Opinion
No. 96 CIV. 1312(SS).
June 16, 1997
APPEARANCES: Tyrone Holton, Pro Se, Stormville, New York.
Dennis C. Vacco Attorney General for the State of New York, New York, New York, Avi Lew Of Counsel.
MEMORANDUM OPINION AND ORDER SOTOMAYOR
* 1 Pro se plaintiff, Tyrone Holton, an inmate at Green Haven Correctional Facility, brings this action for monetary damages under 42 U.S.C. § 1983. In an amended complaint, which was submitted pursuant to Chief Judge Griesa's order dated February 23, 1996, he alleges that defendants delayed, denied or interfered with his dental care in violation of the Eighth Amendment.
Defendants, Drs. Fraitellone and Johnson (a/k/a John Doe), who are both employed at Sing Sing Correctional Facility ("Sing Sing"), move to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) on the grounds that 1) plaintiff's claims are barred by the Eleventh Amendment, 2) the allegations in the complaint fail to state a claim upon which relief can be granted, and 3) Dr. Fraitellone is qualifiedly immune from suit.
Plaintiff filed an opposition to defendants' motion entitled "Respond to Defendant's Answer" ("Pla.Resp.") to which defendants, "opted not to reply." See Defendant's letter to this Court dated January 23, 1997. For the reasons to be discussed, defendant Johnson's motion to dismiss the amended complaint is granted but defendant Fraitellone's motion to dismiss is denied.
BACKGROUND
The following information is set forth in plaintiff's complaint. Plaintiff suffers from "a dislocation in [his] jaw" which was previously broken in two places, causing "lock jaw," "crackling" and prohibiting him from keeping his mouth still. He also suffers from "pain the side of [his] face" with "complications" in his ear and in his head," periodontitis, 15 missing teeth and difficulty eating. According to plaintiff, prior to his incarceration at Sing Sing, ten different oral surgeons advised him that he would need an operation to correct his problems.
At Sing Sing, plaintiff was treated by Dr. Johnson, a dentist, who "personally scheduled" an appointment for plaintiff with Dr. Fraitellone, an oral surgeon. There is no indication that plaintiff had been seen by Dr. Johnson prior to this referral. On August 16, 1995, plaintiff was seen by Dr. Fraitellone who refused to take x-rays or examine him. Instead, Dr. Fraitellone referred plaintiff back to Dr. Johnson for extraction of all remaining teeth even though there was "nothing wrong" with them. As such, plaintiff asserts that the "oral surgeon did not do what a reasonable prudent physician would have done under the circumstances" and "dangerously delayed" his treatment and follow-up.
Plaintiff's Response indicates that he filed a grievance complaint concerning Dr. Fraitellone's inadequate care. Dr. Johnson, who is the Dental Director at Sing Sing and was present at plaintiff's appointment with Dr. Fraitellone, responded to plaintiff's grievance by informing him that after reviewing his records and consulting with the oral surgeon (apparently Dr. Fraitellone), he determined that the oral surgeon's treatment plan was appropriate. Dr. Johnson also indicated a willingness to schedule an appointment with plaintiff to discuss the treatment plan, but plaintiff was transferred to Green Haven Correctional Facility before such a meeting could take place.
Generally, I would not consider matters outside of the pleadings in deciding a motion to dismiss. However, in light of plaintiff's pro se status and the many ambiguities in the complaint, I have considered the allegations set forth in Plaintiff's Response so as to understand plaintiff's allegations with regard to Dr. Johnson.
DISSCUSSION
*2 The Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. All that is required is a "a short plain statement of the claim" giving the defendant notice of the nature of the claim and the grounds upon which it rests. See Leatherman v. Tarrant County Narcotics Intelligence Coord. Unit, 507 U.S. 163, 164 (1993); Fed.R.Civ.P. 8(a)(2). The complaint should be dismissed only "if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
When considering defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6), I must "assess the legal feasibility of the complaint," Smith v. O'Conner, 901 F.Supp. 644 (S.D.N.Y. 1995), accepting as true the factual allegations in the complaint and construing all reasonable inferences in plaintiff's favor. See generally Leatherman v. Tarrant County Narcotics Intelligence Coord. Unit, 507 U.S. at 164; Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994). Moreover, where, as here, plaintiff is proceeding pro se, I must "read the supporting papers liberally and . . . interpret them to raise the strongest argument that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). In so doing, I must hold plaintiff to a pleading standard which is "less stringent than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law, deprived him of a right, privilege or immunity secured by the Constitution, laws or treaties of the United States. 42 U.S.C. § 1983; Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert. denied, 512 U.S. 1240 (1994). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress of the deprivation of rights established elsewhere." Sykes, 13 F.3d at 519 (citations omitted). Liberally construing the allegations in the instant complaint, plaintiff alleges that defendants intentionally delayed, denied or interfered with his access to medical treatment in violation of his Eighth Amendment rights.
I. Sufficiency of Plaintiff's Factual Allegations A. Official Capacity Claims
Defendants assert that the instant complaint is barred by the Eleventh Amendment because they were acting in their official capacities with regard to the claims alleged and thus are immune from suit. It is unclear, however, whether plaintiff is suing defendants in their official or in their individual capacities. In a case such as this, where doubt exists as to whether an official is sued in his individual or official capacity, the course of the proceedings will generally resolve the ambiguity by revealing the nature of the liability sought to be imposed. Kentucky v. Graham, 473 U.S. 159, 167 n. 4 (1985) (citing Brandon v. Holt, 469 U.S. 464, 469 (1985)). It is improper at an early stage in the proceedings automatically to construe a Complaint as focusing on one capacity and not the other. Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.), cert. denied, 510 U.S. 1012 (1993). Accordingly, I assume for the purposes of this motion that plaintiff's claims are asserted against defendants in both their individual and their official capacities.
*3 To the extent that plaintiff asserts claims for monetary damages against the defendants in their official capacities, these claims must be dismissed. A claim against an employee of the New York State Department of Corrections for actions taken in his or her official capacity is, in effect, a suit against the State. Absent the State's waiver or consent, neither of which have been given here, the Eleventh Amendment bars from federal court all section 1983 suits for legal or equitable relief brought by citizens against the State and its agencies. Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Edelman v. Jordan, 415 U.S. 651 (1974); See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming Edelman, § 1983 does not override the immunity granted to States under the Eleventh Amendment). Thus, plaintiff's claim for monetary damages from defendants in their official capacities is barred under the Eleventh Amendment. See generally Dube v. State Univ. of New York, 900 F.2d 587, 594-95 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991).
Furthermore, because plaintiff has been transferred to Green Haven Correctional Facility, his request for injunctive relief requiring defendants, who are both employed at Sing Sing, to provide him with oral surgery, is now moot. See generally Courts v. Coombe, 95 Civ. 2350(DC), 1996 WL 312357, at *2 (S.D.N.Y. June 11, 1996) (citing Armstrong v. Ward, 529 F.2d 1132, 1135 (2d Cir. 1976)) ("The mere possibility that [plaintiff] may be returned to [the correctional facility where the incidents at issue arose] at some point in the future does not present a sufficient case or controversy that the court can presently adjudicate."). Thus, I need not address plaintiff's claims for injunctive relief.
Having dismissed plaintiff's claims against defendants in their official capacities, I must now turn to plaintiff's claims for monetary damages asserted against defendants in their individual capacities. See generally Hafer v. Melo, 502 U.S. 21, 30-31 (1991) ("[T]he Eleventh Amendment does not erect a barrier against suits to impose 'individual and personal' liability on state officials under § 1983." (citation omitted)).
B. Deliberate Indifference to Plaintiff's Medical Needs
Under the Eighth Amendment, a prisoner has the right to be free from the "unnecessary and wanton infliction of pain," which includes the right to be free from deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). In general, "deliberate indifference" is evidenced by proof that corrections personnel intentionally denied, delayed access to or interfered with prescribed treatment. Estelle, 429 U.S. at 104-106; Gill v. Mooney, 824 F.2d 192, 195-96 (2d Cir. 1987); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). To state a claim for defendants' deliberate indifference to his medical needs, plaintiff must allege both an objective and a subjective component to his claim. See Estelle, 429 U.S. 97.
1. Objective Prong
*4 To support the objective component of a deliberate indifference claim, "the alleged deprivation must be 'sufficiently serious' in the sense that 'a condition of urgency, one that may produce death, degeneration, or extreme pain' exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citing Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). While plaintiff need not allege that he is facing imminent death, he must allege more than a "condition which many people suffer from and function [with]" on a daily basis. Davidson v. Scully, 914 F.Supp. 1011, 1015 (S.D.N.Y. 1996). It has been held that a plaintiff's "allegation of increased tooth sensitivity and attendant pain experienced over an extended period of time identify a medical need which a reasonable person would consider to be serious. . . ." Reynolds v. Ternullo, No. 82 Civ. 4018(CSH), 1985 WL 2153, at * 2 (S.D.N.Y. July 26, 1985); see also Dean v. Coughlin, 623 F.Supp. 392, 404 (S.D.N.Y. 1985), vacated and remanded on other grounds, 804 F.2d 207 (2d Cir. 1986) (Unlike the need for "prophylactic care," "[i]nmates' other dental needs-for fillings, crowns and the like-are serious medical needs as the law defines that term."). Likewise, pain associated with the need for corrective surgery may support a "serious medical need." Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994), cert. denied, 115 S.Ct. 1108 (1995). In the instant case, plaintiff alleges that he suffers from "a dislocation in [his] jaw from a broken jaw in two places," "lock jaw," "crackling" in his jaw, and "pain [in or on] the side of [his] face which causes complications in [his] ear [and] head," and that he "can't keep [his] mouth still," has difficulty eating, and needs oral surgery to correct his problems. As these allegations clearly suggest the existence of a degenerative and painful condition, I find that plaintiff has sufficiently plead the objective prong of a deliberate indifference claim to withstand defendants' motion to dismiss.
2. Subjective Prong
To support the subjective component of his claim, plaintiff need not allege that defendants failed to act believing that harm would actually befall him. Hathaway v. Coughlin, 99 F.3d at 553-54 ("The subjective element of deliberate indifference 'entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Rather, "it is sufficient if plaintiff alleges that [the doctor] failed to act despite his knowledge of a substantial risk of harm to [plaintiff's] health." Id; See also Dean v. Coughlin, 623 F.Supp. at 401 ("In Estelle, the Court ruled that deliberate indifference can be manifested by a doctor's refusal to administer needed treatment . . ."); Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 183 (N.D.N.Y. 1996) (citing Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)) ("Although one isolated failure to treat, without more, is ordinarily not actionable, it 'may in fact rise to the level of a constitutional violation if the surrounding circumstances suggest a degree of deliberateness, rather than inadvertence, in the failure to render meaningful treatment.'"). Thus, although plaintiff may not sustain a claim under section 1983 for "mere medical malpractice," Estelle, 429 U.S. at 106, insofar as he alleges conduct which involves "culpable recklessness, i.e., an act or failure to act by the prison doctor that evinces 'a conscious disregard of a substantial risk of serious harm," plaintiff's allegations may be sufficient to state a claim under 42 U.S.C. § 1983. Hathaway v. Coughlin, 99 F.3d at 553 ("The subjective element requires a state of mind that is the equivalent of criminal recklessness; namely, when 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.")
*5 With regard to Dr. Fraitellone, I find plaintiff's allegations sufficient to withstand a motion to dismiss. Plaintiff alleges that despite his previously having been advised by ten different oral surgeons that surgery was necessary to correct his medical problems, Dr. Fraitellone "refus[ed] to take x-rays or check [plaintiff] out" and instead, simply referred him back to Dr. Johnson for the unnecessary extraction of his remaining teeth. Liberally construing these allegations in the light most favorable to plaintiff, there is a factual question as to whether Dr. Fraitellone acted with sufficient recklessness with regard to his diagnosis and treatment of plaintiff's condition to support a claim for deliberate indifference to plaintiff's medical needs. See generally Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (Allegations suggesting that a doctor's conduct was "a substantial departure from an accepted professional judgment, practice or standard" is sufficient to support a deliberate indifference claim.); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) ("A three week delay in dental care, coupled with knowledge of the inmate patient's suffering, can support a finding of an Eighth Amendment violation under section 1983."); cf. Ford v. Dr. Hetschinof, 79 Civ. 6895(CSH), 1984 WL 1319, at *4 (S.D.N.Y. Dec. 10, 1984) (granting summary judgment where plaintiff "failed to raise a material issue of fact suggesting that the defendant doctors knew that he had serious medical needs and yet refused to treat him.). Whether Dr. Fraitellone's action (or inaction) with regard to plaintiff's medical condition was the result of a medical opinion, negligence, inadvertent failure or a reckless disregard for plaintiff's medical needs cannot be determined at this stage of the proceedings. Thus, I find that plaintiff's amended complaint is sufficient to withstand Fraitellone's motion to dismiss. This determination, however, does not preclude defendant, if appropriate, from reasserting this position on a motion for summary judgment after plaintiff has been given an opportunity for discovery.
On the other hand, plaintiff's claims against Dr. Johnson are dismissed. Plaintiff alleges that upon examining him, Dr. Johnson referred him to Dr. Fraitellone and relied upon Dr. Fraitellone's opinion with regard to plaintiff's condition. Although plaintiff may be dissatisfied with the care that he received from Dr. Fraitellone, under the circumstances alleged here, which do not suggest any unnecessary delay between Dr. Johnson's initial examination and the referral to Dr. Fraitellone, any participation in or interference with Dr. Fraitellone's examination and assessment of plaintiff's condition, or any recklessness in referring plaintiff to Dr. Fraitellone rather than another oral surgeon, plaintiff's allegations are insufficient to state a claim against Dr. Johnson. See generally Hathaway, 37 F.3d at 67 (recognizing that under some circumstances a doctor's referral of a plaintiff-patient to a specialist may demonstrate that s/he did not violate plaintiff's constitutional rights, but "declin[ing] to adopt a rule that in effect 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 the general practitioner has with the patient."); see also Gomm v. DeLand, 729 F.Supp. 767, 782 (D.Utah 1990), aff'd, 931 F.2d 62 (10th Cir. 1991) (Prison policy of obtaining a second opinion before performing surgery prescribed by private physician was not unconstitutional where it did not result in unreasonable delay for the prisoner).
*6 To the extent plaintiff claims that Dr. Johnson, as a supervisory official, is liable for Dr. Fraitellone's alleged wrongdoing, his claim must also be rejected. Supervisory officials are responsible for the wrongs of their subordinates if they have "actual or constructive notice of the unconstitutional practices and demonstrate 'gross negligence' or 'deliberate indifference' by failing to act." Al-Jundi v. Estate of Nelson Rockefeller, 885 F.2d 1060, 1066 (2d Cir. 1989) (citing Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989)). A plaintiff may hold a defendant liable for actions taken in a supervisory role where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [citizens] by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d at 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). Plaintiff may not, however, base liability for damages in a § 1983 action on the doctrines of respondeat superior or vicarious liability. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978); Al-Jundi, 885 F.2d at 1065; Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973), cert. denied, 414 U.S. 1033 (1973).
Even assuming that upon reviewing plaintiff's grievance concerning the adequacy of Dr. Fraitellone's care, Dr. Johnson should have established a different treatment plan or had plaintiff's case reviewed by a specialist other than Dr. Fraitellone, nothing in the complaint suggests that Dr. Johnson was deliberately indifferent to plaintiff's medical needs or deprived plaintiff of his constitutional rights by failing to remedy the wrong. Dr. Johnson reviewed plaintiff's grievance and, despite finding it to be without merit, scheduled a visit with him to discuss the treatment plan. Plaintiff does not suggest that Dr. Johnson conducted a "superficial investigation" or demonstrated "uncritical acceptance" of Dr. Fraitellone's opinion. See Hogan v. Franco, 896 F.Supp. 1313, 1325 (N.D.N.Y. 1995). Moreover, even assuming that the review was less than adequate, Dr. Johnson could not mitigate the alleged constitutional deprivation of plaintiff's rights. See generally Young v. Kihl 720 F.Supp. 22, 23 (W.D.N.Y. 1989) ("Personal involvement of a supervisory official . . . include[s] a failure to remedy a wrong after learning of such . . . with the caveat that the wrong must have been ongoing or otherwise have been capable of mitigation at the time the supervisory official was apprised thereof. (Citations omitted)). Plaintiff's condition required the services of an oral surgeon and thus, Dr. Johnson could not personally provide the required treatment. To the extent that Dr. Johnson could have provided plaintiff with other treatment options, plaintiff's transfer, not Dr. Johnson's indifference, interfered with the potential resolution of the grievance.
*7 Whether Dr. Johnson should have sought a second opinion is a close question. Obtaining a second opinion may be considered wise, but it is not generally required under the Eighth Amendment. See generally Marc J. Posner, The Estelle Medical Professional Judgment Standard: The Right of Those in State Custody to Receive High-Cost Medical Treatments, 18 Am. J.L. Med. 347 n. 101 (1992) (A prisoner's rights under Estelle "would not seem to encompass second opinions or choice of doctors or treatments."); see also Turner v. Sina, 62 F.3d 1419 (unpublished), 1995 WL 417627, at — 3 (7th Cir. July 13, 1995) ("The plaintiff is not constitutionally entitled to additional diagnostic tests, nor to a second opinion by another specialist."). However, at least one commentator has suggested that where a plaintiff has been provided with constitutionally inadequate medical care, he might be entitled to a second opinion. See James J. Gobert Neil P. Cohen, Rights of Prisoners 341 (Shepard's/McGraw-Hill, Inc., 1981) ("[p]risons cannot be expected to duplicate the range of medical services available outside of prison. In particular, prisoners might be denied their physician of choice, second opinions, access to specialists, and the right to select from alternative treatment modalities as long as the medical care actually provided meets constitutional requirements."). Nevertheless, nothing in the instant complaint suggests that Dr. Johnson was deliberately indifferent to plaintiff under the circumstances presented. Likewise, even if I were to permit plaintiff to amend his complaint to include those allegations contained in Plaintiff's Response, namely, that Dr. Johnson, as the Director of Dental Services, was present at (but is not alleged to have participated in) Dr. Fraitellone's examination, reviewed plaintiff's grievance concerning the adequacy of Dr. gFraitellone's care, advised plaintiff that based upon both the information in the file and his consultation with an oral surgeon (presumably Dr. Fraitellone) he believed that Dr. Fraitellone had recommended the appropriate course of treatment, and indicated that he would schedule plaintiff for an appointment to discuss Dr. Fraitellone's findings, those allegations simply do not suggest the degree of indifference to or involvement with plaintiff's medical needs sufficient to support a cognizable violation of the Eighth Amendment in this action. Thus, plaintiff's claims against Dr. Johnson are dismissed.
Because I have found that plaintiff's allegations are sufficient to state a claim against defendant Fraitellone, I must now examine whether Fraitellone is entitled to qualified immunity. See generally Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647, 652 (2d Cir. 1993) (citing Siegert v. Giley, 111 S.Ct. 1789 (1991)).
III. Qualified Immunity
Qualified immunity may be asserted in a § 1983 action by state or local officials who have been sued in their individual capacities for violating a plaintiff's federally protected rights in the course of carrying out an executive or administrative function. It protects defendant officials "from liability for civil damages insofar as [the defendant official's] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); accord, Hunter v. Bryant, 112 S.Ct. 534 (1991); Malley v. Briggs, 475 U.S. 335 (1986). "A government official has qualified immunity from liability for damages based on his official acts as long as those acts violate no clearly established statutory or constitutional right." Young v. Selsky, 41 F.3d 47, 54 (2d Cir. 1994).
*8 In making the determination of whether a right is clearly established, only the case law of the Second Circuit and the Supreme Court is relevant. See Richardson v. Selsky, 5 F.3d 616, 623 (2d Cir. 1993) ("district court decision does not 'clearly establish' the law, even in its own circuit"); Russell v. Scully, 15 F.3d 219, 223 (2d Cir. 1993) (looking only to case law of the Supreme Court and Second Circuit). Furthermore, even where rights were clearly established, defendant officials may still be exempt from liability if it was objectively reasonable for them to believe that their acts did not violate those rights. Anderson v. Creighton, 483 U.S. 635, 638 (1987). In determining whether the rights asserted by plaintiff were "clearly established," three factors must be considered:
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.
Wright v. Smith, 21 F.3d 496, 500 (2d Cir. April 6, 1993) (citing Benitez v. Wolff, 985 F.2d 662, 666 (2d Cir. 1993)); Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962 (1992). In addition, this Court cannot disregard relevant legal authority regarding qualified immunity even if that authority is not brought to its attention by defendants. Elder v. Holloway, 510 U.S. 510, 516 (1994).
It is clear under Anderson, 483 U.S. 635, that any determination of qualified immunity must evaluate the specific federal right alleged to have been violated in light of the particular factual circumstances. It is not sufficient, for example, to talk about a "clearly established" right to dental care under the Eighth Amendment. Rather, the proper inquiry is whether the defendant's specific conduct violated a clearly established principle of the right to dental care under the Eighth Amendment. See generally Id. at 639. The Court in Anderson stated that:
The right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law, the unlawfulness must have been apparent.
Id. at 640. In this context, however, a finding of qualified immunity is improper where there are factual issues in dispute. See Moffitt v. Town of Brookfield, 950 F.2d 880 (2d Cir. 1991).
Dr. Fraitellone does not, nor can he, assert that plaintiff's Eighth Amendment right to treatment of his medical or dental condition was not clearly established. It has long been established that a prison official violates a prisoner's Eighth Amendment right to be free from cruel and unusual punishment when the official interferes with, delays or refuses to treat a serious medical need. Instead, he suggests that his actions were "objectively reasonable" and that his good faith "simply cannot be doubted." I find this argument to be premature. At the present time, there exist factual questions regarding Dr. Fraitellone's care of plaintiff and whether his conduct violated clearly established legal and professional norms. For example, the answers to the questions of what plaintiff told Dr. Fraitellone about his condition (and when); what circumstances informed Dr. Fraitellone's treatment decisions with regard to plaintiff; and, whether Dr. Fraitellone was deliberately indifferent to plaintiff's needs when he advised him to have all of his teeth pulled without an x-ray given that surgery had been previously recommended by ten other oral surgeons, are all unclear at this stage of the proceedings. Accordingly, on these papers, I cannot determine whether it was objectively reasonable for Dr. Fraitellone to believe that his acts were lawful. To the extent that defendant relies upon plaintiff's failure to provide specific allegations or direct evidence of defendant's culpable state of mind, he misapprehends the nature of a motion to dismiss. Although Dr. Fraitellone may be able, upon a motion for summary judgment, to demonstrate that the particular factual circumstances of this case made it "objectively reasonable" for him to believe that his actions were lawful with regard to plaintiff, his attempt to do so on this motion under Fed.R.Civ.P. 12(b)(6) is premature and runs afoul of Fed.R.Civ.P. 8 and 9. See generally Blue v. Koren, 72 F.3d 1075, 1083 (2d Cir. 1995). Therefore, Dr. Fraitellone's motion to dismiss based upon qualified immunity is denied.
CONCLUSION
*9 Defendant Johnson's motion to dismiss is GRANTED. Defendant Fraitellone's motion to dismiss is DENIED. A conference is scheduled for July 25, 1997, 2:00 pm, at which time defense counsel will advise the Court of the status of discovery in this action, including outstanding discovery requests with firm time schedules for their completion, and proposed dates for depositions. By July 15, 1997, plaintiff is to write to the Court advising the Court of the discovery he believes still outstanding and setting forth any additional discovery he wishes to take in the action.
SO ORDERED: