19

- 2084 Darby v. Greenman
1 

# United States Court of Appeals 2 

# for the Second Circuit 3 4 

### August Term, 20 20 5 6 

### ( Argued : December 7 , 20 20 Decided: September 16, 2021 ) 7 8 

### Docket No

. 19

- 2084 9



### _____________________________________ 10 11 

### DEVIN DARBY , 12 

### Plaintiff

- A ppellant , 13 14



### v. 15 16 

### DAVID GREENMAN, RAFAEL HAMILTON, 17 

### JOHN DOE NO. 1, JOHN DOE NO. 2 , 18 

### Defendant s

- Appellee s

. * 19
20



### _____________________________________ 21 

### Before: 22



### C ABRANES 

### , C ARNEY 

### , and P ARK 

### , Circuit Judge s

. 23


### Plaintiff Devin Darby suffered from a gum condition that he alleges was not 24


### adequately addressed while he was incarcerated at two Rikers Island correctional 25


### facilities. Darby filed a pro se complaint in the United States District Court for the 26

* The Clerk of Court is directed to amend the caption as set forth above

.

### 2 Eastern District of New York asserting claims against two dentists, two 1


### unidentified Department of Corrections officials, and several municipal 2


### defendants for medical malpractice under state law and violations of his Eighth 3



### and Fourteenth Amendment ri ghts under 42 U.S.C. § 1983. The district court 4


### (Cogan, J. ) dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) 5


### for failure to state a claim. On appeal, Darby challenges the dismissal of his 6



### constitutional claims. We conclude that Dar by failed to plead that Defendants 7



### acted with deliberate indifference to serious medical needs and thus affirm. 8


### Judge Carney dissents in a separate opinion. 9



### A LEXANDER 

### A. R EINERT 

### , New York, N Y, for 10 

### Plaintiff

- Appellant

. 11 12 

### S USAN 

### P AULSON 

### ( Richard Dearing , Deborah 13 

### A. Brenner, on the brief ), for James E. Johnson , 14 

### Corporation Counsel of the City of New 15 

### York , New York, N Y, for Defendant s

16 

### Appellee s

. 17 18 

### P ARK 

### , Circuit Judge : 19



### Plaintiff Devin Darby suffered from a gum condition that he alleges was not 20


### adequately addressed while he was incarcerated at two Rikers Island correctional 21



### facilities. Darby filed a pro se complaint in the United States District Court for the 22



### Eastern District of New York ass erting claims against two dentists (“Dentist 23

### 3 Defendants”) , two unidentified Department of Corrections officials (“Doe 1


### Defendants”) , and several municipal defendants for medical malpractice under 2



### state law and violations of his Eighth and Fourteenth Amendme nt rights under 42 3


### U.S.C. § 1983

. The district court (Cogan, J. ) dismissed the complaint under Federal 4


### Rule of Civil Procedure 12(b)(6) for failure to state a claim

. On appeal, Darby 5


### challenges the dismissal of his constitutional claims. We conclude tha t Darby 6


### failed to plead that Defendants acted with deliberate indifference to serious 7



### medical needs and thus affirm

. 8



### I. BACKGROUND 9



### A. Factual Background 1 10



### I n February 2017, Darby was housed at the Otis Bantum Correctional Center 11


### (“OBCC”) on Rikers Island when he began to experience inflammation and pain 12


### in his right cheek area

. During a health screening , dental clinicians found a three

13


### by

- three

- centimeter bulge in Darby’s gums. Darby sought medical attention by 14


### submitting a written sick call request to a correctional officer responsible for 15


### placing it in a medical intake mailbox

. He was seen at the Rikers Island health 16

1 The following facts are taken from Darby’s first amended complaint (“Complaint”) and its supplement , which we assume to be true for purposes of this appeal. See City of New York v. Chevron Corp. , 993 F.3d 81, 86 n.1 (2d Cir. 2021)

.

### 4 clinic the next day and received ibuprofen for his pain. Darby submitted another 1


### sick call request a few days later

. The next day , he was examined by a Rikers 2



### Isla nd dentis t who detected an abscess and scheduled him for an appointment 3



### with Dentist Defendant David Greenman. 4



### Greenman saw Darby six days later, on February 17 , 2017

. During the 5


### appointment , Greenman suggested a dental extract ion , which Darby insisted was 6



### unnecessary

. Greenman identified a parotid gland issue and advised that Darby 7



### “ would need to see a specialist for his gum pain, outside of Rikers Island

. ” Compl

. 8



### ¶ 19

. A week later, Darby began inquiring about when he would be treated. 9



### Greenman called Darby back to the clinic , but Darby refused the visit, which he 10



### viewed as “ another attempt at extracting his tooth.” Id. ¶ 20. 11


### By late February, Darby “suffered from pain, inflammation, swelling, 12


### inability to chew, sleeplessness, and impaired speech.” Id. ¶ 23. H e submitted 13


### approximately fifteen sick call requests between late February and late April “to 14


### follow up on his worseni ng condition.” Id. Darby “received no medical attention, 15


### care or other response to his numerous sick call requests.” Id. ¶ 26. Between mid

16



### March and late April , he also submitted to a “grievance box” three or four written 17


### grievances that “described in detail the worsening pain and suffering he was 18

### 5 experiencing , and requested immediate medical attention. ” Id. ¶ ¶ 27

– 28

. Darby 1


### claims that his sick call requests and grievances were “ repeatedly ignored .” Id. 2



### ¶¶ 26, 30. 3


### In late April, Darby was transferred from OBCC to the Robert N. Davoren 4


### Complex (“RNDC”) , also at Rikers Island

. During his intake at RNDC, Darby 5



### described his gum pain and was scheduled for an appointment with Dentist 6



### Defendant Rafael Hamilton. On May 25 , 2017, Darby met with Hamilton, 7


### described his symptoms and history , and was scheduled for a second 8


### appointment

. At Darby’s second appointment, on June 5, Hamilton performed a 9


### dental cleaning

. Darby “protested and explained that he had a serious gum issu e, 10


### and needed more than a cleaning,” but “Hamilton ignored him .” Id. ¶ 37. D arby’s 11


### symptoms persisted , and in mid

- June, he submitted four sick call requests 12


### “describing his pain and symptoms and request[ing] immediate medical care.” Id. 13



### ¶ ¶ 38

– 39

. He re ceived no response. 14


### In late June, Darby was transferred to another facility and was eventually 15


### referred to a specialist

. After several visits with different specialists, a large mass 16


### was found in Darby’s gums

. H e underwent gum surgery in February 2018

. 17

### 6 Darby seeks an unspecified amount of damages for “ significant and lasting 1


### damage ” resulting from D efendants ’ failure to provide him with proper medical 2



### treatment

. Id. ¶ 44. Specifically, Darby’s relationships with friends and family

— 3


### including a three

- year relationship with his then

- fiancée

— suffered because of his 4


### impaired speech. He also lost 20 pounds due to difficulty chewing

. Darby alleges 5



### that if the Dentist Defendants had provided prompt and appropriate medical care, 6



### he would not have suffered the physical pain he endured , and if the Doe 7



### Defendants had responded to his grievances, he could have been treated earlier 8


### and avoided significant pain. 9



### B. Procedural History 10


### Darby , proceeding pro se , commenced this action under 42 U.S.C. § 1983 for 11


### violations of his Eighth and Fourteenth Amendment rights against the City of New 12


### York, New York City Health and Hospitals Corporation (“NYCHHC”), and 13


### Correctional Dental Associates (“CDA”) ; Dentist Defendan ts David Greenman 14



### and Rafael Hamilton ; and the Doe Defendants . He also brought state

- law claims 15



### of medical malpractice against NYCHHC, CDA, Greenman, and Hamilton

. 16


### During an initial conference, the district court explained to Darby that his 17



### constitutional claims , as alleged, would not survive a motion to dismiss and 18

### 7 offered him the opportunity to amend. Darby filed an a mended c omplaint, and 1



### D efendants moved to dismiss the complaint under Federal Rule of Civil 2



### Procedure 12(b)(6)

. Darby subse quently moved to supplement his complaint with 3



### additional facts that he claimed would “clearly demonstrate that the Defendants 4



### acted with deliberate indifference

. ” Supp. Compl. at 1. T he district court granted 5



### the motion and thus construed the amended co mplaint to include the newly 6


### alleged facts. 7


### The district court granted the motion to dismiss as to all Defendants

. See 8


### Darby v. N.Y.C. Health & Hosps. Corp. , No. 18

- cv
- 2869, 2019 WL 1994490, at * 1 & n.1 9


### (E.D.N.Y. May 6, 2019). It dismissed the section 1983 claims against the City, 10


### NYCHHC, and CDA for failure to allege a municipal policy or practice that 11



### resulted in a violation of Darby’s constitutional rights. Id. at *3. The district court 12



### also dismissed t he constitutional cla ims against the Dentist Defendants and the 13


### Doe Defendants. The court held that Darby had not alleged that any of the se 14



### D efendants acted with deliberate indifference to a sufficiently serious medical 15



### need

. Id. at * 4

– 7

. As to the Dentist Defendants , the d istrict court held that , “at 16


### most, defendants ’ conduct

. . . constitute[d] medical malpractice,” which “is not a 17


### cognizable claim for deliberate indifference.” Id. at *6. The court also found that 18

### 8 Darby failed to establish personal involvement by the Doe Defendants because he 1



### “ ha [ d ] not alleged that the grievances ever reached [them] before he was 2


### transferred to another facility , ” nor had he allege d any “ facts

— rather than legal 3



### conclusions

— to suggest that the [Doe Defendants] knew or should hav e known of 4


### an excessive risk to [ his ] health.” Id. at * 7

. 5


### The district court declined to exercise supplemental jurisdiction over 6


### Darby’s state

- law claims for medical malpractice and dismissed them without 7


### prejudice to refiling in state court. Id. Fina lly, the court denied l eave to amend a s 8



### futile because Darby “ha[d] not stated a claim for relief after filing an amended 9


### complaint, which he further supplemented.” Id. 10


### Darby timely appealed

. 11



### II. LEGAL STANDARDS 12



### A. Standard of Review 13



### We review de novo the dismissal of a complaint under Federal Rule of Civil 14


### Procedure 12(b)(6)

. Bacon v. Phelps , 961 F.3d 533, 540 (2d Cir. 2020)

. “ To survive a 15


### motion to dismiss, a complaint must contain sufficient factual matter, accepted as 16


### true, to ‘state a claim to relief that is plausible on its face. ’” Ashcroft v. Iqbal , 556 17


### U.S. 662, 678 (2009) (quoting Bell Atl. Corp

. v

. Twombly , 550 U.S. 544, 570 (2007 ) )

. 18

### 9 “ [A] complaint that merely ‘ tenders naked assertions devoid of further factual 1



### enhancement ’ fails to meet this standard ,” Gallop v. Cheney , 642 F.3d 364, 368 (2d 2


### Cir. 2011) (quoting Iqbal , 556 U.S. at 678) , as do “ u nadorned, the

- defendant

3


### unlawfully

- harmed

- me accusation[s] ,” Iqbal , 556 U.S. at 678. 4



### W e construe a pro se complaint “liberally to raise the strongest arguments it 5


### suggests

. ” Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013) ( cleaned up )

. 6


### “Nonetheless, a pro se complaint must state a plausible claim for relief.” Id. 7



### B. Deliberate Indifference 8



### In Estelle v. Gamble , 429 U.S. 97 (1976), the Supreme Court held that 9


### “deliberate indifference to serious medical needs of prisoners constitutes the 10


### ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth 11


### Amendment[,]

. . . whether the indifference is manifested by prison doctors in 12


### their response to the prisoner’s needs or by prison guards in intentionally denying 13


### or delaying access to medical care.” Id. at 104

– 05 (citation and footnote omitted). 14


### The Court subsequently extended the protections for convicted pri soners 15



### established in Estelle to pretrial detainees under the Due Process Clause of the 16


### Fourteenth Amendment, reasoning that “the due process rights of a person 17


### [detained but not convicted] are at least as great as the Eighth Amendment 18

### 10 protections availabl e to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp. , 1


### 463 U.S. 239, 244 (1983). 2


### “[A] prison official cannot be found liable under the Eighth 3



### Amendment

. . . unless the official knows of and disregards an excessive risk to 4



### inmate health or safet y; the official must both be aware of facts from which the 5


### inference could be drawn that a substantial risk of serious harm exists, and he must 6



### also draw the inference.” Farmer v. Brennan , 511 U.S. 825, 837 (1994)

. “[A] n 7



### official ’ s failure to alleviate a significant risk that he should have perceived but did 8



### not” does not meet this standard. Id

. at 838. 9



### “ [A] detainee asserting a Fourteenth Amendment claim for deliberate 10


### indifference to his medical needs can allege either that the defendants knew that 11


### failing to provide the complained of medical treatment would pose a substantial 12



### risk to his health or that the defendants should have known that failing to provide 13


### the omitted medical treatment would pose a substantial risk to the detainee's 14



### health.” Charles v. Orange C ou nty , 925 F.3d 73 , 87 (2d Cir. 2019)

. “[D] eliberately 15



### indifferent conduct ” is “ egregious enough to state a substantive due process 16



### claim .” Id . at 86 ( quoting C ou nty of Sacramento v. Lewis , 523 U.S. 833, 84 9

– 50 (1998))

. 17



### Deliberate i ndifference requires, at a minimum, “culpable recklessness, i.e. , an act 18

### 11 or a failure to act that evinces a conscious disregard of a substantial risk of serious 1



### harm.” Id. at 87 ( cleaned up ) ; see also Darnell v. Pineiro , 849 F.3d 17, 29 (2d Cir. 2


### 2017)

. 3



### I I I. DISCUSSION 4


### Darby challenges the district court’s dismissal of his constitutional claims 5


### against the Dentist Defendants and the Doe Defendants. He contends that the 6


### district court “disregarded the factual allegations contained in [the] compl aint and 7


### failed to draw reasonable inferences therefrom in his favor.” Appellant’s Br. at 1. 8


### We conclude that Darby failed to allege that the Dentist Defendants acted with 9


### deliberate indifference or that the Doe Defendants were personally involved in a 10



### d eprivation of Darby’s constitutional rights

. 11



### A. D efendant Greenman 12


### Darby ’s Fourteenth Amendment claim against Greenman fails because he 13



### does not allege that Greenman acted with deliberate indifference. As described 14


### above, Greenman saw Darby in late February 2017 and suggested a tooth 15


### extraction, an assessment with which Darby strongly disagreed. See supra at 4

. 16


### When Darby followed up and was called back to the clinic, he “refused the visit 17



### because he knew he did not need a tooth extraction.” Compl. ¶ 20. 18

### 12 These allegations do not even suggest that Greenman acted with deliberate 1



### indifference. Darby does not claim that Greenman denied him treatment but 2



### instead disagrees with Greenman’s assessment of the severity of his condition and 3



### recommendation for treatment. 2 

### This constitutes, at most, a difference of opinion 4



### about the proper course of treatment ; it does not demonstrate deliberate 5



### indifference to a substantial risk of harm to Darby’s health. See Charles , 925 F.3d 6



### at 87

. Even assuming that Greenman’s proposed treatment was inadequate, “ m ere 7


### medical malpractice is not tantamount to deliberate indifference” absent a 8


### showing of “conscious disregard of a substantial risk of serious harm.” Id. ( citation 9



### omitted ). Thus, Darby has not alleged that Greenman acted with deliberate 10



### indifference under the Fourteenth Amendment

. 11



### B. Defendant Hamilton 12


### Darby similarly fail s to state a claim of deliberate indifference under the 13


### Eighth Amendment against Hamilton . Darby was in Hamilton’s care from late 14


### May to late June and was seen twice during that time

. At the second appointment, 15


### Hamilton gave Darby “a basic dental cleaning,” which Hamilton said would 16



### relieve Darby’s gum pain. Compl. ¶ 37. “Darby protested and explained that he 17

2 Although Darby alleges that his requests for medical attention were ignored, he does not allege that Greenman received the requests or refused to see Darby.

### 13 had a serious gum issue, and needed more than a cleaning,” but he claims that 1


### Hamilton ignored him. Id. 2


### These allegations fail to establish that Hamilton possessed a “sufficiently 3


### culpable state of mind.” Farmer , 511 U.S. at 834 (quoting Wilson v. Seiter , 501 U.S. 4



### 294, 29 7 (1991)). Even if we were to assume that a dental cleaning was inadequate 5



### and that Hamilton should have known this , “a complaint that a physician has been 6


### negligent in di agnosing or treating a medical condition does not state a valid claim 7


### of medical mistreatment under the Eighth Amendment.” Estelle , 429 U.S. at 106. 8


### Darby has thus failed to state an Eighth Amendment claim against Hamilton. 3 9

3 The dissent would base a finding of deliberate indifference on its opinion that the Dentist Defendants’ proposed treatments were not “actually responsive” to Darby’s condition. Dissent at 6

– 8. But the post hoc medical assessments of judges cannot compensate for a plaintiff’s failure to plead facts sufficient to “evince[] a conscious disregard o f a substantial risk of serious harm.” Id. at 6 (quoting Chance v. Armstrong , 143 F.3d 698, 703 (2d Cir. 1998)). The cases cited by the dissent do not call for inferring culpable recklessness from allegations of inadequate treatment alone. In Chance , t he plaintiff “[c]rucially . . . also alleged” that the dentists made an “intentionally wrong” recommendation “because of monetary incentives.” 143 F.3d at 704. Similarly, in affirming the denial of a directed verdict for the defendant in Hathaway v. Coug hlin , we held that a rational jury could have inferred deliberate indifference by a doctor who “knew that the course of treatment was largely ineffective” because he had “frequently examined” the plaintiff. 37 F.3d 63, 68 (2d Cir. 1994). And in a nonprec edential summary order in Gaffney v. Perelmuter , we decided that a reasonable jury could find deliberate indifference where the risk was “obvious” and based on a particular “ confluence of factors ,” including the defendant “ proceeding with insufficient time , ignoring yells of pain, breaking the tooth, [and] repeatedly slipping and stabbing the area .” 805 F. App’x 53, 57

– 58 (2d Cir. 2020).

### 14 C. Doe Defendants 1


### Finally, Darby fails to allege that the Doe Defendants acted with deliberate 2



### indifference

. The complaint of course does not name the Doe Defendants , whom 3



### it identifies only as Department of Corrections “ administrators, officials and 4


### employ ees in charge of processing and responding to sick calls and grievances.” 5


### Compl. ¶ 5. 4 

### Darby alleges that the Doe Defendants ignored approximately fifteen 6


### sick call requests that he submitted “to follow up on his worsening condition , ” i d. 7



### ¶ 23 , and three or four grievances that “described in detail the worsening pain and 8


### suffering he was experiencing , ” i d. ¶ ¶ 27

– 28 ; s ee supra at 4

– 5

. 9


### Darby fails to state a claim against the Doe Defendants because he does not 10


### allege any “personal involvement

. . . in alleged constitutional deprivations.” 11



### Farrell v. Burke , 449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith , 21 F.3d 12


### 496, 501 (2d Cir. 1994))

. The complaint does not specify w hen Darby submitted 13


### the sick call requests , to whom he submitted them , or what information they 14


### conveyed. 15

4 The district court held several discovery conferences in an effort to identify the Doe Defendants. Despite an extens ive search, Darby ’ s sick call requests had not been located and the Doe Defendants had not been identified at the time of dismissal.

### 15 To allow Darby’s claims against the Doe Defendants to proceed, we would 1



### have to assume the elements of liability. Specifically, we would need to as sume 2



### that (1) the Doe Defendants actually received and read Darby’s requests ; (2) the 3


### requests described the seriousness of Darby’s condition in such a way that the Doe 4



### Defendants knew or should have known that doing nothing would risk substantial 5



### harm ; and (3) the Doe Defendants ’ failure to take action in response to Darby’s 6


### requests was reckless even though Darby was already seeing a dentist

. 5 

### In other 7



### words , we would need to fill in va rious gaps in the complaint

. 8


### Although we afford a pro se litigant a certain degree of latitude in the 9


### sufficiency of his factual allegations, “a liberal interpretation of a pro se civil rights 10


### complaint may not supply essential elements of the claim that were not initially 11


### pled.” Litmon v. Harris , 768 F.3d 1237, 1241 (9th Cir. 2014) ( citation omitted ); see 12


### also, e.g. , Fleming v. United States , 146 F.3d 88, 90 (2d Cir. 1998) (explaining that 13



### where a pro se pleading “fails even vaguely to suggest an essential element of a 14


### claim for relief, the district court is not required to overlook the deficiency”). 6 15

5 This requires an additional assumption that the Doe Defendants did not know that Darby had already seen Greenman, because if they had known, it would hardly seem unreasonable for them not to respond to requests that would be referred to a dentist anyway.

6 The dissent’s charge that the majority draws inferences against Darby, see Dissent at 11 n.6, has it backwards. While we construe pleaded facts in the light most favorable to the plaintiff,

### 16 Darby contends that we can infer the D oe Defendants’ involvement based 1



### on Grullon v. City of New Haven , 720 F.3d 133 (2d Cir. 2013). But in Grullon , we 2



### found only that the district court should ha ve afforded the plaintiff at least an 3


### opportunity to amend because the court could infer from spe cific allegations about 4


### the plaintiff’s sending of a letter “that the [defendant] in fact received the [l]etter , 5



### read it , and thereby became aware of the alleged conditions of which [the plaintiff] 6


### complained

. ” Id. at 141. There, we clarified that th ese inference s could be drawn 7


### if an amended complaint included allegations specifying the addressee, address, 8


### and means of delivery, and because the letter itself was included in the record

. See 9



### i d. 10


### Here, by contrast, Darby has provided no factual basis t hat would allow us 11


### to infer receipt or (even assuming receipt) to impute to the Doe Defendants 12


### knowledge of the severity of Darby’s condition. 7 

### A lthough Darby allege s that his 13

we can draw inferences based only on the facts actually alleged, and we are not free to speculate about unpleaded facts that might be favorable to the plaintiff. The complaint “provides no basis for presuming” that, despite Darby’s dental visits on dates overlapping with the period of his objections , the Doe Defendants “knew that Darby was not receiving effective

— or indeed any

— treatment yet still did n othing.” Id.

7 W e are not required to credit Darby’s conclusory allegation that the Doe Defendants “were aware of [his] condition, that it was a serious medical condition, that it was getting increasingly worse, and that urgent medical attention was need ed in order to resolve the issue.” Compl. ¶¶ 25, 29; see Twombly , 550 U.S. at 555 (explaining that courts “are not bound to accept as true a legal conclusion couched as a factual allegation” (quoting Papasan v. Allain , 478 U.S. 265, 286 (1986)) )

.

### 17 grievances described his “ worsening pain and suffering,” Compl. ¶ 27, we canno t , 1


### in the absence of allegations further specifying the content of his grievances, 2


### reasonably infer that the Doe Defendants knew or should have known that failing 3



### to act would pose a substantial risk to Darby’s health

. 4


### In short, Darby’s allegations as to the Doe Defendants are limited to making 5


### numerous complaints to which he never received a response. That is not enough 6



### to state a Fourteenth Amendment claim of deliberate indifference. Even for pro se 7


### pleadings, “[v]ague and conclusory allegations of official participation in civil 8


### rights violations are not sufficient to withstand a motion to dismiss.” Litmon , 768 9


### F.3d at 1241 ( citation omitted). W e thus affirm t he district court ’s dismissal of 10


### Darby’s claims against the Doe Defendant s. 11



### I V

. CONCLUSION 12



### For the reasons set forth above , the district court’s judgment is affirmed

. 13No. 19

- 2084 Darby v. Greenman

C ARNEY , Circuit Judge , dissenting :
Plaintiff

- Appellant Devin Darby allege s in his pro se complaint that while
incarcerated at Rikers Island he suffered from a gum abscess

— an infected bulge in his
mouth measuring over one inch by one inch. In addition to the resulting continuous pain, the condition interfer ed with his ability to chew , talk , and sleep , and caused him to lose 20 pounds

. T he two dental professionals provided by the prison offered , respectively, to pul l a tooth and to perform a teeth cleaning. 1 One of those professionals acknowledged that Darby’s condition required a specialist’s care.
As his condition became more acute , Darby submitted at least 15 sick call requests and filed three to four related gr ievances in which he describ ed his increasingly severe symptoms and request ed treatment urgently

. He alleges that p rison
officials whose names he does not know received these requests and grievances and
were aware of his condition

. No response was forthcoming

. Despite his numerous requests, the abscess went essentially untreated for over four months. After he was
transferred from Rikers to another prison facility , however, he underwent gum surgery
th at treated the abscess , alleviated the pain , and ended his incapacity

. I n my view, Darby plausibly pleaded a deliberate

- indifference claim under 42 U.S.C. § 1983 against the two medical professionals who saw him at Rikers and against
the Doe Defendants

— th e un identified prison officials responsible for providing

1 These factual allegations are drawn from Darby’s amended complaint and proposed further amendment to his complaint, which the district court considered in its Rule 12(b)(6) decision, and on which the Majority also relies. See Darby v. New York City Health & Hosps. Corp ., 2019 WL 1994490, at *1 (E.D.N.Y. May 6, 2019) (“The facts are taken from the [Complaint] (and its supplement) .”). As did the district court, we take them as true for the purpose of this motion to dismiss.2 prisoners with adequate medical care

. 2 The d istrict c ourt erred by dismiss ing his complaint under Rule 12(b)(6)

. And, i n affirming the d istrict c ourt’s ruling , t he M ajority
draw s inferences against Darby and fail s to construe his pro se complaint “to raise the strongest arguments it suggests

. ” Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013). 3 The Majority thus depart s from the plausibility standard and effectively immunizes fr om
suit these prison officials and the doctors they employ ed , who provided stark ly inadequa te care to Darby while he was incarcerated at Rikers

. For th e se reasons and those discussed below , I respectfully dissent from the Majority’s decision to affirm the d istrict c ourt’s judgment

.

I. Legal f ramework Darby ’s claims arose during his time in custody, first in a pretrial setting and
then after his conviction. His § 1983 claims therefore implicate the protections of bot h the Fourteenth Amendment, as to his pretrial detention, and the Eighth Amendment, as to his posttrial incarceration.
T o state a claim under § 1983 as to either, Darby must allege that he was denied treatment for an objectively “ serious medical condition

. ” Estelle v. Gamble , 429 U.S. 97, 104 (1976); see Darnell v. Pineiro , 849 F.3d 17, 29 (2d Cir. 2017). He must also plausibly allege that the d efendants acted with “deliberate indifference” to his serious medical
needs. Estelle , 429 U.S. at 104

- 05

. With regard to his Fourteenth Amendment pretrial

2 The complaint identifies the Doe Defendants as “ the DOC [Department of Corrections] administrators, officials and employees in charge of processing and responding to sick calls and grievances at OBCC [Otis Bantum Correctional Center] and RNDC [Robert N. Davoren Complex] .” J.A. 14 ( Compl. ¶ 5). Both the OBCC and RNDC facilities are located at Rikers Island

.

3 Unless otherwise noted, in text quoted from caselaw, this dissent omits all alterations, citations, footnotes, and internal quotation marks.3 detention claim , Darby must allege facts sufficient to support an infer ence that the
relevant defenda nts acted with deliberate indifference under the objective standard : that is, that Dr. Greenman and the Doe Defendants knew or should have known that they exposed Darby to an objectively serious harm or risk of harm. See Darnell , 849 F.3d
at 35. With regard to his Eighth A mendment post

- conviction claim, in contrast, Darby

must allege facts sufficient to demonstrate deliberate indifference on the part of Dr.
Hamilton under the subjective standard , meaning that Dr. Hamilton was awa re of and consciously disregarded a substantial risk of serious harm. Id

. at 32

- 33.

II. Darby plausibly alleges that he suffered from a “s erious m edical condition ”

The M ajority does not contest that Darby allege s a serious medical condition
when he describe s his physical state and his diagnosis of a dental abscess

. 4 A “serious medical condition” is one that poses “an unreasonable risk of serious damage ” to an inmate’s health

. Darnell , 849 F.3d at 30. One that is merely “uncomfortable and annoying” is insufficient , but t he medical issue need not be “life

- threatening” or “at the limit of the human ability to bear” to provide a n adequate predicate for an Eighth
Amendment claim. Brock v. Wright , 315 F.3d 158, 163 (2d Cir. 2003); see Chance v. Armstrong , 143 F.3d 698, 70 2 (2d Cir. 1998) . Factors to be weighed when evaluating
whether a condition is sufficiently serious to merit Eighth Amendment consideration
include “whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual’s daily activities,

4 For more information about the condition, the counsel for D efendants refer us to a website maintained by the National Institute of Dental and Craniofacial Research concerning salivary gland abscess es: Saliva & Salivary Gland Disorders (July 2018), https://bit.ly/2PhfLCX

. Darby allege s t hat he was diagnosed with a “parotid gland issue” by the Rikers clinic staff in February 2017, J.A. 58, which we understand to be different from a tooth abscess

.4 and whether it causes chronic and substantial pain.” Salahuddin v. Goord , 467 F.3d 263,
280 (2d Cir. 2006).
There can be no reasonable doubt that the medical condition Darby allege s me e t s this standard

. Darby began to suffer from gum inflammation while detained at Rikers in February 2017

. As the mass in his gum “grew increasingly large and painf ul,” Darby
had difficulty chewing his food and brushing his teeth

. J

. A

. 15 (Compl. ¶ ¶ 11, 14). When awake, his speech was impaired . He was unable to sleep. To resolve h is
condition , he needed surgery . He did not receive that surgery until February 2018 , only
after he was transferred from Rikers to Watertown Correctional Facility

. Darby’s gum abscess is thus comparable to those we have held in the past to amount to a serious
medical condition. See , e.g. , Chance , 143 F.3d at 703 (allegation of dental probl ems resulting in extreme pain, tooth deterioration, and difficulty chewing or speaking was a
serious medical condition for Eighth Amendment purposes ); Harrison v. Barklay , 219 F.3d 132, 13 7 (2d Cir. 2000) (a tooth cavity can present “a serious medical need ” for Eighth Amendment purposes if untreated); Gaffney v. Perelmuter , 805 F. App ’ x 53, 55

- 57 (2d Cir. 2020) (summary order) ( dental pain and numbness in the cheek area can be a serious medical condition ).

III. Darby’s a llegations support an inference that the D entist D efendants exhibited d eliberate i ndifferen ce to his medical needs Further, Darby alleges facts that plausibly support an inference that the Dentist Defendants, Drs. Greenman and Hamilton , were deliberately indifferent to his medical
needs. Darby allege s that when he saw Dr. Greenman for treatment at Rikers Island in February 2017 , the clinic had already recorded a “ 3 by 3 cm bulge ” in Darby’s gum and
had diagnosed his condition as a “ dental abscess. ” J

. A

. 58

. Nevertheless , Dr. Greenman proposed a tooth extraction to treat Darby’s pain. Darby explained to Dr. Greenman that “his gums were causing his pain, not his tooth.” Id. 15

- 16 (Compl. ¶ 18). Dr.5 Greenman reexamined Darby and “affirmed” that Darby would need to see a specialist outside of Rikers to treat his gum and withdrew his proposal to extract a tooth

. Id

. ( Compl. ¶ 1 9). 5 Nonetheless, one week after the consultation , Darby was called back to
the clinic to undergo a tooth extraction . Darby refused the extraction. Id

. ( Compl. ¶ 20).
He alleges that Dr. Greenman did not provide him any further care or arrange for
further treatment

. Several months later, in May, a second dentist

— Dr. Hamilton

— saw Darby in the
clinic at Rikers , after the diagnosis and the proposed toot h extraction. Darby had by
then been experiencing pain and functional impairment for more than three months. Darby says that on May 25, at his first meeting with Dr. Hamilton , he “explained all of his symptoms,” and “described the shooting pain he was experiencing” and “the history of his gum pain.” J

. A

. 17 (Compl. ¶ 36). Dr. Hamilton did not provide any treatment at this first appointment . He scheduled Darby for a follow

- up visit

. On June 5, when Dr. Hamilton saw D arby once again , he “ignored” Darby’s complaints of gum pain and provided only a “basic dental cleaning.” J

. A

. 18 (Compl. ¶ 37). Dr. Hamilton advised th at the cleaning would re solve Darby’s gum pain, but Darby protested, insisting that “he had a serious g um issue , and needed more than a cleaning.” Id. 18 (Compl. ¶ 37). Dr. Hamilton provided no further treatment, however , and Darby ’s symptoms , including pain from the abscess and significant weight loss , persisted

.

5 Darby does not allege he was ever in fact referred to a specialist by Dr. Greenman or any o ther prison official. That such a referral may have been made at some point, however, would not absolve Dr. Greenman. This Court has “ decline [ d ] to adopt a rule that would exempt general practitioners [including dental 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 v. Coughlin , 37 F.3d 63, 68 (2d Cir. 1994) ; accord Gaffney , 805 F. App ’ x at 58

.6 The M ajority takes the position that Darby failed to allege deliberate indifference on the part of either Dr. Greenman or Dr. Hamilton

. Rather, the Majority characterizes the complaint as describ ing , “ at most, a difference of opinion about the proper course of

treatme nt.” Maj. Op. at 12. The theory that a difference of opinion over treatment is not enough to support a
deliberate indifference claim would dispatch Darby’s complaint , however, only if the treatment proposed by the physician is actually responsive to the c ondition diagnosed

. See Chance , 143 F.3d at 703 (“ So long as the treatment given is adequate , the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation.” (emphasis added)). We have stressed that “ a phys ician may be deliberately indifferent if he or she consciously chooses ‘ an easier and less efficacious ’ treatment plan. ” Id

. (quoting Williams v. Vincent , 508 F.2d 541, 544 (2d Cir. 1974) ) ; see also Ceparano v. Suffolk Cnty. Dep't of Health , 485 F. App ’ x 505, 508 (2d Cir. 2012) ( vacating dismissal of complaint alleging plaintiff complained to nurse of worsening back pain on several
occasions and received only “conservative” treatment)

. Notably, Defendants here do not argue that a tooth extr action is an appropriate or adequate treatment for a gum abscess

. See Appellee s’ Br. 5 n.2 ; Appellant’s Reply Br.
1 (both citing text published by the National Institute of Dental and Craniofacial Research, Saliva & Salivary Gland Disorders (July 2018) , https://bit.ly/2PhfLCX , which
does not list tooth extraction as a possible treatment for a salivary gland disorder). It is
th erefore reasonable to infer that Dr. Greenman, a trained dentist, knew or should have
known that a tooth extraction would n either treat the abscess nor alleviate Darby’s
related symptoms and that it was at most an “easier and less efficacious” treatment option than others

— if it was a treatment at all

. Chance , 143 F.3d at 703. Dr. Greenman ’s
conduct in simply offering to pull one of Darby’s teeth could therefore plausibly

“ evince[ ] a conscious disregard of a substantial risk of serious harm” sufficient to7 establish delibera te indifference. Id

. ; see also Davis v. McCready , 283 F. Supp. 3d 108, 122 (S.D.N.Y. 2017) ( w hether a proposed course of treatment is negligent or objectively
reckless is “ difficult for a court to discern” at the pleading stage because it “ may require

a ce rtain level of medical knowledge in order to determine what a reasonable medical professional in the circumstances would have reason to know” ).

The Dentist Defendants also do not dispute that the “ basic dental cleaning ” that
Dr. Hamilton is alleged to have proposed was not an adequate treatment for the almost golf ball

– sized mass in Darby’s gum. Based on the symptoms, continued pain, and medical history that Darby described, it is reasonable to infer that Dr. Hamilton, also a trained denti st, knew or should have known that his proposed treatment would not
alleviate Darby’s pain. Darby has described a situation from which it is at least plausible
to infer that Dr. Hamilton too “knew the extent of [Darby’s] pain, knew that the course of

treat ment was largely ineffective, and declined to do anything more to attempt to improve [ Darby’s ] situation.” Hathaway v. Coughlin , 37 F.3d 63, 68 (2d Cir. 1994) (emphasis added)

. As discussed, t h is scenario , as alleged, amounts to objective ly deliberate
indifference on the part of Dr. Hamilton

. The M ajority also maintains that Darby’s allegations do not establish that Dr. Hamilton “possessed a ‘ sufficiently culpable state of mind, ’ ” because even assuming
that the “dental cleaning was inadequat e and that Hamilton should have known this,”
the facts alleged suggest no more than negligen ce

. Maj. Op

. at 13 ( quoting Farmer v.
Brennan , 511 U.S. 825, 834 (1994) )

. Respectfully, it is my view that t his conclusion runs

counter to the Supreme Court’s and our Court’s precedent. We have held that
recklessness can be shown when a “ prison official ‘ knows of and disregards an excessive risk to inmate health or safety. ’ ” Hathaway , 99 F.3d at 553 (quoting Farmer v.
Brennan , 511 U.S. at 837 )

. The official’s actual knowledge of that risk “may be proven from the very fact that the risk was obvious

. ” Spavone v. N.Y. State Dep't of Corr. Servs .,8 719 F.3d 127, 138 (2d Cir. 2013)

. Just last year, in Gaffney v. Perelmuter , this Cou rt vacated by summary order a district court’s dismissal of a similar complaint. 805 F. App’x at 54.
T he district court rested its dismissal on the premise that the plaintiff had ple a d ed only negligence by alleging that a prison dentist “knew or should have known” that the patient’s Novocain had not taken effect after ten minutes

. Id. at 57. Rejecting this premise, the Circuit panel reasoned that “ ten minutes was so obviously an insufficient
amount of time that [the dentist] must have known it was insufficient. ” Id. at 57 & n.3.
B ecause our summary orders are non

- precedential , Gaffney does not control here

. Nonetheless, the comparison is instructive: Darby, l ike the plaintiff in Gaffney , has alleged facts supporting a reasonable infer ence that Dr. Hamilton was aware that a basic dental cleaning would not alleviate any of Darby’s symptoms

— precisely because it should have been obvious to someone in Dr. Hamilton’s position . Darby’s detailed , repeated complaint s of serious pain and the allegedly obvious presence of a substantial
abscess with debilitating symptoms must be enough to plead a plausible claim for
deliberate indifference. Cf. id

. at 59 ( concluding that the plaintiff’s repeated complaints of pain to a dentist, for which the dentist did not provide relief, was enough for a jury to reasonably infer that the dentist was “consciously disregarding” the plaintiff’s pain)

.

IV. As to the Doe Defendants, i t was premature to d ismiss Darby’s c omplaint

The M ajority upholds the district court’s dismissal of Darby’s c omplaint against
the Doe Defendants as well, relying on the ground that Darby failed to establish the ir personal involvement in the constitutional violations that he alleges. Maj. Op. at 14

. In
doi ng so , the M ajority overlooks the district court’s errors and relevant case law

. A. The complaint contains sufficiently specific allegations The Majority finds Darby’s complaint wanting for “not specify[ing ] when Darby submitted the sick call requests, to whom he submitted them, or what information they9 conveyed.” Maj. Op. at 14 . This broad

- brush characterization is belied in large part by the complaint.
Timing. Darby allege s that he submitted his first sick call request on February 6, 2017. J

. A

. 15 (Compl. ¶ 13). In that sick call request, Darby “describ [ ed ] , in detail, the pain and suffering he was experiencing

. ” Id

. Darby states further that he submitted “approximately 15 sick call requests from late February to late April.” Id. (Compl. ¶ 23).
A fter receiving no response to his repeated sick calls, he submitted his first written grievance in “mid

- March.” Id. (Compl. ¶ 2 7). He stat es that he submitted three to four such grievances “between mid

- March and mid

- April.” Id. 17 (Compl. ¶ 28). In those grievances , he “described in detail the worsening pain and suffering he was experiencing and requested immediate medical attention.” Id. 16 (Compl. ¶ 27). These are more than conclusory allegations; especially for an incarcerated individual, who may lack access to copy machines and other technology, the allegations strike me as sufficiently specific as to the tim ing of Darby’s requests

. After Darby was transferred within centers at Rikers , he saw Dr. Hamilton in May , and

— after receiv ing only a basic dental cleaning and no treatment

— he submitted

“ another sick call request in mid

- June.” J

. A. 18 (Compl. ¶ 38). In t his request , he again

“ describ [ ed ] his pain and symptoms and requested immediate medical care.” Id. Darby
filed three additional sick call requests in June. Id

. (Compl. ¶ 39). Surely this is specific enough a timeline to support Darby’s allegations

. Information Conveyed

. The M a jority ’s description of Darby’s allegations might
leave one with the impression that Darby did not specify the s ymptoms he was experiencing in his written communications to prison authorities throughout this time period

. I see no basis for this conclusion. In the c omplaint, Darby describes his symptoms in detail : he had “gum inflammation in his right che e k area” that “disrupted [ his ] everyday functions such as eating, talking and sleeping .” J

. A

. 14

- 15 (Compl.10 ¶ ¶ 10

- 11)

. He suffered from “sleeplessness, difficulty chewing, difficulty brushing his teeth, and mumbled speech.” Id. (Compl. ¶ 14 ) . He repeats that “ his gums were causing him pai n, ” that the pain “was getting increasingly worse,” and that it was a “shooting pain ” in his gum. Id. 15

- 17 (Compl. ¶ ¶ 18, 25, 36). I see no basis to discount the
reasonable inference arising from Darby’s complaint that he described the same in his grievances and sick call requests.

The M ajority nevertheless assumes that Darby’s sick call requests did not
describe “the seriousness of Darby’s condition in such a way that the Doe Defendants knew or should have known that doing nothing would risk substantial harm.” Maj. Op.
at 1 5

. And yet, Darby’s co mplaint alleges that he described his symptoms “in detail” to prison officials. J

. A. 1 5 (Compl. ¶ 13 (“Darby completed a ‘sick call’ request in writing by describing, in detail, the pain and suffering he was experiencing [

. ] ” ) ). Again, h e allege s that he “ suffered from pain, inflammation, swelling, inability to chew, sleeplessness, and impaired speech due to pain.” Id. 16 ( Compl. ¶ 23 )

. F our paragraphs later, he alleges that “[i]n his grievances, Mr. Darby described in detail the worsening pain and sufferin g he was experiencing , and requested immediate medical attention.”
Id. (Compl. ¶ 27 ). Contrary to the M ajority’s assertion, then, it is in my view the only reasonable reading of his complaint that his sick call requests did, in fact, describe the same symptoms that he described in detail, in his complaint

. The complaint provides no
reason to believe that Darby’s sick call requests were not as detailed and specific as his description of symptoms in his complaint: after all, they were intended to get the care that he was being denied. T hat Darby did not repeat verbatim in his complaint what he
wrote in each of his more than 15 sick call requests does not mean we are free to ignore his allegations that in those requests he described detailed, and worsening, symptoms. Taking Darby’s allegations as true, a reasonable jury could infer that one or more prison11 officials supervising the medical care program for inmates at Rikers Island were aware of Darby ’s serious medical needs and nevertheless did nothing to arrange for adequate

treatment. 6 Who received notice of Darby’s plight. A s to the issue of to whom Darby submitted
the sick call requests , the M ajority reasons that we would have to impermissibly assume that the Doe Defendants received Darby’s sick calls for his c omplaint to survive a
motion to dismiss. The M ajority suggests that Darby “has provided no factual basis that would allow us to infer receipt” of Darby’s sick c all requests. Maj. Op. at 1 6

. But i n so reasoning , the M ajority draws an inference against Darby

. O ur precedents suggest , rather , that the inference should be drawn in his favor.

The c omplaint alleges that Darby submitted his sick call requests to “ a

corr ectional officer , who was responsible for then submitting the request to the

‘ medical ’ intake mailbox.” J.A. 15 (Compl. ¶ 13 )

. Darby also allege s that he filed his written grievances “in the ‘grievance box.’” Id. 16 (Compl. ¶ 27). This describes in adequate detail the methods in the facility for prisoners to submit requests and grievances : it identifies specific locations designated to deposit and convey the requests
and grievances and alleges that he followed that procedure

. Under Grullon v. City of

6 The Majority contends that, if the Doe Defendants knew that Darby had already se en Dr. Greenman, it “ would hardly seem unreasonable for them not to respond” to his repeated requests for further treatment because those requests “would be referred to a dentist anyway.” Maj. Op. at 15 n. 5

. This gloss on the complaint rests on inferences drawn against Darby and in favor of the John Does that we are not at liberty to make

— namely, that they did not follow up on Darby’s requests based on a reasonable belief that he was seeing Dr. Greenman, who was providing adequate treatment. Darby alleges t hat after February 17, 2017, he did not see Dr. Greenman again. Darby also alleges that, after his last visit with Dr. Greenman and through late April, he submitted at least 15 sick call requests for medical attention. The complaint thus provides no basis for presuming that the Doe Defendants thought Darby was continuing to receive any medical attention. An entirely reasonable inference, in my estimation, is that the Doe Defendants knew that Darby was not receiving effective

— or indeed any

— treatment yet stil l did nothing to inquire or secure adequate treatment for him.12 New Haven , 720 F.3d 133 (2d Cir. 2013) , no more is needed to support an inference that the requests and grievances were then transmitted, as prison procedures provide, to the appropriate official.

The M ajority’s contention that these all egations are insufficient to support a
reasonable inference that Darby’s sick call requests were received by the appropriate prison official is based on a misreading of Grullon v. City of New Haven

. See Maj. Op. at
1 6

- 1 7

. In Grullon , this Court vacated a dismissal under Rule 12(b)(6) of the prisoner plaintiff’s claims against the prison’s Warden

. See 720 F.3d at 135

- 36

. We reasoned :
[a] t the pleading stage, even if Grullon had no knowledge or information as to what became of his Letter after he s ent it, he would be entitled to have the court draw the reasonable inference

— if his amended complaint contained factual allegations indicating that the Letter was sent to the Warden at an appropriate address and by appropriate means

— that the Warden in fact received the Letter, read it, and thereby became aware of the alleged conditions of which Grullon complained.
Id. at 141. Here, Darby’s complaint allege s that he submitted his sick call requests to a correctional officer “responsible” for submitting said request s to the medical intake box

. J.A. 15

. We have no basis at this stage to infer against Darby that he did not act on the correct procedure for submitting sick calls or grievances at the facilities , and the Majority identifies none

. 7 Accordingly, having ple a d ed sufficient facts to support the inference that he submitted his sick calls and grievances through appropriate means , Darby is entitled to
the inference that prison officials “in fact received” those grievances, and “thereby

7 The State, on behalf of the Doe Defendants, has not identified any deficiencies in Darby’s allegations regarding his method of submitting his grievances and sick calls.13 beca me aware of the alleged conditions of which [Darby] complained.” Grullon , 720
F.3d at 141.
Furthermore, we have repeatedly affirmed that the level of personal involvement of prison officials is a “question of fact

. ” I d. at 1 40. Accordingly, “when a pro s e plaintiff brings a colorable claim against supervisory personnel, and those supervisory personnel respond with a dispositive motion grounded in the plaintiff's failure to identify the individuals who were personally involved, under circumstances in which the plaintiff would not be expected to have that knowledge, dismissal should not occur without an opportunity for additional discovery

. ” I d

. at 141 ( quoting Davis v. Kelly , 160 F.3d 917, 922 (2d Cir. 1998 )). D iscovery to uncover the identities of those responsible for responding to Darby’s sick calls was ongoing when the district court dismissed his complaint. Darby, who was then incarcerated, cannot be presumed to have been in a position to identify which pris on officials at a large facility like Rikers were responsible for receiving and responding to his sick call requests. See Valentin v. Dinkins , 121 F.3d 72, 75 (2d Cir. 1997) (recognizing the difficulty a pro se and incarcerated plaintiff may have
in identi fying a defendant before filing a § 1983 action). Thus, the issue of whether Darby’s complaints reached the Doe D efendants is a

“ factual issue [] . . . that likely cannot be resolved without development of a factual
record

. ” Grullo n , 720 F.3d at 141

. Therefore, the district court erred by dismiss ing the complaint against the Doe Defendants on the ground that Darby failed adequately to allege the officials’ personal knowledge and involvement

. In my view, Darby’s complaint state s a claim against the D oe Defendants. His allegations evince a serious , escalating , and urgent medical need that he brought to the
attention of the Doe Defendants according to the prison’s prescribed procedures, but14 about which they took no action for months. 8 Furthermore, with plausible allegations of wrongdoing but without any factual record regarding which prison officials were involved and how they responded to Darby’s sick call requests, we have no basis to determine whether those requests were negligently disregarded, inte ntionally ignored,

or , perhaps, simply handled belatedly. It may be that discovery would reveal that Darby’s sick calls were responded

to

— the record does not tell us, but perhaps the needed referral was arranged, but delayed, as the district court speculated

. But that speculation is an inference drawn against Darby, and, like the other inferences on which the Majority relies, we are not permitted to rely on it at this stage of the proceedings

.
B. D ismissal as to the Doe Defendants was procedurally premature

The M ajority disregards the additional procedural error in fecting the district
court’s dismissal of the action against the Doe Defendants : i t dismiss ed that portion of
the action before the Doe Defendants had been served or filed any kind of response

. This Court has consistently vacated district courts’ sua sponte dismissal of prisoners’ claims before service of process is made and the state has file d an answer

. McEachin v.
McGuinnis , 357 F.3 d 197, 20 0

- 0 1 (2d Cir. 2004 ). In some cases, the answer can be expected to identify any Doe d efendants and to enable the plaintiff to serve and proceed against them thereafter

. As we have commented elsewhere, “ S ua sponte dismissal of a
pro se complaint prior to service of process is a draconian device, which is warranted only when the complaint lacks an arguable basis either in law or fact. Where a colorable claim is made out, dismissal is improper prior to service of process and the defendant s’

s Cf. Aikens v. Rao, No. 13 Civ. 1088, 2015 WL 5919950, at *2 (W.D.N.Y. Oct. 9, 2015) ( allegation that a prison medical system received sick call requests and ignored or disregarded them is

“ sufficient for a reasonable jury to conclude that [defendant nurse admi nistrator] knew that plaintiff was in severe pain and acted deliberately to deny him treatment ” )

.15 answer.” Id. at 200

- 01; see also Harnage v. Lightner , 916 F.3d 138, 142 (2d Cir. 2019) (“ Sua sponte dismissal of pro se prisoner petitions which contain non

- frivolous claims

. . . is
disfavored by this Court.”) ; Massop v. Coughlin , 770 F.2d 299, 301 (2d Cir. 1985) ( “ We are again constrained to repeat that we strongly disfavor sua sponte dismissals of pro s e prisoner petitions before service of process and the filing of a response by the state. ” )

. Despite this Court’s repeated cautions in this regard, the district court expansively construed the motion to dismiss brought by Dr. Greenman’s counsel as applying to all Defendants , including Dr. Hamilton and the Doe Defendants, even though the Doe Defendants had not yet been served and were not represented by Dr.
Greenman’s counsel. Th is error is especially concerning because the letter brief filed by
Dr. Greenman ’s counsel made no mention of the Doe Defendants and did not argue
that the c omplaint failed to establish personal knowledge on their part

— the ground on
which the district court based its dismissal and on which the M ajority now relies. This ruling , too, conflicts with our Court’s precedent. See Nance v. Kelly , 912 F.2d 605, 607 (2d Cir. 1990) (reversing the district court’s sua sponte dismissal of the plaintiff ’s pro se complaint as frivolous because “ [s]o long as the in forma pauperis plaintiff raises a cognizable claim, dismissal on the basis of factual deficiencies in the complai nt must wait until the defendant attacks the lack of such details on a Rule 12(b)(6) motion”). T he district court’s dismissal of Darby’s complaint as to the Doe Defendants was thus premature.

V. Some general observations Unfortunately, Darby’s experience wit h such patently inadequate dental care does not appear to be unusual for many incarcerated individuals

. Our C ourt and courts
in our Circuit are all too familiar with troubling claims from inmates regarding inadequate dental care. See, e.g. , Gaffney , 805 F. App ’ x at 57 (prison dentist “evinced [a]16 conscious disregard” of inmate’s pain during extraction by ignoring cries of pain “and continuing to ‘dig’ and stab’ the area); Chance , 143 F.3d at 702 (prison dentists’ “inadequate treatment ” led to “ at least one and possibly three of [plaintiff’s] teeth degenerat[ing] to the point of requiring extraction. ”); Harrison , 219 F.3d at 134 (prison
officials “refused t o treat a cavity in one tooth unless [plaintiff] consented to the extraction of another tooth”); Dean v. Coughlin , 804 F.2d 207, 208 (2d Cir. 1986) ( remedial plan needed to fix a “ pattern of deliberate indifference by the defendants to

. . . inmates ’
serio us dental needs ”) ; Sharma v. D'Silva , 157 F. Supp. 3d 293, 301 (S.D.N.Y. 2016) (prison dentists failed to ensure plaintiff was seen by a specialist for reconstructive surgery, and improperly ground and over

- shaved plaintiff’s teeth without his consent, aggravating his condition and causing severe pain) ; Williams v. Jacobson , No. 15 CV 28 (VB), 2016 WL 2733136 , at *4

- 5 (S.D.N.Y. May 9, 2016) ( prison officials improperly delay ed fixing plaintiff’s broken dentures for over 18 months when dentures caused serious pain by cutting his upper gums whenever he ate)

. 9

In the course of a recen t federal lawsuit , it was revealed that the Michigan Department of Corrections require d prisoners to be incarcerated for two years before receiving any “routine” dental procedure, and as result, incarcerated persons’ otherwise treatable dental conditions, such as periodontal disease, worsened significantly over the

two

- year waiting period, causing “gratuitous pain, loss of bone, and tooth loss.” Dearduff v. Washington , 330 F.R.D. 452, 45 6

- 5 7 (E.D. Mich. 2019) (granting class certification in part)

. 10 Lack o f sufficient dental care in prison has been an issue in state

9 Not all claims of inadequate dental care have merited treatment as a constitutional violation , of
course. S ee, e.g. , Gomez v. C n ty. of Westchester , 649 F. A pp’x 93 (2d Cir. 2016) (summary order); Partee v. Wright , 335 F. App’x 85 (2d Cir. 2009) (summary order )

.

10 See also Keri Blakinger , ‘I Have No Teeth’: Michigan Prisoners Say Long Wait to See Dentist Is Inhumane, The Marshall Project (July 22, 2021, 6:00 AM), available at: https://www.themarshallproject.org/2021/07/22/i

- have

- no
- teeth

- michigan

- prisoners

- say
- long

-17 facilities as well

. See, e.g. , Parsons v. Ryan , 912 F.3d 486, 493 (9th Cir. 2018) ( Arizona ) ; Order, Parsons v. Ryan , 2:12

- cv
- 00601

- PHX

- ROS (D. Ariz. July 16, 2021) (rescinding stipulated settlement with the Arizona Department of Corrections because the prison system failed to improve its provision of physical, mental, and dental health care over a
six

- year period). In my view, we owe incarcerated persons such as Darby care that is, at the very least, not deliberately indifferent to their serious medical and dental conditions

.

CONCLUSION

For over four months while incarcerated at Rikers Island , Darby experienced
severe gum pain from an almost golf

- ball sized abscess in his mouth. He had trouble sleeping, eating, and talking , and lost twenty pounds as a result . As we have
commented before, “ A ny person who has spent a night tossing and turning in suffering from an abscessed tooth knows that dental pain can be excru [ c ] iatingly severe .” Chance , 143 F.3d at 702. Although he saw two prison dentists and fil ed over 15 sick call requests
that describ ed his symptoms in detail, Darby received no real care for a condition that was eminently treatable by gum surgery

. Instead, one dentist offere d a tooth extraction; the other, a dental cleaning.

I am concerned that t he M ajority’s decision affirming the d istrict c ourt’s dismissal of Darby’s complaint may work to immunize the relevant prison officials from liability in Darby’s and in other cases

. In my view, the course of events specifically alleged by Darby could

— if borne out by evidence

— reasonably support a determination
that the officials and dentists were deliberate ly indifferen t to his serious medical need s

.

wait

- to

- see
- dentist

- is

- inhumane ; Keri Blakinger, Toothless Texas inmates denied dentures in state prison, Houston Chron. (Sept. 23, 2018, 8:10 AM), available at : https://www.chron.com/news/houston

- texas/houston/article/Toothless

- Texas

- inmates

- denied

dentures

- in

- state

- 13245169.ph p

.18 The district court erred by dismissing his complaint under Rule 12(b)(6), and I believe the Majority errs now by affirming that dismissal. I respectfully dissent.