff was last treated by Defendant in March 2016.

Plaintiff disputes Defendant's contention that he failed to exhaust his administrative remedies, arguing that he “filed numerous grievances to no avail.” (Dkt. 60 at 2). During his deposition, Plaintiff stated that he has filed “so many [grievances] over the years,” but that he no longer files them. (Dkt. 55-6 at 70). Plaintiff further testified at his deposition that he filed grievances with respect to his dental care. (Id. at 70-75).

Notably, Defendant has failed to submit the grievance history as evidence in admissible form. As a result, the Court will not grant Defendant summary judgment on the basis that Plaintiff failed to exhaust his administrative remedies. The grievance history is simply attached as Exhibit E to Defendant's counsel's declaration and is not properly authenticated as a business record. While the Court may exercise its discretion and accept this evidence, see, e.g., Kaur v. N.Y.C. Health & Hosps. Corp., 688 F. Supp. 2d 317, 323-24 (S.D.N.Y. 2010), reconsideration denied, 2010 WL 11589961 (S.D.N.Y. May 10, 2010), this is not the first occasion on which an attorney from defense counsel's office has failed to submit an inmate grievance history in admissible form, see Allah v. Latona, 540 F. Supp. 3d 325, 330 n.2 (W.D.N.Y. 2021). Because Plaintiff objects to Defendant's contention that he did not grieve his claim, the Court will not grant Defendant summary judgment on this basis.

III. Plaintiff's Deliberate Indifference Claim

Defendant next argues that he is entitled to summary judgment on Plaintiff's deliberate indifference claim, including because there is no evidence in the record that Defendant knew of and disregarded an excessive risk of harm to Plaintiff. (See Dkt. 55-4 at 9-14).

“The Eighth Amendment, which applies to the states under the Due Process Clause of the Fourteenth Amendment, guarantees freedom from cruel and unusual punishment.” Jones v. Westchester Cnty. Dep't of Corrs. Med. Dep't, 557 F. Supp. 2d 408, 413 (S.D.N.Y. 2008). An Eighth Amendment claim arising out of inadequate medical care requires a plaintiff-inmate to demonstrate that a defendant was deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A claim for deliberate indifference has both an objective and a subjective component. Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).

Objectively, a medical need is serious for constitutional purposes if it presents “ ‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). “[I]f the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay ․ in that treatment, the seriousness inquiry focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (quotation and original alteration omitted). It is appropriate “to consider the absence of concrete medical injury as one of the relevant factors in determining whether the asserted deprivation of medical care was sufficiently serious to establish a claim under the Eighth Amendment.” Smith v. Carpenter, 316 F.3d 178, 189 (2d Cir. 2003).

“Subjectively, the official charged with deliberate indifference must have acted with the requisite state of mind, the ‘equivalent of criminal recklessness.’ ” Lapierre v. Cnty. of Nassau, 459 F. App'x 28, 29 (2d Cir. 2012) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Specifically, a plaintiff must prove that the prison official knew of a serious medical condition and nonetheless disregarded the plaintiff's medical needs. Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (holding that a prison official does not act in a deliberately indifferent manner towards an inmate unless he “knows of and disregards an excessive risk to inmate health or safety”); see also Beaman v. Unger, 838 F. Supp. 2d 108, 110 (W.D.N.Y. 2011) (“To establish deliberate indifference, ․ [a] plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain.”). More than medical malpractice is required to establish a constitutional violation. See Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (“Medical malpractice does not rise to the level of a constitutional violation unless the malpractice involves culpable recklessness[.]”). Similarly, mere negligence is not actionable. “A [prisoner's] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285.

Plaintiff has submitted a sworn affidavit, stating that he was examined by Defendant in 2014, at which time Defendant found that he had numerous cavities. (Dkt. 60 at 1). Plaintiff states that Defendant intentionally failed to address his problems, and was overheard by another inmate “voicing his anger at me for unknown reasons” and “stated that I would never get my teeth fixed.” (Id.). Plaintiff states that as a result, he has lost one tooth, had another tooth extracted, and had an infection from one of the cavities. (Id.). Plaintiff states that he has “been in excruciating pain for the last 7 years,” and that he has difficulty chewing, and eating hot or cold food. (Id.). He also has difficulty sleeping. (Id.). In support of his claims, he cites to his medical records, as well as the affidavit from William Moore. (Id. at 2).

The Court concludes that Plaintiff has presented evidence that, at this stage of the case, demonstrates an objective “serious medical need.” Plaintiff has submitted a sworn affidavit, stating that the delay in treatment for his teeth has caused him to experience long-lasting “excruciating pain” to the degree that he has difficulty eating and sleeping, and which has resulted in the extraction of teeth and infections. See, e.g., Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (“[A] tooth cavity is a degenerative condition, and if it is left untreated indefinitely, it is likely to produce agony and to require more invasive and painful treatments, such as root canal therapy or extraction.”).

However, as to the subjective prong of the analysis, there is no issue of fact with respect to deliberate indifference on the part of Defendant. In support of his motion for summary judgment, Defendant has submitted a sworn declaration, stating that following 30 years in private practice and working at Cuba Memorial Hospital, he was hired to provide dental services to inmates at Wende. (Dkt. 55-8 at ¶¶ 6-7). Defendant retired from Wende in late 2014 but could not recall the exact date he retired, and he has no recollection of providing services to Plaintiff. (Id. at ¶¶ 8-9). Defendant states that he does not know William Moore and denies making the statement that he would not fill Plaintiff's cavities “until hell freezes over.” (Id. at ¶¶ 11-12). Defendant further states: at no time did he deliberately deny dental treatment to Plaintiff or any other individual at Wende; he never stated that he would deny any incarcerated person dental care until “hell freezes over”; that when he worked at Wende he never discussed private patient information with anyone, other than care providers; and any statement made by William Moore regarding denial of dental treatment to Plaintiff is false, and he had no reason to deny care to Plaintiff or to any other patient at Wende. (Id. at ¶¶ 13-16).

In response, Plaintiff cites to the unsworn affidavit submitted by William Moore. (Dkt. 60 at 2). The Court's scheduling order on Defendant's motion for summary judgment, which was sent to Plaintiff, clearly states that “[a]ny witness statements ․ must be in the form of sworn affidavits (or declarations).” (See Dkt. 56 at 1). However, Plaintiff has not attempted to re-submit a sworn affidavit from Moore in responding to Defendant's motion for summary judgment—rather, Plaintiff relies on the unsworn affidavit he submitted in 2018 (Dkt. 60 at 2 (citing to “newly discovered evidence/statement submitted pursuant to Rule 60(b)(2) motion”)). Plaintiff was warned on at least two occasions—both in Judge Telesca's decision granting Plaintiff's motion to vacate, and again in the Court's scheduling order on the motion for summary judgment—that unsworn statements are not admissible and sworn statements are required. Indeed, Plaintiff clearly understood the Court's instructions in that respect, given that his own affidavit submitted in opposition to summary judgment is sworn. (See Dkt. 60 at 1). Despite these warnings, Plaintiff has not attempted to explain why he failed to submit any such evidence. As explained above, the Moore affidavit is not sworn, and “[d]istrict courts typically do not consider unsigned, unsworn affidavits when deciding a motion for summary judgment.” Hincapie v. City of N.Y., No. 18-CV-3432 (PAC), 2022 WL 2870411, at *2 n.4 (S.D.N.Y. July 21, 2022). Accordingly, the Court will not consider the June 2018 unsworn affidavit from William Moore in connection with Defendant's motion for summary judgment.²

Plaintiff also cites in his response papers to his dental records, which were submitted by Defendant in support of his motion for summary judgment. (Dkt. 60 at 2; see also Dkt. 55-7; Dkt. 55-13 at 4-9). However, the dental records, standing alone and without further explanation, provide limited information. The records consist of copies of dental imaging, dental clinical records (which list the dates Plaintiff received dental treatment, brief remarks, such as where he received treatment and/or a general description of the treatment, and the provider's signature), and one progress note. The records confirm that Plaintiff received treatment from Defendant on two occasions (on December 4, 2014, and again on March 24, 2016), as well as that Plaintiff had teeth cleanings and x-rays. The records also have notations of “possible decay.” However, the records, standing alone, do not contain any evidence with respect to deliberate indifference on the part of Defendant or any other medical provider.

Defendant has stated in a sworn declaration that he did not have any motivation to act with deliberate indifference toward Plaintiff, nor did he say that he would deny Plaintiff treatment “until hell freezes over.” As explained above, Plaintiff has failed to point to admissible evidence creating an issue of fact with respect to any deliberate indifference on the part of Defendant. Despite having the opportunity to engage in discovery for his claim, the only evidence on which Plaintiff relies with respect to any deliberate indifference on the part of Defendant is the same unsworn affidavit he submitted years ago, in 2018. On the record before the Court, the unsworn affidavit is not sufficient to create an issue of fact. Accordingly, Defendant is entitled to summary judgment, and Plaintiff's claim for deliberate indifference in violation of the Eighth Amendment is dismissed.

CONCLUSION

For the foregoing reasons, Defendant's Motion for Summary Judgment (Dkt. 55) is granted.

SO ORDERED.

FOOTNOTES

1.   Plaintiff's testimony at his deposition that Defendant did not fill any of his teeth is not consistent with the allegations in his verified second amended complaint, wherein Plaintiff alleges that Defendant “did a filling on one tooth.” (See Dkt. 12 at 5).

2.   Plaintiff states in his affidavit that Defendant was overheard “voicing his anger” at Plaintiff and stating that Plaintiff would never get his teeth fixed. (Dkt. 60 at 1). Plaintiff's statements about what William Moore allegedly heard Defendant say are not based on Plaintiff's personal knowledge and are inadmissible because they are hearsay.

ELIZABETH A. WOLFORD, Chief Judge