The opinion of the court was delivered by: RICHARD BERMAN, District Judge
On or about October 22, 2003, Inger Leacock ("Plaintiff" or
"Leacock"), appearing pro se, filed an amended complaint ("Am.
Compl." or "Amended Complaint"), alleging violations of
42 U.S.C. § 1983 in connection with the medical treatment of a finger
injury she sustained on December 6, 2002. (See Am. Compl. at
4-5.) Leacock served two defendants, Dr. Leveille and Physician's
Assistant ("P.A.") Jimoh (collectively, "Defendants").*fn1
On or about May 14, 2004, Defendants moved to dismiss the
Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. (See Defendants' Motion to Dismiss, dated
May 14, 2004.) On March 1, 2005, United States Magistrate Judge
Gabriel W. Gorenstein, to whom the matter had been referred,
issued a Report and Recommendation and recommended that
Defendants' motion be granted on the ground that 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., No. 03 Civ. 5440,
2005 WL 483363 (S.D.N.Y. Mar. 1, 2005). On March 16, 2005, this
Court adopted Magistrate Judge Gorenstein's recommendation and granted Defendants' motion to
dismiss. (See Order, dated March 16, 2005  ("March 16
Order"), at 2-3.)
By letter dated April 6, 2005, Defendants moved pursuant to
Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3
for reconsideration of the March 16 Order, asserting that
"[a]lthough [D]efendants argued in their memorandum of law that
any allegation that [P]laintiff was denied adequate medical
attention should be dismissed because it pertained to `access to
medical services' and were therefore grievable, some of
[P]laintiff's claims could be construed to be claims about
medical treatment or diagnosis and do not fall under" the New
York City Department of Corrections' ("DOC") "Inmate Grievance
Resolution Program" ("IGRP"). (See Letter from Sheryl A.
Bruzzese to the Court, dated April 6, 2005 , at 2.)
Defendants nonetheless "submit that the claims as against the
hospital employees should be dismissed for the reasons set forth
in Point II of their Memorandum of Law, as opposed to dismissal
on the grounds that Plaintiff failed to exhaust her
administrative remedies with respect to these claims." (Id.)
On April 7, 2005, this Court re-referred the matter to
Magistrate Judge Gorenstein for further consideration. (See
Order, dated April 7, 2005 .) On May 4, 2005, Magistrate
Judge Gorenstein issued a Supplemental Report and Recommendation
("Supplemental Report" or "Supp. Report"), recommending that the
March 16 Order dismissing the Amended Complaint be vacated and
that Defendants' motion to dismiss for failure to state a claim
should be denied 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."
(Supp. Report at 2.) Magistrate Judge Gorenstein also found that,
"accepting the allegations in the amended complaint as true, Leacock has stated a claim sufficient to
withstand the defendants' motion to dismiss." (Id. at 10.)
The Supplemental Report advised the parties that "[p]ursuant to
28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of
Civil Procedure, the parties shall have ten (10) days from
service of this Report and Recommendation to file any
objections." (Supp. Report at 14.) It also advised that "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." (Id.) As of the date of this Order,
the Court has received no objections to the Supplemental Report.
For the reasons set forth below, the Supplemental Report is
adopted in its entirety.
The Court may adopt those portions of a magistrate's report to
which no objections have been made and which are not facially
erroneous. See Fed.R.Civ.P. 72(b); see, e.g., Letizia v.
Walker, No. 97 Civ. 0333, 1998 WL 567840, at *1 (W.D.N.Y. Aug.
27, 1998); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y.
1991); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985). The Court conducts a de novo review of those portions
of a magistrate's report to which objections have been made.
See, e.g., Letizia, 1998 WL 567840, at *1; Pizarro,
776 F. Supp. at 817. Once objections have been received, a district
judge may accept, reject, or modify, in whole or in part, the
findings and recommendations of the magistrate. See, e.g.,
Deluca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994);
Walker v. Hood, 679 F. Supp. 272, 274 (S.D.N.Y. 1988).
Where, as here, the petitioner is proceeding pro se,
"leniency is generally accorded." Bey v. Human Res. Admin., No.
97 Civ. 6616, 1999 WL 3112, at *2 (E.D.N.Y. Jan. 12, 1999). III. Analysis
The facts as set forth in the Supplemental Report are
incorporated herein by reference.
The Supplemental Report is not clearly erroneous, see
Pizarro, 716 F. Supp. at 817, and, in fact ...