The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff filed the complaint in this action on January 21, 2004. In his complaint, he asserts four causes of action, pursuant to 42 U.S.C. § 1983. Specifically, he claims that Defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. In addition, he claims that Defendants threatened and harassed him, retaliated against him and denied him equal protection.
Defendants moved for summary judgment on the grounds that no reasonable factfinder could conclude either that Plaintiff had a serious medical need or that Defendants were deliberately indifferent to any such need. In addition, Defendants requested that the Court dismiss Plaintiff's claims against Defendants "John Doe" and Lester Wright because Plaintiff failed to identify the "John Doe" Defendant and failed to serve either the "John Doe" Defendant or Defendant Wright. Plaintiff did not file any papers in opposition to Defendants' motion despite the fact that the Court granted his request for an extension of time in which to do so. See Dkt. No. 37.
On March 8, 2006, Magistrate Judge Peebles issued a Report and Recommendation in which he recommended that the Court grant Defendants' motion for summary judgment and their request to dismiss the claims against Defendants "John Doe" and Wright. See Dkt. No. 41. Currently before the Court are Plaintiff's objections to Magistrate Judge Peebles' recommendations. See Dkt. No. 42.
The Court reviews de novo the portions of a magistrate judge's report-recommendation to which the parties object, see Shabazz v. Lee, No. 9:03-CV-1520, 2007 WL 119429, *1 (N.D.N.Y. Jan. 10, 2007) (citation omitted), and for clear error those recommendations to which the parties do not object, see Head-Bey v. Smith, No. 9:04-CV-191, 2007 WL 274793, *1 (N.D.N.Y. Jan. 26, 2007).
B. Plaintiff's Eighth Amendment Deliberate Indifference Claim
To establish an Eighth Amendment deliberate indifference claim, a plaintiff must prove that, while he was incarcerated, he suffered unnecessary and wanton infliction of pain due to the defendants' deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). In order for a plaintiff to prove that his medical condition is sufficiently serious to rise to the level of a constitutional claim, he must show either that his medical need or the defendants' failure to treat that need presents "'a condition of urgency' that may result in 'degeneration' or 'extreme pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quotation omitted); see also Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000).
"The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). "First, the alleged deprivation must be, in objective terms, 'sufficiently serious.' . . . Second, the charged official must act with a sufficiently culpable state of mind. . . . Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. . . ." Id. (internal citations omitted). In other words, "[t]o establish deliberate indifference, the plaintiff must prove that 'the prison official knew of and disregarded the plaintiff's serious medical needs.' . . . Deliberate indifference will exist when an official 'knows the inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. . . .'" Harrison, 219 F.3d at 137 (internal quotations and citation omitted).
Magistrate Judge Peebles found that Plaintiff's knee condition, lower back pain and asthma did not "rise to a level of constitutional significance . . . ." See Report and Recommendation, dated March 8, 2006, at 23. Specifically, he noted that "while an asthma attack which is left untreated can constitute a serious medical need, the mere fact of having been diagnosed with asthma does not suffice to establish such a need." See id. (citations omitted). Since Plaintiff's medical records reflected that his "asthma was well controlled, with the aid of medication, and he suffered no asthma attacks during that period," Magistrate Judge Peebles concluded that the record would not support a finding that Plaintiff's asthma constituted a serious medical need. See id. at 23-24.
Likewise, Magistrate Judge Peebles found that Plaintiff's complaints of back and knee pain did not show the requisite urgency or degeneration necessary to implicate an Eighth Amendment right. See id. at 24. He noted that,"[d]espite the frequency with which he was seen by prison medical officials . . ., [P]laintiff did not voice a significant number of concerns regarding pain, nor did he request pain medication beyond simple Ibuprofen and similar over-the-counter medications." See id. Moreover, Magistrate Judge Peebles stated that, "over the entire period [P]laintiff complained to medical staff about lower back pain only three times . . . " See id. (citation omitted).
Furthermore, Magistrate Judge Peebles found that, "[e]ven if [P]laintiff were able to establish the existence of one or more serious medical needs," see id. at 25, he still would not prevail on his claim because he failed to show that Defendants were deliberately indifferent to his medical needs. Specifically, he found that Defendant Girdich was entitled to summary judgment because Plaintiff's complaint of deliberate indifference against him was based ...