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