    18-3017
    Gaffney v. Perelmuter

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.


                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
    the City of New York, on the 1st day of April, two thousand twenty.

    PRESENT:
               DENNIS JACOBS,
               ROBERT D. SACK,
               PETER W. HALL,
                     Circuit Judges.
    _____________________________________

    Francis Gaffney,

                             Plaintiff-Appellant,

                      v.                                      18-3017

    Brian Perelmuter, Dentist,

                             Defendant-Appellee,

    Yvonne Borchert, Dental Assistant,

                             Defendant.
___________________________________



FOR PLAINTIFF-APPELLANT:                   Francis Gaffney, pro se, Cheshire, CT.

FOR DEFENDANT-APPELLEE:                    Robert Louis Marconi, Seth Hollander,
                                           Assistant Attorneys General, for
                                           William Tong, Attorney General of the
                                           State of Connecticut, New Britain, CT.



      Appeal from a judgment of the United States District Court for the District

of Connecticut (Underhill, C.J.).

      UPON      DUE     CONSIDERATION,         IT   IS   HEREBY      ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED in part and VACATED and REMANDED in part.

      Appellant Francis Gaffney, pro se and incarcerated, appeals the district

court’s judgment granting summary judgment in favor of Appellee Brian

Perelmuter, a dentist who extracted one of Gaffney’s teeth at Cheshire

Correctional Institution. Gaffney alleged violations of his Eighth and Fourteenth

Amendment rights under 42 U.S.C. § 1983 and state law claims of negligence,

malpractice, and intentional infliction of emotional distress.   We assume the




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parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

        We review orders granting summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v.

Hartford Police Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary

judgment is proper only when, construing the evidence in the light most favorable

to the non-movant, ‘there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d

334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

   I.     Eighth Amendment Claims

        To succeed on an Eighth Amendment cruel and unusual punishment claim,

a prisoner must show that his medical condition was sufficiently serious (the

objective test) and that the defendant acted with deliberate indifference to his

medical needs (the subjective test). Brock v. Wright, 315 F.3d 158, 162–64 (2d Cir.

2003). The subjective test requires a showing that a defendant acted or failed to

act “while actually aware of a substantial risk that serious inmate harm will

result[.]” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). The subjective test


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requires “something more than mere negligence; but proof of intent is not

required[.]”   Cuoco v. Moritsugu, 222 F.3d 99, 106–07 (2d Cir. 2000) (internal

quotation marks omitted). This standard can be met with a showing of criminal

recklessness, where the “prison official knows of and disregards an excessive risk

to inmate health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Hathaway v. Coughlin (“Hathaway III”), 99 F.3d 550, 553

(2d Cir. 1996) (internal quotation marks omitted). The standard is also met where

the official’s actions involve “the unnecessary and wanton infliction of pain.”

Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (quoting Hudson v. McMillian,

503 U.S. 1, 10 (1992), and Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)).

      As an initial matter, several of the relevant facts are in dispute.       The

evidence submitted by both parties during summary judgment was minimal; it

essentially boiled down to Perelmuter’s declaration (and his own medical notes)

versus Gaffney’s declaration (and his own request forms/grievances). Critically,

Perelmuter and Gaffney dispute whether, when, and to what extent Gaffney

complained of or made Perelmuter aware of Gaffney’s pain during and after the


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extraction, and whether, when, and to what extent Perelmuter responded. These

facts are material to the deliberate indifference inquiry because they inform

whether Perelmuter recklessly disregarded Gaffney’s pain or even wantonly

inflicted unnecessary pain.       For the reasons explained below, we affirm the

dismissal of Gaffney’s claim related to Perelmuter’s choice to extract the tooth.

However, construing the evidence in the light most favorable to Gaffney, we hold

that a reasonable jury could find that Perelmuter acted with deliberate indifference

during and after the extraction.

          A. Choice to Extract 1

       Summary judgment in favor of Perelmuter was proper as to this challenge,

although on grounds not relied upon by the district court. 2 See Leon v. Murphy,


1Perelmuter is incorrect to assert that Gaffney abandoned this claim on appeal; in his
brief, Gaffney clearly challenges the decision to extract.

2 The district court ruled that any challenge to the decision to extract the tooth was
improper because the complaint did not raise any allegations concerning that decision.
This ruling is incorrect. Although the text of the complaint did not specifically challenge
Perelmuter’s decision to extract, the attachments to the complaint included request forms
in which Gaffney questioned whether extraction was necessary. These forms were
integral to Gaffney’s claims, because they showed the extent of his pain and his attempts
to seek treatment. Because these forms were part of the complaint, Perelmuter had
notice of the claims raised in them. See Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d
Cir. 2018) (“A complaint is also deemed to include any written instrument attached to it

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988 F.2d 303, 308 (2d Cir. 1993) (stating that this Court “may affirm . . . on any basis

for which there is a record sufficient to permit conclusions of law, including

grounds upon which the district court did not rely”). In Chance v. Armstrong, 143

F.3d 698 (2d Cir. 1998), we ruled that an allegation that defendants “recommended

extraction not on the basis of their medical views, but because of monetary

incentives,” constituted deliberate indifference. Id. at 704. Here, although the

evidence is conflicting, there is some evidence that Perelmuter chose extraction

because of Connecticut Department of Correction (“DOC”) policy, even though

crowns might have been the more appropriate treatment.               See id. at 703 (“In

certain instances, a physician may be deliberately indifferent if he or she

consciously chooses an easier and less efficacious treatment plan.” (internal

quotation marks omitted)). Gaffney, however, never alleged that the DOC policy

was unconstitutional, that the policy was based on monetary or other improper

incentives, or that Perelmuter’s decision to extract was based on monetary

incentives or a belief that extraction was easier. Instead, Gaffney argues only that



as an exhibit, materials incorporated in it by reference, and documents that, although not
incorporated by reference, are integral to the complaint.” (internal quotation marks
omitted)).

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the decision was incorrect (without alleging any facts about Perelmuter’s motive),

and that other dentists determined that extraction was unnecessary. See id. (“It is

well-established that mere disagreement over the proper treatment does not create

a constitutional claim.”). Gaffney thus fails to show that Perelmuter’s decision to

extract the tooth constituted deliberate indifference. Summary judgment was

proper as to this claim.

         B. Extraction

      The district court correctly held that a jury could conclude that the objective

test was met because Gaffney’s dental pain constituted a sufficiently serious

medical condition. See Brock, 315 F.3d at 163 (holding that conditions causing

pain falling “somewhere between ‘annoying’ and ‘extreme’” can be serious

medical conditions, the condition need not be “life-threatening,” and the pain need

not be “at the limit of human ability to bear”); see also Chance, 143 F.3d at 702

(holding that, in determining the seriousness of a condition, a court should

consider the existence of chronic and substantial pain).

      The district court erred, however, in holding that a reasonable jury could

not conclude that Perelmuter acted with deliberate indifference to that pain during


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the extraction.     Construed liberally, Gaffney argued that Perelmuter was

deliberately indifferent during the extraction in two distinct ways: (1) Perelmuter

knew or should have known that ten minutes was insufficient time for the

Novocain to take effect and for Perelmuter to properly extract the tooth, 3 and (2)

Perelmuter evinced conscious disregard of Gaffney’s pain during the extraction

by ignoring his cries of pain, failing to provide further pain relief, and continuing

to “dig” and “stab” the area. Viewing the evidence in the light most favorable to

Gaffney, both arguments succeed.

      First, the district court erred in ruling that Gaffney’s claim that Perelmuter

“knew or should have known” that ten minutes was insufficient time for the

procedure necessarily amounted only to a claim of negligence. This language can

also support a claim of culpable recklessness, and the record contains evidence

that could support such a finding. See Hathaway III, 99 F.3d at 553 (stating that

recklessness is shown where a “prison official knows of and disregards an excessive



3The language “should have known” suggests a negligence standard. Viewing
Gaffney’s arguments liberally, however, we read this allegation to mean that ten minutes
was so obviously an insufficient amount of time that Perelmutter must have known it
was insufficient.


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risk to inmate health or safety” (emphasis added) (internal quotation marks

omitted)). A reasonable jury could infer from the evidence (Gaffney’s declaration

about the extraction) that, in fact, ten minutes was obviously an insufficient

amount of time and that Perelmuter therefore knew that it was an insufficient

amount of time. 4 See Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138

(2d Cir. 2013) (“Officials need only be aware of the risk of harm, not intend harm.

And awareness may be proven from the very fact that the risk was obvious.” (emphasis

added) (internal quotation marks and citation omitted)). That ten minutes was

an insufficient time is further supported by the evidence of complications during

the extraction: the tooth broke in the gum and Gaffney required several follow-up

visits (including two procedures to slice the gum away from the cheek).




4Although Perelmuter argues on appeal that Gaffney did not provide any evidence to
support his claim that Novocain takes longer than ten minutes to take effect, Perelmuter
did not provide any evidence that disputes that claim, and a reasonable jury could
conclude that the risk that Novocain would not have taken effect yet was obvious.
Further, the fact that ten minutes may have been an insufficient time (and that Perelmuter
was aware it was insufficient) was further supported by Gaffney’s declaration that the
dental assistant told Perelmuter that she would reschedule the extraction because there
was only ten minutes “left” to do the procedure.


                                            9
       Second, a reasonable jury could infer from the evidence that Perelmuter

acted recklessly, or even wantonly, by ignoring Gaffney’s cries of pain and

continuing with the procedure without providing pain relief or waiting a sufficient

amount of time for the Novocain to take effect. Although the district court relied

on the fact that Perelmuter injected Gaffney with Novocain, and his notes

indicated that he prescribed pain medication after the extraction, the court failed

to consider Gaffney’s evidence that, despite the Novocain, he experienced extreme

pain during the extraction. 5 See Hathaway v. Coughlin (“Hathaway II”), 37 F.3d 63,

68 (2d Cir. 1994) (stating that, where a doctor was aware of the plaintiff’s pain, “[a]

jury could infer deliberate indifference from the fact that [the doctor] knew the

extent of [the plaintiff’s] pain, knew that the course of treatment was largely ineffective,

and declined to do anything more to attempt to improve [the plaintiff’s] situation”

(emphasis added)).




5Whether Perelmuter prescribed pain medication after the extraction is in dispute;
Gaffney declared that Perelmuter did not provide any pain relief, and the only evidence
showing that medication was prescribed was Perelmuter’s notes stating “Rx: Motrin.”
No prescription form was included in the evidence.

                                            10
      Further, the district court erred in ruling that Gaffney did not allege that he

informed Perelmuter of the pain he was experiencing; Gaffney asserted that he

yelled out, moaned and groaned, and held his knees to his chest, and a reasonable

jury could infer that Perelmuter knew from that reaction that Gaffney was in pain.

A reasonable jury could also conclude that the confluence of factors here

(proceeding with insufficient time, ignoring yells of pain, breaking the tooth,

repeatedly slipping and stabbing the area), even if considered individually would

not show deliberate indifference, taken together show that Perelmuter evinced a

conscious disregard to Gaffney’s pain and dental health during the extraction. Cf.

Crawford, 796 F.3d at 257 (holding, in a prison sexual abuse case, that “[l]ess severe

but repetitive conduct may still be cumulatively egregious enough to violate the

Constitution” (internal quotation marks omitted)).

      Finally, Perelmuter would not be entitled to qualified immunity on this

claim, because the right to be free from serious dental pain is clearly established.

See Chance, 143 F.3d at 702–04; see also Hathaway II, 37 F.3d at 68–69 (holding that a

doctor is not entitled to qualified immunity where a rational jury could find that




                                         11
the doctor was deliberately indifferent because he failed to alleviate pain and

suffering despite numerous requests).

          C. Post-Extraction Treatment

      For the same reasons described above, Gaffney’s allegations of continued

pain for the months after the extraction meet the objective test. See Brock, 315 F.3d

at 163; Chance, 143 F.3d at 702–03.

      They also meet the subjective test. Based on Gaffney’s allegations that he

complained to Perelmuter of pain in the months after the extraction, a jury could

reasonably conclude that Perelmuter was deliberately indifferent to that pain.

We have declined to adopt a rule that would “exempt general practitioners from

being found deliberately indifferent to a patient’s serious medical needs as long as

that general practitioner at some point refers the patient to a specialist, regardless

of the extent of contact that general practitioner has with the patient.” Hathaway

II, 37 F.3d at 68.    We have held instead that a “jury could infer deliberate

indifference from the fact that [the doctor] knew the extent of [the plaintiff’s] pain,

knew that the course of treatment was largely ineffective, and declined to do

anything more to attempt to improve [the plaintiff’s] situation.” Id. Here, the


                                          12
district court correctly noted that Perelmuter saw Gaffney several times after the

extraction, attempted to separate the attachment of the cheek and gum, and

eventually submitted (seven months after the extraction) a “Utilization Review

Committee” (“URC”) request to have a specialist address Gaffney’s continued

numbness.    Gaffney also asserted, however, that he complained of pain to

Perelmuter in the months after the extraction—including by submitting a request

form complaining of pain on June 24, 2015 (which he asserted was ignored); by

telling Perelmuter that he was experiencing pain during the June 30 visit; by

submitting a request form on July 31 complaining that he bled for four hours after

that visit (which he asserted was ignored); and by submitting a request form on

December 15 complaining of continuing pain. If the jury were to credit these

assertions and find that Perelmuter failed to provide Gaffney with any pain relief

as a result of these complaints, it could reasonably infer that Perelmuter was

consciously disregarding Gaffney’s pain despite having eventually made a URC

request that Gaffney see an outside specialist to address the numbness. For the

same reasons discussed above, Perelmuter would not be entitled to qualified




                                       13
immunity on this claim.      Summary judgment in favor of Perelmuter was

improper as to Gaffney’s post-extraction claim.

      We have reviewed the remainder of Gaffney’s arguments of error and find

them to be without merit.    Accordingly, the judgment of the district court is

VACATED and REMANDED in part with respect to the Eighth Amendment

claims concerning the extraction and post-extraction treatment and AFFIRMED in

part with respect to the remaining claims.



                                     FOR THE COURT:
                                     Catherine O=Hagan Wolfe, Clerk of Court




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