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LEACOCK v. NEW YORK CITY HEALTH HOSPITAL CORPORATION

United States District Court, S.D. New York


May 4, 2005.

INGER LEACOCK, Plaintiff,
v.
NEW YORK CITY HEALTH HOSPITAL CORPORATION, ST. BARNABAS HOSPITAL PRISON HEALTH DEPARTMENT, DEPARTMENT OF CORRECTIONS, DOCTOR OAKS, DOCTOR MAC, DOCTOR LEVEILLE, DOCTOR P.A. JIMOLT, Defendants.

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

SUPPLEMENTAL REPORT AND RECOMMENDATION

On March 1, 2005, this Court recommended that a motion to dismiss filed by the only two defendants served in this matter, Dr. Leveille and Physician's Assistant ("P.A.") Jimoh, be granted on the ground that the plaintiff, Inger Leacock, had failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)(a). See Leacock v. New York City Health Hosp. Corp., 2005 WL 483363 (S.D.N.Y. Mar. 1, 2005). Familiarity with that Report and Recommendation is assumed.

On March 16, 2005, Judge Richard M. Berman adopted the Report and Recommendation and granted defendants' motion to dismiss. See Order, dated March 16, 2005 (Docket #32), at 2-3. In a letter dated April 6, 2005, however, the defendants sought to move pursuant to Fed.R.Civ.P. 59(e) and Local Civ. R. 6.3 for reconsideration of the March 16, 2005 Order. See Letter from Sheryl A. Bruzzese to the Honorable Richard Berman, dated April 6, 2005 (see Docket # 34) ("Apr. 6 Letter"), at 1 & n. 1 . In this letter, defendants admit that they incorrectly argued in their original motion papers that the New York City Department of Corrections' ("DOC") "Inmate Grievance Resolution Program" ("IGRP") applied to the claims in this case and seek reconsideration of the March 16, 2005 Order. See id. at 2. The defendants now concede that the IGRP applies only to claims against employees of the DOC. See id. at 2-3. Though the letter does not say so explicitly, the two defendants in this case apparently are not employed by the DOC. See id. at 3. The defendants nonetheless seek dismissal of the complaint based on the grounds raised in Point II of the memorandum of law supporting their motion to dismiss, id., which argues that the plaintiff has failed to state a claim of deliberate indifference. See Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint, filed August 17, 2004 (Docket #26) ("Def. Mem."), at 9-12.

  On April 7, 2005, Judge Berman granted defendants' motion for reconsideration and referred the matter to the undersigned. See Order, dated April 7, 2005 (Docket #35). For the following reasons, the March 16, 2005 Order dismissing the amended complaint should be vacated. Defendants' motion to dismiss the amended complaint for failure to state a claim of deliberate indifference should be denied.

  We first discuss the request to reconsider the Court's ruling on exhaustion of administrative remedies. Next, we discuss the motion to dismiss the amended complaint for failure to state a claim of deliberate indifference.

  I. MOTION FOR RECONSIDERATION ON EXHAUSTION OF ADMINISTRATIVE REMEDIES

  Under Local Civ. R. 6.3 and Fed.R.Civ.P. 59(e), reconsideration is appropriate when the court has "overlooked controlling decisions or factual matters that were put before it on the underlying motion." See Davis v. The Gap, Inc., 186 F.R.D. 322, 323-24 (S.D.N.Y. 1999) (citing cases); accord Oates v. City of New York, 2004 WL 1752832, at *1 (S.D.N.Y. Aug. 4, 2004); Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993). In recommending that the amended complaint be dismissed on the ground that Leacock failed to exhaust administrative remedies, the Court accepted the defendants' argument (uncontested by Leacock) that the DOC's inmate grievance procedures applied to the claims alleged by Leacock. The Court now accepts the defendants' concession that these procedures in fact do not apply. See Apr. 6 Letter at 2. Their concession is supported by two cases (one an unpublished decision of the Second Circuit), both of which reflect that the Corporation Counsel has previously conceded that the IGRP does not apply to claims asserted against medical personnel at City jails: Timmons v. Pereiro, 2004 WL 322702, at *1-*2 (2d Cir. Feb. 18, 2004); and Oates, 2004 WL 1752832, at *3; see also Directive, Inmate Grievance Resolution Program, dated March 4, 1985 (reproduced as Exhibit D to Notice of Motion, dated May 14, 2004 (Docket #25) ("Notice of Motion")), at 2 (listing as one of the "non-grievable issues" any matter that is "outside the jurisdiction" of the DOC).

  At first blush, it would seem that Fed.R.Civ.P. 59(e) and Local Civ. R. 6.3 do not apply as the information regarding the defendants' status and the inapplicability of the IGRP was not actually "put before" the Court by any party. Nonetheless, the reconsideration rule is intended to deter parties from raising new matters in a motion for reconsideration following an adverse decision. Here, however, the decision was not adverse to the defendants and thus the rationale of the rule does not apply. In any event, this Court need not rely on the reconsideration rule since it is free to reconsider its prior decision. See Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 152 F.R.D. 18, 24-25 (S.D.N.Y. 1993) (the court is not precluded "from reconsidering its prior opinions, especially in light of `an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice'") (quoting DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73, 76 (2d Cir. 1992)); Bandes v. Harlow & Jones, Inc., 826 F. Supp. 700, 706 (S.D.N.Y. 1993) ("[C]ompelling circumstances, such as an intervening change of law, the availability of new evidence, the need to correct a clear error, or to prevent manifest injustice permit a court to reconsider or disregard its earlier ruling.") (citation and internal quotation marks omitted). Because of the new matters put forth by the defendants, it is apparent that the original decision did not follow the Second Circuit's injunction to "establish from a legally sufficient source that an administrative remedy is applicable." Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003) (citing Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)). Thus, the claims contained in Leacock's amended complaint alleging that medical personnel were deliberately indifferent to her serious medical needs should not be dismissed based on her failure to exhaust administrative remedies.

  Because administrative remedies were not "available" to Leacock under 42 U.S.C. § 1997e(a) with respect to the claims she has asserted against Dr. Leveille and P.A. Jimoh, we now discuss these defendants' remaining contention that Leacock's claims must be dismissed for failure to state a claim of deliberate indifference. See Def. Mem. at 9-12. II. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) FOR FAILURE TO STATE A CLAIM OF DELIBERATE INDIFFERENCE

  A. The Rule 12(b)(6) Standard

  In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1 (2002); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "[A] complaint should not be dismissed for failure to state a claim 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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted); see also Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) ("At the 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'") (quoting Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996)) (alteration in original). In making this evaluation, complaints drafted by pro se plaintiffs are held "`to less stringent standards than formal pleadings drafted by lawyers,'" Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they "should be interpreted `to raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

  B. Law Governing Claims of Deliberate Indifference

  To state a claim for deprivation of medical treatment in violation of the Eighth Amendment, a prisoner must show that the defendant acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995).

  Under the objective prong, the alleged medical need must be "sufficiently serious." Chance, 143 F.3d at 702 (quoting Hathaway, 37 F.3d at 66) (internal quotation marks omitted). The Second Circuit has held that a "sufficiently serious" injury contemplates "`a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)); accord Chance, 143 F.3d at 702. Thus, a "sufficiently serious" injury exists "where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance, 143 F.3d at 702 (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)) (internal quotation marks omitted); accord Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000); see also Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 310 (S.D.N.Y. 2001) (a serious injury occurs "if `unnecessary and wanton infliction of pain' results, or where the denial of treatment causes an inmate to suffer a life-long handicap or permanent loss") (quoting Harrison, 219 F.3d at 136). In determining whether a serious medical need exists, the Second Circuit has noted several factors for courts to consider, including "`[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) (alteration in original). Under the subjective component, the prisoner must demonstrate that the defendants acted with "a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66 (citing Wilson, 501 U.S. at 298). The subjective element of the deliberate indifference test "requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Id. (citing Farmer v. Brennan, 511 U.S. 825 (1994)). Specifically, a prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("Deliberate indifference is `a state of mind that is the equivalent of criminal recklessness.'") (quoting Hathaway, 99 F.3d at 553), cert. denied, 125 S. Ct. 971 (2005); Wandell v. Koenigsmann, 2000 WL 1036030, at *3 (S.D.N.Y. July 27, 2000) ("In order to avoid dismissal, plaintiff must allege conduct that `shocks the conscience.'") (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).

  "It is well-established that mere disagreement over the proper treatment does not create a constitutional claim." 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." Id. (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)). "Moreover, negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim." Id. (citing Estelle, 429 U.S. at 105-06). Nonetheless,

while mere medical malpractice is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate indifference; namely, when the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm. Accordingly, not every instance of medical malpractice is, a priori, precluded from constituting deliberate indifference.
Hathaway, 99 F.3d at 553 (internal quotation marks and citation omitted); accord Chance, 143 F.3d at 703.

  C. Analysis

  The facts in Chance, 143 F.3d at 700-02, are sufficiently analogous to the present situation that it is worth recounting them in some detail. In Chance, the plaintiff alleged that in November 1994 a doctor he visited, Dr. Moore, had recommended that two of his teeth, number one and number eight, needed to be extracted. Id. at 700. The plaintiff refused this treatment because he thought it to be unnecessary. Id. Dr. Moore examined the plaintiff again in March 1995 and recommended that another tooth, number three, be extracted. Id. Dr. Moore informed Dr. Murphy, an oral surgeon at the prison, of his recommendation. Id. The plaintiff again refused this treatment because he thought it to be unnecessary. Id. The plaintiff was examined by another dentist in February 1996 who advised him that, while tooth number one had to be extracted, tooth number eight could be filled. See id. at 701. Yet another dentist subsequently filled tooth number eight. Id.

  In his complaint, the plaintiff alleged that "less invasive procedures, such as filling his teeth instead of extracting them, would have remedied his dental problems." Id. at 700-01. Specifically, the plaintiff claimed that had Dr. Moore and/or Dr. Murphy filled his teeth at the time he refused extraction, tooth number one could have been saved and extraction would not have been necessary. Id. at 701. The plaintiff also alleged in his complaint that Dr. Moore and Dr. Murphy recommended extraction because they would have obtained a financial benefit if the teeth were extracted. See id. at 700. The plaintiff, therefore, asserted that the defendants were deliberately indifferent to his medical needs. Id. at 701.

  The Second Circuit reversed the judgment of the district court dismissing the complaint pursuant to Rule 12(b)(6). Id. at 704. The court first determined that the plaintiff had adequately alleged in his complaint that he had a serious medical condition by asserting that he suffered from "great pain" for a period of at least six months, that his teeth deteriorated, that he was not able to chew properly, that he choked on his food, and that these conditions were the result of Dr. Moore's and Dr. Murphy's actions. See id. at 702 (internal quotation marks omitted). In concluding that plaintiff's injury was serious, the court found it especially significant that plaintiff alleged that "as a result of Dr. Moore's and Dr. Murphy's inadequate treatment, at least one and possibly three of his teeth have degenerated to the point of requiring extraction." Id.

  The Chance court also concluded that the plaintiff had adequately alleged that the defendants acted with deliberate indifference. See id. at 704. The court noted that the plaintiff

 

claims that Dr. Moore and Dr. Murphy recommended an unnecessary course of treatment, and that other dentists had recommended less invasive procedures that would have saved his teeth. Crucially, he has also alleged that Dr. Moore and Dr. Murphy recommended extraction not on the basis of their medical views, but because of monetary incentives. This allegation of ulterior motives, if proven true, would show that the defendants had a culpable state of mind and that their choice of treatment was intentionally wrong and did not derive from sound medical judgment. It may be that [plaintiff] has no proof whatsoever of this improper motive, and that lack of proof may become apparent at summary judgment. But even if we think it highly unlikely that [plaintiff] will be able to prove his allegations, that fact does not justify dismissal for failure to state a claim.
Id. at 703-04. Accepting the allegations in the amended complaint as true, Leacock has stated a claim sufficient to withstand the defendants' motion to dismiss. With respect to the seriousness of the injury, Leacock asserts in her amended complaint that, following the incident at Rikers Island, her finger "was . . . swollen" for nearly three months and that she went through "a lot of pain fo[r] a long time." Amended Complaint (annexed as Exhibit B to Notice of Motion) ("Am. Compl."), at 5.*fn1 Leacock alleged that she was not given access to adequate medical treatment for a period of nearly three months, and that the only reason why she was finally brought to the hospital was because of a letter written on her behalf by the Prisoners' Rights Project. See id. Leacock also alleges that, after being denied access to adequate treatment for nearly three months, her injured finger had to be operated on once she arrived at Elmhurst Hospital. See id. This allegation is especially important because it indicates that, after her arrival at the hospital, the attending medical personnel saw her injury as being serious enough to warrant surgical intervention. See Chance, 143 F.3d at 702 (one factor for determining seriousness of condition is whether "a reasonable doctor or patient" would find the condition "important and worthy of comment or treatment") (internal quotation marks and citation omitted); Sonds, 151 F. Supp. 2d at 310 (medical condition is serious if, inter alia, "it is `one that has been diagnosed by a physician as requiring treatment'") (quoting Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999)). Leacock also claims that her finger "is damaged for the rest of [her] life," "will never be the same again," and that she is "still suffering." Am. Compl. at 6. Construing Leacock's pro se complaint liberally, it adequately alleges that Leacock's injury was "sufficiently serious." See Chance, 143 F.3d at 702; see also Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir. 1996) (inmate's need for prescription eyeglasses constitutes a serious medical condition where, because he did not have the glasses, the inmate suffered headaches, his vision deteriorated, and he alleged that his "visual deficiencies" caused him to "fall or walk into objects"); Sonds, 151 F. Supp. 2d at 310 (a serious injury occurs "where the denial of treatment causes an inmate to suffer a life-long handicap or permanent loss") (citation omitted).*fn2 Turning to the subjective prong of the deliberate indifference analysis, a liberal construction of Leacock's pro se complaint shows that she has adequately pled that the defendants' reasons for denying her access to medical treatment were not merely negligent, but rather, reflected "an act or a failure to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm." Hathaway, 99 F.3d at 553 (internal quotation marks and citation omitted). Although Leacock at one point suggests that it was defendants' negligence that caused her injuries, see Am. Compl. at 6 — an allegation that is obviously insufficient to show deliberate indifference — Leacock also makes the following allegation in her amended complaint:
I Inger Leacock is [sic] asking the court? to help [solve] this problem with medical people who have [a] position in the jail system. When you take a job as a doctor or nurse you take an? oath to help the sick and saving peoples [sic] lives and you don't use your authority toward [an] individual in the wrong way [be]cause in your eye sight th[at] person is a criminal.
Id. (emphasis added). Construing this statement liberally and in combination with the other allegations in her complaint, Leacock is alleging that the defendants denied her adequate medical care based upon their "authority" over her and due solely to the fact that she was a "criminal." As was the case in Chase, "[t]his allegation of ulterior motives, if proven true, would show that the defendants had a culpable state of mind and that their choice of treatment was intentionally wrong and did not derive from sound medical judgment." 143 F.3d at 704; see also Harrison, 219 F.3d at 139 ("Consciously disregarding an inmate's legitimate medical needs is not `mere medical malpractice.'") (quoting Hathaway, 99 F.3d at 553); Hathaway, 99 F.3d at 553 ("[W]hile mere medical malpractice is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate indifference; namely, when the malpractice involves culpable recklessness.") (internal quotation marks and citation omitted).

  Moreover, Leacock has adequately alleged that defendants were "subjectively aware" of her serious medical needs, Koehl, 85 F.3d at 88, since her amended complaint alleges that a number of medical personnel, including Dr. Leveille and P.A. Jimoh, personally examined her. See Am. Compl. at 5. The fact that Leacock avers both that defendants were aware of her serious medical needs, and that they disregarded those needs by delaying her access to treatment due to her status as a "criminal," is sufficient to allege that defendants acted with deliberate indifference to her serious medical needs. Contrary to defendants' argument, see Apr. 6 Letter at 3, there is no indication in the complaint that any delay in providing treatment was attributable solely to DOC personnel as opposed to non-DOC personnel, including the two named defendants.

  Accordingly, because the Court "cannot say at this stage that it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle [her] to relief," Chance, 143 F.3d at 704 (internal quotation marks and citations omitted), dismissal under Rule 12(b)(6) is inappropriate.

  Conclusion

  For the foregoing reasons, the March 16, 2005 Order dismissing the amended complaint due to Leacock's failure to exhaust administrative remedies should be vacated. Defendants' motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) should be denied. The Clerk should be requested to re-open the case. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard M. Berman, 40 Centre Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Berman. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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