The opinion of the court was delivered by: Garaufis, United States District Judge
Plaintiff Woodrow Flemming ("Plaintiff" or "Flemming") brought this pro se action pursuant to 42 U.S.C. § 1983, alleging that defendants City of New York ("New York City" or "the City"), Yves Gauvin, M.D. ("Dr. Gauvin"), and Suzette McKenzie ("McKenzie"), other unnamed medical staff ("John Doe" and "Jane Doe"), and the Rikers Island Annex (collectively, "the Defendants") failed to provide medical treatment to Plaintiff, resulting in permanent injury, and that these actions violated the Eighth Amendment of the U.S. Constitution. Defendants move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.
Plaintiff during all relevant periods was a prisoner in the Rikers Island municipal correctional facility ("the facility"). On September 1, 2002, Flemming suffered an injury while exiting his cell in the facility when he slipped on a pool of water from a nearby leak in the showers and fell on his back. (Am. Compl. at 4.) Defendants transported Plaintiff to Bellevue Hospital, where he had his X-ray taken, and he was provided with pain medication. (Id.) Early in November 2002, Flemming was admitted to the facility's North Infirmary Command Annex ("the infirmary"), where he was treated by Dr. Gauvin, his treating physician. (Id.) Plaintiff reported to Dr. Gauvin that he continued to experience pain from the fall, and Dr. Gauvin recommended a Magnetic Resonance Imaging ("MRI") of his back, and told him that he would arrange for it. (Id.) Instead, Dr. Gauvin arranged to take an additional X-ray of Plaintiff, which showed injuries in the L4-L5 discs. (Id.) Dr. Gauvin then took leave from the infirmary between November 2002 and October 2003. (Id. at 5.)
In December 2002, Plaintiff complained again about back pain to McKensie, the clinic administrator at the infirmary, who said that she would arrange for additional X-rays and an MRI of Plaintiff's back. (Id.) Plaintiff had numerous subsequent discussions with McKensie through September 2003, in which she assured Plaintiff that the infirmary would take an MRI of him. (Id.) However, it never did. (Id.) From November 2002 through October 2003, while Dr. Gauvin was not practicing at the infirmary, Plaintiff asked for treatment from other medical staff at the infirmary, who told him to wait until Dr. Gauvin returned. (Id.)
Plaintiff alleges that as a result of not receiving an MRI, he is in constant pain, uses a wheel chair, walker, and cane to ambulate, cannot walk for long periods, and has difficulty sleeping. (Id.) Plaintiff alleges that his injuries are the result of Defendants' failure to provide necessary medical treatment in violation of his rights under the Eighth Amendment of the U.S. Constitution.*fn1 (Id. at 5.)
Plaintiff internally grieved his treatment denial on February 5, 2003 and August 18, 2003, and appealed the denial of these grievances on September 4, 2003. (Am. Compl. at 10-12.) After Plaintiff's administrative complaints were denied, he timely filed this suit.
Plaintiff's pro se complaint was transferred from the Southern District of New York to this court on February 5, 2003. On July 8, 2003, I issued a Memorandum and Order that, while granting his application for in forma pauperis relief, dismissed the complaint for failure to state a claim. (Memorandum and Order, dated July 8, 2003 ("7/8/03 M&O") at 4.) I first found that Plaintiff failed to allege that his rights were denied pursuant to a "policy or custom" of New York City, which is required to maintain a § 1983 suit against a municipality. (Id. at 2 (citing Bd. of Country Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997)). I also found that Plaintiff failed to state a claim for inadequate medical treatment in violation of the Eighth Amendment of the U.S. Constitution*fn2 because he failed to allege that "defendants delayed, denied or interfered with plaintiff's medical treatment." (Id. at 3.) As Plaintiff filed his complaint pro se, I directed him to amend his complaint, naming the individuals who allegedly acted under color of law and setting forth "specific facts to establish that defendants were deliberately indifferent to his serious medical needs." (Id. at 3.)
On August 16, 2003, Plaintiff responded to the 7/8/03 M&O by requesting this court's assistance in ascertaining the names of the individuals who treated him. (Pl's Ltr. to the Court, dated Aug. 16, 2003.) After vacating an earlier entered judgment, this court vacated the dismissal and permitted Plaintiff an extension to amend the Complaint after identifying medical personnel associated with his treatment. (Order, dated Oct. 31, 2003.)
From August 2003 through December 2003, Plaintiff filed numerous letters with this court indicating that he had been unable to identify the treating medical staff, and on April 22, 2004, I ordered counsel for New York City to provide the names of medical staff involved in Plaintiff's treatment. (Order, dated April 22, 2004, at 2-3, 6-7.) Furthermore, I dismissed Plaintiff's claim regarding his treatment by medical staff at Bellevue Hospital, inasmuch as records submitted by Plaintiff made clear that Plaintiff received appropriate medical treatment there, and ordered removed from the caption all subdivisions of DOC. (Id. at 4-5.) However, I permitted Plaintiff to amend his Complaint as against Rikers Island medical staff based on his allegation that he was completely denied medical treatment by them. (Id. at 5.)
On August 9, 2004, Plaintiff filed the Amended Complaint that this court relies on for its recitation of the facts in this M&O. After a series of attempts to serve Defendants by the U.S. Marshals Service, Defendants appeared and moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on November 10, 2005. On November 21, 2005, Plaintiff filed a "Notice of Motion Under Rule 56(c)" that in sum and substance opposes Defendant's Rule 12(b)(6) motion.*fn3 (See Pl's Notice of Motion Under Rule 56(c), dated Nov. 21, 2005 ("Pl.'s Opp. Def's' Mot. Dismiss").) As Plaintiff's submissions to the court proffers no evidence in support of his claims, and instead opposes Defendant's motion based on his allegations in the Amended Complaint, I deem ...