The opinion of the court was delivered by: Simandle, District Judge
HONORABLE JEROME B. SIMANDLE
Anthony Casapini ("Plaintiff" or "Casapini") is a federal prisoner currently confined at FCI Fairton. On March 18, 1992, Plaintiff was convicted under 18 U.S.C. § 1716, mailing injurious articles, and 18 U.S.C. § 844(d), interstate transportation of an explosive, in the United States District Court, Northern District of New York, and was sentenced to twenty-five years. This case arose on September 13, 1999, when Plaintiff filed a complaint in this Court alleging that the Bureau of Prisons, through its agents Mark C. McDowell, D.D.S. ("McDowell") and Wendy Roal ("Roal"), was denying his right to prophylactic dental care in violation of the Eighth Amendment and his civil rights under 42 U.S.C. § 1983. *fn1 In his complaint, Plaintiff demands relief in the form of a preliminary injunction mandating prophylactic dental examinations every six months, revision of the Health Service Manual, and $20,000.00 in punitive and compensatory damages, plus costs. Presently before this Court is the motion of Defendants McDowell and Roal for summary judgment of Plaintiff's Bivens and Eighth Amendment claims. On the grounds discussed below, this Court will grant the summary judgment motion with respect to both defendants and dismiss Plaintiff's suit.
Since his initial incarceration at FCI McKean on April 13, 1992, Mr. Casapini has received dental care fifteen times. Prior to his March 29, 1996 transfer from FCI McKean to FCI Fairton, Plaintiff received five prophylactic examinations (on February 11, 1993, May 9, 1994, December 24, 1994, March 2, 1995, and July 21, 1995) and two treatments for root hypersensitivity (on December 31, 1992 and March 8, 1993). Mr. Casapini's dental records from FCI Fairton reveal that he was seen a total of eight times between July, 1996 and November, 1999. Five of these visits (on July 15, 1996, March 10, 1997, March 13, 1997, July 15, 1997, and July 15, 1999) were for routine examinations and care, two visits (on November 12, 1998 and August 9, 1999) were emergency/sick call visits for pain and bleeding related to a partially erupted wisdom tooth, and the last visit (on November 29, 1999) was a consultation with an oral surgeon for wisdom tooth removal, which Mr. Casapini ultimately declined to undergo. (See Def. Br., Ex. 4, Casapini 11/30/99 Letter).
In his complaint, Plaintiff names only McDowell, the Chief Dental Officer at FCI Fairton, and Roal, the Administrator of the National Inmate Appeals in Washington, D.C. As Chief Dental Officer, Dr. McDowell is responsible for the dental care provided to all inmates at FCI Fairton in accordance with Bureau of Prisons Program Statement 6000.05, Health Services Manual, Chapter IV, Dental Services. The Federal Bureau of Prisons Health Services Manual requires that urgent dental care available to inmates on a 24-hour basis. (Health Service Manual, 9/15/96, Ch. 4 at 13, 27). Routine dental care is also made available to inmates "[a]s resources of staff, time, and materials are available." Id. at 27. Access to such care is controlled and regulated by use of a treatment list, monitored by dental care staff members. Id. In order to be placed on the treatment list for routine dental care, inmates must submit a written request to the dental staff. The Manual expressly provides that "[i]nmates on the routine treatment list should be called according to their chronological entry date unless there are health or administrative reasons to establish other priorities." Id. at 14.
Beginning in 1996, Plaintiff routinely filed Administrative Remedy Requests with the Warden and the Regional Director the Bureau of Prisons, all of which were denied. (See Def. Br., Ex. 5, Roberta Truman Declaration). Plaintiff requested that he be provided with dental check-ups and cleanings every six months, in accordance with the recommendations of the American Dental Association, and that the Bureau of Prison's Health Services Manual be revised to require all prisoners to receive dental check-ups and cleanings every six months. Plaintiff's final Administrative Remedy Appeal, dated January 23, 1999, was denied by Roal, *fn2 the Administrator of the National Inmate Appeals in Washington, D.C. In her denial of Plaintiff's appeal, Roal pointed out that the American Dental Association's recommendation for semiannual dental cleanings was a recommendation only, not a mandate that would require the Bureau of Prisons to alter its dental treatment policy.
On October 19, 1999, this Court issued an order directing the United States Marshal to serve a summons and copies of plaintiff's complaint on Defendants Roal and McDowell. On November 15, 1999, Plaintiff received a Process Receipt and Return Form from the United States Marshals Service indicating that a summons and complaint were mailed via certified mail to Roal on November 3, 1999, and that a signed postal return receipt, dated November 15, 1999, was received. The Marshal did not certify that he personally served Roal or that he had legal evidence of such service, only that he had sent the complaint via certified mail and received the signed receipt card. (See Pla. Traverse., Ex. 3(b)). No waiver of service was received from Ms. Roal. In a signed declaration dated April 13, 2000, Ms. Roal stated that although she had been advised of this litigation, she had never received a copy of the summons and complaint, and that she does not reside, conduct business, or own real property in the State of New Jersey. On November 29, 1999, plaintiff received a signed waiver of service from Defendant Mark. C. McDowell, which was corroborated by a Process Receipt and Return form from the United States Marshals Service.
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods. , 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether 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." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial. Celotex, 477 U.S. at 322-23.
In such situations, "the burden on the moving party may be discharged by `showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-30 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by ...