The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On January 29, 2003, Plaintiff was playing basketball in the Shawangunk Correctional Facility's gymnasium.*fn1 While rebounding a ball, Plaintiff landed on a large bubble in the gymnasium floor causing his foot to roll beneath him. Although Plaintiff attempted to "deal" with his injury by taking ibuprofen and elevating his foot, he sought medical attention when his foot began to swell and the pain worsened. The facility's medical center treated Plaintiff later that day; they wrapped his foot, gave him crutches and provided him with ibuprofen for the pain. X-rays taken the next day revealed no fractures or breaks; however, Plaintiff continued to experience pain in his right foot and sought regular medical attention for it until he was transferred out of Shawangunk on March 10, 2003.
Prior to Plaintiff's accident, prison officials, including Defendant, had been made aware of the problems with the gymnasium floor. In fact, over the years, several attempts to fix the floor were unsuccessful; and, in 1995, the conclusion was reached that replacement of the entire floor was necessary.*fn2 In 1995, the facility submitted a request to the Office of Facilities Planning for funding to underwrite the expense of replacing the gymnasium floor. However, funding was not approved until after Plaintiff's accident in 2003. Defendant assumed the role of superintendent in October 2002; and, at that time, he was informed of the defects in the gymnasium floor and of the pending request for funding to replace the floor. Plaintiff's evidence shows that inmates who had been injured due to the deteriorating condition of the floor had filed grievances prior to his accident. However, the officials did not limit the use of the gymnasium floor until after Plaintiff's accident.
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 alleging that Defendant Smith was deliberately indifferent to his health and safety by failing to provide him with safe living conditions. Specifically, Plaintiff alleges that he suffered physical injury when he was allowed onto the facility's basketball court despite known defects in the floor. Currently before the Court are Defendant's objections to Magistrate Judge Peebles' December 7, 2005 Report and Recommendation in which he recommended that the Court deny Defendant's motion for summary judgment on Plaintiff's Eighth Amendment claim and that the Court deny Defendant's motion for summary judgment based upon the ground of qualified immunity without prejudice to Defendant's right to renew that defense at trial.
A. Defendant's Objections
Defendant asserts that Magistrate Judge Peebles erred in each of his determinations with respect to Defendant's motion. First, Defendant asserts that Magistrate Judge Peebles erred in concluding that Plaintiff satisfied the objective requirement of an Eighth Amendment confinement claim because Plaintiff "has not demonstrated that the condition of the gym floor resulted in 'unquestioned and serious deprivations of basic human needs.'" See Defendant's Objections at ¶ 1 (quotation omitted). Second, Defendant asserts that Magistrate Judge Peebles erred in concluding that Plaintiff had satisfied the subjective requirement of an Eighth Amendment confinement claim because Plaintiff cannot demonstrate a culpable state of mind on the part of Defendant. See id. at ¶ 2. Third, Defendant asserts that Magistrate Judge Peebles erred in concluding that Defendant was not entitled to summary judgment based upon a qualified immunity defense because Defendant did not violate any clearly established rights of Plaintiff and it was objectively reasonable for him to wait for a determination from the Office of Facilities Planning before taking further action to repair the gym floor. See id. at ¶ 3. Finally, Defendant asserts that Magistrate Judge Peebles "erred in not concluding that, even accepting plaintiff's allegations as true for purposes of this motion, that plaintiff has done nothing more than assert a claim for negligence." See id. at ¶ 4 (emphasis added).
"The Court must make a 'de novo determination of those portions of the Report or specified proposed findings or recommendations to which an objection is made.'" Doe v. Goord, No. 04CV00570, 2006 WL 1041130, *1 (S.D.N.Y. Apr. 18, 2006) (quoting 28 U.S.C. § 636(b)(1)(C)) (other citation omitted). In conducting its de novo review, the court may "'arrive at its own, independent conclusions' regarding those portions [of the Report and Recommendation] to which objections were made." Id. (quotation omitted).
"Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law." Smith v. Oritz, No. 01 Civ. 5848, 2006 WL 1458404, *2 (S.D.N.Y. May 25, 2006) (citing Fed. R. Civ. P. 56(c)) (other citations omitted). Summary judgment shall be granted "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. at *3 (quoting Fed. R. Civ. P. 56(c)). Furthermore, the court must draw all factual inferences and resolve all ambiguities in favor of the non-moving party. See id. (citations omitted). The rule is best stated as follows: "'[v]iewing the evidence produced in the light most favorable to the non-movant, if a rational trier [of fact] could not find for the non-movant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.'" Id. (quoting Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991)). Moreover, when a plaintiff proceeds pro se, the court must construe his pleadings liberally; however, "'bald assertion[s],' unsupported by evidence, [are] not sufficient to overcome a motion for summary judgment." Id. (quotation omitted).
C. Eighth Amendment Conditions of Confinement Claim
The conditions of an inmate's confinement are subject to scrutiny under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). Prison officials must provide humane conditions of confinement and "must ensure that inmates receive adequate food, clothing, shelter and medical care, and must 'take reasonable measures to guarantee the safety of the inmates.'" Id. (quotation and other citations omitted) (emphasis added); see also Helling v. McKinney, 509 U.S. 25, 32 (1993) (listing "'food, clothing, shelter, medical care, and reasonable safety'" as basic human needs (quotation omitted)). "In order to establish a violation of his Eighth Amendment rights, an inmate must show (1) a deprivation that is 'objectively, sufficiently serious' that he was denied 'the minimal civilized measure of life's necessities;'" Gaston v. Coughlin, 249 F.2d 156, 164 (2d Cir. 2001) (quoting [Farmer,] at 834, 114 S.Ct. 1970), if the allegations are based upon a failure to prevent harm, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm," Farmer, 511 U.S. at 834, and "(2) a 'sufficiently culpable state of mind' on the part of the defendant official, such as deliberate indifference to inmate health or safety[,]" Gaston, 249 F.2d at 164 (quoting [Farmer,] at 834, 114 S.Ct. 1970).
In assessing whether a deprivation is "objectively, 'sufficiently serious,'" a court must assess not only the seriousness and likelihood of potential harm but also whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner ...