Petitioner, an inmate in the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this CPLR Article 78 proceeding to challenge Respondent's determination rejecting dental and medical treatment for Petitioner's periodontal disease. Petitioner also challenges the constitutionality of the New York State Department of Correctional Services Health Services Policy, particularly relating to the treatment of periodontal disease.

As a result of this condition, Petitioner required the extraction of tooth No.30 (a molar) due to bone loss and infection. Petitioner's grievance filed on February 17, 2014 avers that his periodontal involvement requires antibiotic treatment to kill an infection in his mouth, which is not offered by Respondent.

On February 20, 2014, one of Petitioner's dental providers, Ralph Schmauss, D.D.S., forwarded a memorandum and the relevant dental guidelines to Chris Sputore of the Inmate Grievance Program. This memorandum stated the following:

As a courtesy to you I tried to explain to Mr. Moore how periodontal disease is treated; usually by a Periodontist, but not in a Correctional setting.

According to the Dental Guidelines, periodontal care has the lowest priority as time permits. Routine care consists of recognition of the disease and basic treatment—cleaning the teeth, yearly.

These dental guidelines are contained in the New York State Department of Correctional Services Health Services Policy. The section Dr. Schmauss was referring to was Section Number 2.01 (1) (D) (3) (page 6 of 20), which states that "Routine Treatment (Class 2)" is "treatment of a condition not of an urgent nature but requiring preventative and correctional measures, including . . . periodontal disease — not extensive or advanced." However, there is also Section Number 2.01 (1) (D) (2) which provides for "Essential Treatment (Class 3)" which is "[t]he early treatment of conditions of an urgent nature, including: . . . extensive or advanced periodontal disease . . . ."

On or about February 28, 2014, Petitioner's grievance was denied for the reasons stated in Dr. Schmauss' memorandum. Petitioner appealed this denial to the superintendent, which was denied on March 19, 2014, again for the reasons stated in Dr. Schmauss' memorandum. Petitioner filed his last appeal on March 24, 2014.

On or about July 9, 2014, the Central Office Review Committee (hereinafter "CORC") denied Petitioner's appeal. A hearing was conducted, but neither party attached a transcript to their pleadings. The decision stated "the treatment of periodontal disease that is not extensive or advanced is considered routine treatment, in accordance with Health Services Policy Manual #2.01. Treatment is based on priority; emergency care has top priority, followed by essential and routine care." Further, the decision concluded by stating that "CORC has not been presented with sufficient evidence to substantiate a revision of established procedures, improper dental care, or malfeasance by staff."

Up and until this point, the Court finds that the record is devoid of any attempt to ascertain the severity of Petitioner's periodontal disease. Namely, whether Petitioner is suffering from extensive or advanced periodontal disease—which requires "urgent care"—or not extensive or advanced—which provides for routine care. The closest attempt was Dr. Schmauss' memorandum, which only regurgitates the guidelines but does not explicitly classify whether Petitioner's periodontal involvement is advanced or extensive, or non-urgent. As such and based on the record to this point, Respondent's denials appear that they may be arbitrary and capricious and not based on any evidence—let along substantial evidence.

However, Petitioner's dental chart reveals a different story. This was attached in Petitioner's "Response to the Answer," wherein Petitioner claims that Respondent's counsel and DOCCS was in possession of these records now and for the decisions, and deceptively failed to address them with the Court. The dental records reveal periodontal involvement as early as May 25, 2011. The [*2]extraction of tooth #30 was performed on February 24, 2014. There is a note on July 7, 2014 requesting a complete examination "ASAP." Dr. Schmauss performed such examination on July 21, 2014. His handwriting is difficult to decipher. But there are some legible components, including parts of the third bullet (hyphen) on the last page of the dental chart. The relevant legible portion provides there is "bone loss indicative of mild periodontitis[.]" Subsequently, three other treatment dates were listed all providing for routine care including cleanings and flossings.

Under New York law, "[t]o establish an unconstitutional denial of medical care for an inmate under the 8th Amendment of the U.S. Constitution, it must be shown that there has been deliberate indifference to [the inmate's] serious medical needs.'" (Matter of Allah v. White, 243 AD2d 913, 913 [3d Dept. 1997] quoting Matter of Singh v. Eagen, 236 AD2d 654, 655 [3d Dept. 1997].) Therefore, "to prevail in this CPLR article 78 proceeding, petitioner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." (Matter of Ronson v. Commissioner of Correction, 112 AD2d 488, 489 [3d Dept. 1985] [citing Estelle v. Gamble, 429 US 97 [1976]].)

Here, Petitioner has failed to make the requisite showing. The last dental treatment note, which was provided by Petitioner and considered by Respondent, noted that Petitioner suffered from "mild periodontitis." The Court cannot say that "mild periodontitis" is synonymous with "essential treatment" which is of an "urgent nature" including "extensive or advanced periodontal disease" as required by section Number 2.01 (1) (D) (2) of the New York State Department of Correctional Services Health Services Policy. As such, the Court also finds these guidelines are not violative of the U.S. Constitution.

The Court has considered Petitioner's other argument and found that they are similarly unavailing or rendered academic.

Thereby, it is hereby

ORDERED and ADJUDGED, that the Petition is dismissed and all relief requested therein is denied in its entirety.

This constitutes the Decision/Order/Judgment of the Court. Please note that a copy of this Decision/Order/Judgment along with the original papers are being filed by Chambers with the County Clerk. The original Decision/Order/Judgment is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED AND ADJUDGED.