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PERKINS v. OBEY

February 10, 2004.

JESSE PERKINS, Plaintiff -v- C.O. OBEY, KHEE TINT MAW, M.D., and NEW YORK STATE DEP'T OF CORRECTIONS, Defendants


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

ORDER

On November 1, 2001, Magistrate Judge James C. Francis issued a Report and Recommendation ("Report") recommending that Defendants' motion to dismiss Plaintiff's claim for deliberate indifference to a serious medical condition be granted in part and denied in part. Defendants timely objected to the Report to the extent it concluded that Plaintiff was not required to exhaust his administrative remedies. Plaintiff, by letter dated November 9, 2001 ("Pl.'s Objection"), objected to the recommendation that the Complaint be dismissed as against Dr. Maw and proffered further factual assertions regarding the underlying events.

In reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "`need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also Brvant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-25 Page 2 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., 00 CV 7552, 2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002) (objections that are mere attempts to rehash issues that have already been decided should be reviewed for clear error); Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings).

  Defendants moved to dismiss Plaintiff's deliberate indifference claim on two grounds: (1) failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C.A § 1997e(a) (West 1994 & Supp. 2003) (the "PLRA"), and (2), with respect to Plaintiff's claim against Dr. Maw, failure to state a claim upon which relief can be granted under the Eighth Amendment. With respect to the first ground, Magistrate Judge Francis applied then-governing Second Circuit precedent and found that Plaintiff was not required to exhaust administrative remedies with respect to his deliberate indifference claim because his allegations suggest individualized abuse rather than prison conditions as a whole, a rationale that was subsequently rejected by the Supreme Court. In Porter v. Nussle, the Supreme Court held that the PLRA's exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or Page 3 some other wrong." 534 U.S. 516, 532 (2002). The Court therefore does not adopt that portion of the Report. Judge Francis further found, however, that even if exhaustion of the deliberate indifference claim were required, dismissal would be inappropriate because questions of fact exist as to whether Plaintiff fully exhausted his administrative remedies. Defendants concede the existence of this factual dispute. See Letter from Maria Hartofilis dated November 14, 2001. Accordingly Defendants' motion to dismiss the deliberate indifference claim as non-exhausted is denied.*fn1

  Judge Francis also found that Plaintiff's deliberate indifference claim fails to state a cause of action under the Eighth Amendment. Judge Francis recommended granting the branch of Defendants' motion that sought dismissal of Plaintiff's Eighth Amendment claim as against Dr. Maw. Although Judge Francis found Plaintiff's allegations concerning the nature of his injuries at least arguably sufficient to support an Eighth Amendment claim, he recommended that the motion be granted because the allegations of the Amended Complaint were insufficient to support a finding of the requisite culpable state of mind on Dr. Maw's part. Plaintiff objected to this aspect of the Report, proffering additional factual assertions concerning Dr. Maw's knowledge of Plaintiff's efforts to see him over the four-month period immediately following the alleged assault in which Plaintiff claims his injuries were sustained. (Objection at 1.) The Court has reviewed de novo the aspects of the Report relating to Plaintiff's claim against Dr. Maw.

  The Court's task in evaluating a motion to dismiss under Rule 12(b)(6) is to take as true the facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Page 4 Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). The action must not be dismissed unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Furthermore, Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(1). "Such a statement must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citing Conley v. Gibson, 355 U.S. at 47).

  Plaintiff alleges in his Amended Complaint that he was unable to see Dr. Maw until four months after he was allegedly assaulted by Defendant Obey. Judge Francis concluded that the Amended Complaint's factual allegations were insufficient, because Plaintiff did not allege that Dr. Maw was aware of Plaintiff's health condition, to support a reasonable inference that Dr. Maw had the requisite culpable state of mind. In his Amended Complaint, Plaintiff alleges that he was examined and photographed by a nurse on his initial emergency room visit and that the nurse made an appointment for him to see Dr. Maw. Plaintiff further alleges that, over the next four months, Dr. Maw "was not around" on Plaintiff's scheduled appointment dates, that, when he was able to see Dr. Maw, the doctor was always late, and that the doctor did not examine him sufficiently or treat all of his complaints.*fn2 The Court, having reviewed de novo the sufficiency of these allegations, concurs with Judge Francis' determinations that they are insufficient to allege that Dr. Maw had the requisite state of mind and that, to the extent Plaintiff asserts that Dr. Maw's alleged Page 5 lateness in keeping appointments (as opposed to failure to see the Plaintiff on scheduled appointment dates at all) violated the Eighth Amendment, the Amended Complaint fails to state a claim.

  However, Plaintiff proffered additional material factual assertions in his Objection to the Report. Specifically, Plaintiff asserted in the Objection that Dr. Maw was aware of the missed appointments, that Dr. Maw ignored those appointments and "just let [Plaintiff] suffer for months without any kind of treatment." (Objection at 1.) Plaintiff's newly-proffered allegation that Dr. Maw was aware of and ignored his need for treatment, taken together with the Amended Complaint's allegations concerning the nature of his injuries and his emergency room examination, could support the requisite inference of a culpable state of mind. Bearing in mind the Court's obligation to construe liberally pro se pleadings and the instruction in Rule 15(a) of the Federal Rules of Civil Procedure that leave to amend pleadings should be freely given when justice so requires, the Court will adopt Judge Francis' recommendation that the Complaint be dismissed as against Dr. Maw, but will afford Plaintiff the opportunity to file and serve a further amendment to his Complaint that incorporates his additional allegations regarding Dr. Maw.

  CONCLUSION

  For the foregoing reasons, Defendants' motion is denied to the extent it seeks dismissal of Plaintiff's deliberate indifference claim on exhaustion grounds and is granted, without prejudice to the filing and service of a Second Amended Complaint, to the extent it seeks dismissal of Plaintiff's claim against Dr. Maw.

  Plaintiff has until April 12, 2004, to file with the Court and serve on defense counsel his Second Amended Complaint. The Second Amended Complaint should include the allegations in the Amended Complaint and the factual allegations concerning Dr. Maw that were Page 6 presented in Plaintiff's Objection. The Court is enclosing with Plaintiff's copy of this decision a form on which he can write his Second Amended Complaint, as well as copies of the Amended Complaint and the Objection.

  The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  Magistrate Judge Francis' ...


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