United States District Court, S.D. New York
May 4, 2005.
INGER LEACOCK, Plaintiff,
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
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
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
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
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.
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
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
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
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
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
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
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