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May 4, 2005.


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


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.


  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 ...

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