Opinion
03 Civ. 5440 (RMB)(GWG).
July 11, 2005
DECISION AND ORDER
I. Background
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").
The record does not contain Defendants' first names.
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 [32] ("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 [34], 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 [35].) 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.
II. Standard of Review
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 is conformity with the law.
IV. Conclusion and Order
For the reasons stated therein and herein, the March 16 Order is vacated and Defendants' motion to dismiss is denied. The Clerk is respectfully requested to re-open this case.
This action is re-referred to Magistrate Judge Gorenstein for general pretrial issues.