The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court are Magistrate Judge Homer's September 13, 2006 Report-Recommendation and Order and Defendants' objections thereto.
In his complaint, Plaintiff claims that, on December 22, 1998, at approximately 9:30 p.m., some twenty inmates attacked him and another inmate. Plaintiff further alleges that Defendants stood by and watched while these inmates repeatedly kicked him in his lower back and face and cut him with sharp instruments below his right eye, lip and tongue.
On September 13, 2006, Defendants moved for summary judgment on the ground that Plaintiff failed to prove the elements of a failure-to-protect claim. In the alternative, Defendants argued that they were entitled to qualified immunity.
Magistrate Judge Homer issued a Report-Recommendation and Order in which he recommended that the Court deny Defendants' motion for summary judgment. Specifically, Magistrate Judge Homer found that, although Plaintiff failed to raise a material issue of fact as to whether Defendants knew of or disregarded a serious risk to his safety prior to the attack, he did raise a material issue of fact about what Defendants witnessed and whether they intentionally or recklessly failed to intervene in the attack. Magistrate Judge Homer also concluded that Defendants were not entitled to qualified immunity.
The district court reviews de novo those portions of a magistrate judge's report-recommendation and order to which a party objects, see Singleton v. Caron, No. 9:03-CV-00455, 2006 WL 2023000, *1 (N.D.N.Y. July 18, 2006) (citations omitted), and for clear error those portions to which a party does not object, see Stokes v. Artus, No. 05 Civ.1975, 2006 WL 1676437, *2 (S.D.N.Y. June 14, 2006) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). The district court reviewing a magistrate judge's report-recommendation and order "'may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Everson v. New York City Transit Auth., No. 1:02-cv-1121, 2007 WL 539159, *3 (E.D.N.Y. Feb. 16, 2007) (citing 28 U.S.C. § 636(b)(1)).
To grant a motion for summary judgment, the court must find 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. See Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court "resolve[s] all ambiguities and draw[s] all reasonable inferences against the moving party." Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997) (citation omitted). However, "[w]hen no rational jury could find in favor of the nonmoving party . . . a grant of summary judgment is proper." Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citation omitted).
B. Plaintiff's Failure-to-Protect Claim
To establish a failure-to-protect claim under § 1983, a plaintiff "must show that he [was] incarcerated under conditions posing a substantial risk of serious harm" and that the defendant was deliberately indifferent to the plaintiff's health and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation, quotation and footnote omitted). When determining whether conditions pose a substantial risk of serious harm, the courts have adopted an objective test that requires a plaintiff to show that he was subject to a risk of harm. See Helling v. McKinney, 509 U.S. 25, 35 (1993). In addition, a finding of deliberate indifference is a subjective test that requires the plaintiff to demonstrate that the defendant knew of and disregarded an excessive risk to the plaintiff's health and safety. See Farmer, 511 U.S. at 837. A plaintiff can show deliberate indifference by presenting evidence "that a substantial risk of inmate attacks was 'longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official . . . had been exposed to information concerning the risk and thus 'must have known' about it . . . .'" Farmer, 511 U.S. at 842 (quotation omitted).
Plaintiff bases his failure-to-protect claim on two theories. First, Plaintiff alleges that, prior to the attack, Defendants were aware that Plaintiff was in danger and that, despite this knowledge, they did nothing to protect him from attack. Alternatively, Plaintiff contends that, although Defendants saw his fellow inmates attack him, ...