The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Kemorley Joseph Scott ("Scott"), presently an inmate in the custody of the United States Immigration and Customs Enforcement agency ("ICE"), brings this action pursuant to 42 U.S.C. § 1983 alleging that Dr. Richard Laux violated his Eighth Amendment rights while Scott was in the custody of the New York State Department of Correctional Services (DOCS). Compl. (Docket No. 1); see also Docket Nos. 26, 27. Presently pending is defendant's motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 14. Scott has failed to respond to the motion.*fn2 For the following reasons, it is recommended that defendant's motion to dismiss be granted.
The facts are related herein in the light most favorable to Scott as the nonmoving party. See subsection II(A) infra.
All of the relevant events giving rise to the present claim occurred during Scott's incarceration at Auburn Correctional Facility ("Auburn"). Compl. ¶ 2(A). Beginning at the end of November, 2003, Scott complained to medical staff about "ring worm and penal glance [sic]," which were causing him discomfort and pain. Id. ¶ 2(D). On December 23, 2003, Scott began complaining to the medical staff at Fishkill Correctional Facility ("Fishkill") concerning "ring worm on his testicles as well as genital warts." Docket No. 1 at 8,*fn3 16. Upon physical examination, no ring worm or warts were noted. Id. On January 9, 2004, Scott complained of a skin disease on his neck and groin, but offered no symptoms of any disease and upon examination was noted to have an essentially normal condition. Id. at 17.*fn4
On January 22, 2004, Scott was referred to a dermatologist for his skin condition and to perform a biopsy. Id. 12. Scott was seen by a dermatologist on February 19, 2004 for the "multiple small esphitic raised eruptions around the base of [his] gland penis -- which are probable condyloma.*fn5 " Id. 14. On March 18, 2004, Scott underwent a biopsy at the dermatologist's recommendation for his asymptomatic penile papilloma.*fn6 Id. 9. The notes reflect that these eruptions were "unlikely codyloma" and instead, fibroephithelial polyps.*fn7
Scott's AHR reflects his transfer to Auburn from Fishkill on or about July 13, 2005. Id.
21. On July 13, Scott requested to see a physician and asked for pills to treat his ring worm, claiming that he had received such medication in the past although he could not remember the medication. Id. Two days later, Scott was visited at his cell but was not ready for sick call and did not see a physician. Id. 22. Later that day, Scott complained of ring worm of his body and feet, which he had suffered for the last ten years. Id. Scott was diagnosed with a systemic fungal infection and given prescription medication. Id.
On July 19, 2005, Scott requested to speak with a physician about the possibility of burning off his genital warts as they had plagued him for three years. Id. 23. It was noted that there was no drainage from the growths and that Scott was scheduled to speak to defendant Laux on July 27, 2005. Id. Two days later, Scott again complained of his genital warts and requested to see a physician. Id. A visual inspection of the affected area was deferred. Id. Three days later, Scott again asked when he would see a physician, stating that his warts were burning. Id. It was noted that he would see D.N. Kooi on August 1, 2005. Id.
On August 1, Scott was seen by Kooi, who noted a small wart and prescribed a cream application. Id. 24. This prescription and another for his skin irritation were renewed on August 12, 2005. Id. 25. Scott continued to make complaints about his genital warts on August 18, 2005. Id. A wart was still noted on his penis and he was instructed to continue with the previously prescribed treatment.*fn8 Id.
On September 12, 2005, Scott stated that the ring worm on his scalp was not improving with the current prescription. Id. 26. On September 22, 2005, Scott saw Kooi again concerning his ring worm, was noted to have a few areas of what appeared to be a fungal infection, and was prescribed different medication. Id.
On or about October 2005, Scott was transferred from Auburn to Sing Sing Correctional Facility ("Sing Sing"). Id. 29. On October 17, 2005, Scott complained of the persistent ring worm on his scalp and body. Id. On October 11, 2005, the AHR noted that despite Scott's complaints of ring worm on his scalp, he was in no acute distress. Id. 34 On October 18 and 19, Scott was evaluated and no rash was found on either occasion. Id. Scott was evaluated on October 24, 2005 and found to have a small patch of skin irritation on his neck and no infection observed on his penis, which in fact had a normal appearance. Id. 29. On August 10 and 11, 2006, Scott again complained of testicular pain. Id. 40. On October 26 and November 2, 2006, Scott complained of a rash on his scalp, although he was in no distress. Id. 45. Scott was prescribed a special shampoo for his scalp. Id.
On or about November 12, 2006, Scott was transferred back to Auburn. Id. 44. On November 19, 2006, Scott complained that he needed special shampoo for the ring worm on his scalp, but medical staff did not find any ring lesions upon inspection. Id. Ten days later, Scott was ...