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June 20, 1997


The opinion of the court was delivered by: DUBOIS


 JUNE 20, 1997

 This matter is before the Court on the Motion for Summary Judgment of defendant, Dr. Ralph Dendler. The case arises out of a claim by plaintiff, an inmate at the State Correctional Institution at Mahanoy at the time in question, that defendant, a dentist, violated plaintiff's civil rights in connection with the treatment of plaintiff's dental problems.

 Plaintiff asserts federal claims under 42 U.S.C. §§ 1981, 1983, 1985 and 1986. In addition, he makes two state law claims. The first is a claim for negligence and gross negligence, treated by the Court as a medical malpractice claim. The second is a claim for assault and battery.

 The Court has jurisdiction over plaintiff's federal claims pursuant to 28 U.S.C. § 1331. The Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).

 For the reasons set forth below, defendant's Motion for Summary Judgment will be granted in part and denied in part. Moreover, the Court will dismiss several of plaintiff's state law claims pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) for failure to state a claim upon which relief can be granted.


 A. Facts

 Plaintiff's claims are based on three visits to defendant for dental care in 1995. The first visit took place on August 29, 1995, at which time defendant filled two of plaintiff's teeth. The second and third visits were both in September. Defendant pulled a tooth from plaintiff's upper jaw on September 13, 1995. Plaintiff alleges that defendant pulled the wrong tooth at that time, and that the tooth causing the problems that led to that visit was adjacent to the tooth that was pulled. A tooth in plaintiff's lower jaw was pulled during a visit on September 27, 1995. During the extraction of that tooth, the tooth broke and defendant was unable to remove the roots of that tooth from plaintiff's jaw. Plaintiff also alleges that while extracting the tooth that broke, defendant chipped one of plaintiff's top teeth and almost broke plaintiff's jaw.

 The Amended Complaint contains six claims arising from the above described dental treatment. Plaintiff requests compensatory and punitive damages.

 B. Claims

 The six claims set forth in the Amended Complaint are as follows:

 Count I is a civil rights claim under 42 U.S.C. § 1983 in which plaintiff alleges a violation of the Eighth Amendment by reason of defendant's deliberate indifference to plaintiff's dental needs.

 Count II alleges defendant subjected plaintiff to "unlawful and malicious physical and verbal abuse" that was "motivated by racial animus" and that defendant's actions deprived plaintiff of his right to full and equal benefits of the law as enjoyed by white citizens in violation of the Fourteenth Amendment and 42 U.S.C § 1981.

 Count III alleges that defendant violated 42 U.S.C. § 1985 by depriving plaintiff of the privileges, immunities and equal protection guaranteed by the Constitution and laws of the United States. The privileges plaintiff was allegedly denied include: (1) The right to be free from "cruel and unusual punishment; (2) withholding adequate medical care; (3) negligence and gross negligence; and (4) performing surgery that he [Dendler] was not qualified to perform."

 Count IV alleges that defendant failed to exercise reasonable diligence in violation of 42 U.S.C § 1986. To proceed under that statute a claimant must offer evidence of a violation of 42 U.S.C § 1985. Thus, the Court will treat Count IV as alleging a failure to exercise reasonable diligence in trying to prevent the acts complained of in Count III.

 Finally, the Court notes that plaintiff sets forth two state law claims in paragraph two of the Amended Complaint. His first state law claim is based on negligence and gross negligence. The Court will treat that claim a claim of medical malpractice. Plaintiff's second state law claim is for assault and battery.


 "If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law [,]" summary judgment shall be granted. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The Supreme Court has explained that Rule 56(c) requires "the threshold inquiry of determining whether there is the need for a trial--whether, in other words 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, "a motion for summary judgment must be granted unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (citing Anderson and Celotex Corp.).

 In considering a motion for summary judgment, the evidence must be considered in the light most favorable to the non-moving party. Adickes v. S.H. Kress and Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (quoting United States v. Diebold, 369 U.S. 654. 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)). However, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Therefore, "if the evidence [offered by the non-moving party] is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). On the other hand, if reasonable minds can differ as to the import of proffered evidence that speaks to an issue of material fact, summary judgment should not be granted."


 A. Count I--Eighth Amendment Violation

 1. Legal Framework

 The Third Circuit, applying Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), has noted that a constitutional violation arising from improper medical treatment only exists if two conditions are met: first, there must be deliberate indifference on the part of prison officials and [second,] the prisoner's medical needs [must] be serious." West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). Furthermore, the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (As long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." (citing Youngberg v. Romeo, 457 U.S. 307, 322-23, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982))). Finally, the Third Circuit has noted that the Estelle standard "affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients." Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir 1979).

 2. Defendant's Actions Do Not Evidence Deliberate Indifference

 Defendant's Declaration sets forth the details of his examination and treatment of plaintiff on the three dates at issue in the case. On August 29, 1995 defendant examined plaintiff who complained of pain on the left side of his mouth, causing headaches. Defendant determined plaintiff had cavities in teeth fourteen and fifteen, *fn1" both upper teeth on the left side of the mouth, and placed a temporary filling in each tooth. Defendant's Motion for Summary Judgment, Exhibit 2, Declaration of Ralph Dendler at P 4 ("Declaration"); see also Defendant's Motion for Summary Judgment, Exhibit A, Dental Records, at 5 ("Records") (recording examination of teeth fourteen and fifteen and noting cavities). During the same visit defendant discovered a cavity and an abscess in the root of tooth eighteen, a lower tooth. Declaration, at P 4.; see also Records, at 5 (noting abscess and pain). On September 13, 1995, defendant saw plaintiff for a second time, at which time defendant noted that plaintiff still complained of pain in tooth fourteen, one of the teeth treated in August. Defendant removed what he believed to be the tooth causing the pain (number fourteen). Declaration, at P 5; see also Records, at 5 (noting pain and extraction of tooth fourteen).

 During the third visit, on September 27, 1995, plaintiff still complained of pain in the left side of his mouth. Declaration, P 6. Defendant examined plaintiff at that time and determined that tooth fifteen was sensitive to hot and cold items and that tooth eighteen needed to be extracted. Declaration, at P 6; see also Records, at 5 (noting tooth fifteen was sensitive and extraction of eighteen). Defendant removed tooth eighteen but was unable to remove the roots of that tooth; he suggested that plaintiff see an oral surgeon to have the roots removed. Declaration, at ...

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