                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

Gillespie v. Hogan
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4212




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Recommended Citation
"Gillespie v. Hogan" (2006). 2006 Decisions. Paper 1020.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1020


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DPS-164                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-4212
                                  ________________

                                  TONY GILLESPIE,
                                             Appellant

                                            v.

                 MR. HOGAN; DENTIST CHRISTOPHER PALUCH,
                             YORK COUNTY JAIL
                    ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civ. No. 02-cv-01033)
                      District Judge: Honorable Edwin M. Kosik
                    _______________________________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   March 23, 2006

         Before: ROTH, FUENTES AND VANANTWERPEN, Circuit Judges.

                                 (Filed: May 31, 2006)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Tony Gillespie appeals the dismissal of his civil rights complaint by the United

States District Court for the Middle District of Pennsylvania. We will dismiss the appeal
pursuant to 28 U.S.C. 1915(e)(2)(B).

                                             I.

       According to Gillespie’s complaint, between November 2000 and November 2001

Gillespie was confined at York County Jail. During that time, the dentist at the jail,

Christopher Paluch, removed one of Gillespie’s teeth. He was subsequently transferred

to SCI-Mahanoy, where he experienced “major” pain in his gums and mouth and sought

out dental care several times. Gillespie underwent oral surgery to remove a fragment of

decayed tooth and was informed by the SCI-Mahanoy dentist that, during the earlier

procedure, Paluch had neglected to fully remove Gillespie’s decaying tooth, part of

which had remained under his gum line for over a year. Gillespie also alleges that Paluch

never inquired about his pre-existing health problems, and that as a diabetic he has never

fully healed from the oral surgeries.

       In his initial complaint, Gillespie did not identify the jail dentist, who was merely

referred to as “John Doe.” The District Court partially granted the defendants’ motion to

dismiss, leaving only the John Doe dentist as a defendant. On February 26, 2004,

Gillespie identified the dentist as Christopher Paluch, D.M.D., and the Court

subsequently ordered process to issue. Paluch filed a motion to dismiss claiming, inter

alia, that Gillespie’s suit with regard to him was time-barred because he was not named

as a defendant until nearly three years after Gillespie’s March 6, 2001, tooth extraction –

well beyond the two-year statute of limitations.

       The Magistrate Judge agreed and Gillespie objected, claiming that the discovery
rule dictated that the limitation period began to run no sooner than April 25, 2002, the

date he learned of Paluch’s mistake from the SCI-Mahanoy dentist. The District Court

adopted Gillespie’s discovery rule analysis, but rejected his proposed date, finding that

because Gillespie was experiencing pain in his gums and mouth when he arrived at SCI-

Mahanoy (likely sometime in November 2001), the statute of limitations began to run

well before April 25, 2002. Gillespie appealed the District Court’s dismissal.

                                             II.

       When reviewing the District Court’s grant of motion to dismiss, we must accept as

true all factual allegations in the complaint, and all reasonable inferences that can be

drawn from them. See Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). With

regard to the statute of limitations, only where “the facts are so clear that reasonable

minds cannot differ” may “the commencement period . . . be determined as a matter of

law.” Debiec v. Cabot Corp., 352 F.3d 117, 129 (citation omitted).

       Applying that standard, we are reluctant to conclude that Gillespie had

experienced mouth pain by February 26, 2002 (two years before February 26, 2004, the

date Gillespie named Paluch as a defendant adjusting for the prison mailbox rule). We

need not resolve that question here, however, because Gillespie’s complaint fails to state

a claim upon which relief can be granted. To prevail under 42 U.S.C. § 1983, Gillespie

must show that the Paluch was deliberately indifferent to a serious medical need. See

Estelle v. Gamble, 429 U.S. 97 (1976). Allegations of negligent treatment are medical

malpractice claims, not constitutional violation claims. Id. at 105-06.
       Though Gillespie has clearly endured significant hardship, his allegations do not

amount to deliberate indifference concerning his tooth extraction. See Isenberg v. Prasse,

433 F.2d 449 (3d Cir. 1970) (rejecting claim that malpractice by dentist while extracting

teeth constitutes unconstitutional cruel and unusual punishment). The same is true with

regard to Paluch’s failure to ascertain Gillespie’s status as a diabetic: a physician’s

failure to review or take a patient’s medical history may be negligence, but it is not

deliberate indifference. See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 525 (9th

Cir. 1999); Steward v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999); Williams v. O’Leary,

55 F.3d 320, 324 (7th Cir. 1995); Sanderfer v. Nichols, 62 F.3d 151, 155 (6th Cir. 1995).

       Accordingly, we will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B).
