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Kearse v. Lincoln Hospital

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


June 17, 2009

JAMAL KEARSE, PLAINTIFF,
v.
LINCOLN HOSPITAL (BRONX, NEW YORK), HAND SPECIALIST JOHN DOE LINCOLN HOSPITAL BRONX N.Y.), DEFENDANTS.

The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

DOCUMENT ELECTRONICALLY FILED

ORDER

Pro se Plaintiff Jamal Kearse brings this action against Defendants Lincoln Hospital and Hand Specialist John Doe, an unidentified physician, alleging violations of his constitutional rights in connection with medical treatment he received for a hand injury.

On December 17, 2006, Kearse, then in police custody in the Bronx, was admitted to Lincoln Hospital for treatment of an injury to his right hand. Kearse alleges that on December 22, Hand Specialist John Doe discharged him from the hospital without taking x-rays, which would have revealed that Kearse's hand was broken, and despite the fact that his hand was still visibly infected. Two days later, on December 24, Kearse was admitted to Bellevue Hospital for treatment of the same injury, which ultimately required surgery.

Kearse filed his original Complaint on March 19, 2007, naming Lincoln Hospital and Hand Specialist John Doe as Defendants and seeking unspecified monetary damages for pain and suffering, pursuant to 42 U.S.C. § 1983. On June 4, Chief Judge Kimba Wood dismissed, sua sponte, Kearse's claims against Lincoln Hospital on the grounds that the hospital is not a "person" and therefore does not have the capacity to be sued under Section 1983. (Order dated June 4, 2007 ("Wood Order") at 3-4.) With respect to Kearse's claims against Hand Specialist John Doe, Chief Judge Wood granted Kearse 60 days' leave to file an amended complaint identifying the physician. (Id. at 3.)

Kearse filed his Amended Complaint on August 3, 2007. The Amended Complaint named "Hand Specialist (Dr. John Doe) at Lincoln Hospital Bronx, N.Y." as a Defendant. (Amended Complaint ("Am. Compl.") at 2.) It did not, however, provide any further information regarding the physician's identity. Moreover, despite Chief Judge Wood's Order, the Amended Complaint made a claim for relief against Lincoln Hospital. (Id. at 5.)

The matter was reassigned to this Court on August 10, 2007. On August 22, the Court referred the matter to Magistrate Judge James C. Francis IV for general pretrial proceedings. On September 15, 2008, Lincoln Hospital moved to dismiss the Amended Complaint on behalf of both itself and Hand Specialist John Doe. On December 5, 2008, Magistrate Judge Francis issued a Report & Recommendation ("R&R") recommending that this Court grant Defendants' motion. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), Magistrate Judge Francis provided the parties with 10 days from service of the R&R to file written objections, and advised them that failure to raise timely objections would preclude challenging the R&R on appeal. (R&R at 5.) Neither party has objected to the R&R.

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

20090617

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