Opinion
CIVIL NO. 98-3883(JBS).
May 10, 1999
Morris B. Yuson, A.C. Wagner Youth Correctional Facility, South Bridgeton, New Jersey, Plaintiff Pro Se.
Stephen D. Holtzman, Esq., Vanessa P. Patrizi, Esq., Lally, Holtzman, Gilligan, Duffin Quasti, P.C., Linwood, New Jersey, Attorneys for Defendant.
OPINION
Plaintiff Morris B. Yuson filed this lawsuit alleging violations of his constitutional rights through 42 U.S.C. § 1983 while he was incarcerated at Bayside State Prison. More specifically, plaintiff charges that defendant, Mary Lombardo, was deliberately indifferent to his known, serious medical need — a cracked wisdom tooth. Defendant filed the instant motion for summary judgment. For the reasons stated herein, defendant's motion will be granted.
I. BACKGROUND
According to plaintiff's Complaint, on February 25, 1998, plaintiff's wisdom tooth cracked and caused pain. (Compl. at 6.) As a result, he turned in health services forms seeking to have the tooth pulled and to be given pain killers. (Id.) On March 2, plaintiff's Complaint alleges, he filled out one dental form and one medical form because there had been no reply to his original form. (Id.) On March 5, plaintiff allegedly filled out two more forms for dental help, along with an official interview request form. (Id.) All of this, plaintiff alleges, was to no avail, for between February 25, 1998 and March 9, 1998, whenever plaintiff tried to stop a Corrections Medical Service ("CMS") staff member, he was met with profane language. (Id.) As a result, plaintiff alleges that he has lost sleep, has been in pain, and has been scared to seek help from the CMS. (Id.)
Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 charging defendant, Mary Lombardo, the Supervisor of Nursing for CMS, with violating the Eighth Amendment's ban on cruel and unusual punishments through deliberate indifference to plaintiff's serious medical need, of which defendant was aware. On March 25, 1998, defendant filed the summary judgment motion that is now before this Court, and to that motion, defendant attached the affidavit of Mary Lombardo as well plaintiff's medical records. As of today's date, this Court has received no response from plaintiff; indeed, plaintiff has never sought an extension of time in which to answer this motion. For the purposes of this motion, then, the facts as stated below are undisputed.
As the Supervisor of Nursing for CMS, defendant was not responsible for direct patient/inmate care, but rather her responsibilities were managerial in nature. (Lombardo Aff. ¶ 2.) According to defendant's uncontroverted sworn statement, at no time did she act deliberately indifferent or intentionally, or instruct others to so act, against the plaintiff. (Id. at ¶ 3.) Plaintiff's medical records indicate that plaintiff filled out only two Health Service Request Forms for his wisdom tooth complaints, dated March 2, 1998 and August 12, 1998. (Def.'s Br. App. B.) As a result of the March 2, 1998 request form, plaintiff was placed on Doctor Call. (Id. at App. C.) Plaintiff was called to medical on March 5, but the record is marked "DNA for doctor call," which means that plaintiff did not respond. (Id.) As a result of the August 12, 1998 request form, plaintiff was again placed on Doctor Call. (Id. at App. D.) This time, plaintiff responded and was seen by a dentist on August 20. (Id.) On that same date, plaintiff signed a consent for dental treatment, agreeing to have his "ext#1" treated, and the dental records indicate that treatment to the "ext#1" was rendered." (Id.)
Contrary to the plaintiff's unsupported assertion in his Complaint, there are no remedy forms or interview request forms in plaintiff's medical file. (Id. at App. B.) Moreover, plaintiff's medical file indicates that he was seen by the medical department several times after the February 25, 1998 incident. On March 25, 1998, a Problem List Form indicates no problem other than Congenital VSD (heart murmur). (Id.) In medical progress notes dated March 11, 1998, plaintiff was seen for intake and no mention was made of any tooth complaints. (Id.) On May 27, 1998, plaintiff was seen in the Cardiac Chronic Care Clinic. (Id.) On September 21, 1998, plaintiff was seen and denied any acute medical problems. (Id.) At no point in that time do the records indicate that plaintiff complained of tooth pain. (Id.)
II. DISCUSSION
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Products, 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
Here, plaintiff's claim purportedly arises under 42 U.S.C. § 1983 for a violation of plaintiff's Eighth Amendment rights by a state actor. The standard for an Eighth Amendment claim based on failure to provide medical services was well established in Estelle v. Gamble, 429 U.S. 97 (1976): the plaintiff must show that defendant acted with deliberate indifference to a known medical need. Id. Even if the medical treatment provided to a prisoner is so negligent as to constitute medical malpractice, that does not rise to the level of "deliberate indifference" as required by § 1983. Id. at 107; Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993).
As the evidence is uncontroverted, there are no disputed issues of fact in this case. It is clear that plaintiff can establish neither deliberate indifference nor serious medical need. Rather than showing that defendant acted with deliberate indifference to plaintiff's complaints, plaintiff's medical records indicate that the medical department responded to each of plaintiff's complaints in a timely and regular basis, scheduling time for the plaintiff with a doctor each time he filed a complaint, and providing treatment for plaintiff when he responded to the medical call. Even if plaintiff is unsatisfied with the adequacy of the treatment provided, it is not this Court's job to "second guess medical judgment and to constitutionalize claims which sound in tort law." United States ex rel. Walker v. Fayette County, Pennsylvania, 599 F.2d 573, 575 n. 2 (3d Cir. 1979).
Nor does the evidence indicate that plaintiff's cracked wisdom tooth was a "serious medical condition." A medical need is "serious" if it has been diagnosed by a physician as requiring treatment or is so obvious that "a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)), cert. denied, 486 U.S. 1006 (1988). Given that the record establishes that plaintiff did not mention his dental complaints in any of his numerous medical visits after the pain allegedly arose, except in two medical forms, one of which led to a scheduled Doctor Call to which plaintiff did not respond, and the other of which resulted in the extraction of plaintiff's tooth, the record as a whole does not establish that plaintiff had a serious medical condition of which the defendant was aware.
Furthermore, defendant was not responsible for direct patient/inmate care for CMS, and thus any claim against her (as opposed to against other CMS personnel) would be brought under a theory of respondeat superior, and there is no vicarious liability under § 1983. Monell v. New York City Dept. of Social Serv., 426, U.S. 658 (1978). She can be held liable only for her individual participation or because she established a policy which encouraged others in the department to act with deliberate indifference. The record contains no evidence to support either of these propositions.
Finally, to the extent that plaintiff's Complaint might have alleged any state law claim, this Court declines the exercise of supplemental jurisdiction over that claim. See 28 U.S.C. § 1367(c)(3) (discretion to decline to exercise supplemental jurisdiction when court has dismissed "all other claims over which it has original jurisdiction").
III. CONCLUSION
For the foregoing reasons, summary judgment will be granted in defendant's favor. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the defendant's motion for summary judgment; and the Court having considered the defendant's moving papers, noted that the plaintiff did not file opposition, and having carefully scrutinized the record; and for the reasons stated in the Opinion of today's date;
IT IS this day of May 1999 hereby
ORDERED that defendant's motion for summary judgment be, and hereby is, GRANTED, and final JUDGMENT is entered in favor of defendant.