The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff filed his original complaint in October 2005, and filed an amended complaint in January 2006. His claims arise from the conditions of his confinement during his incarceration at the Oneida County Correctional Facility from May 2004 to February 2005. In his amended complaint, Plaintiff asserts ten counts against Defendants: (1) deliberate indifference to his serious medical needs (herpes outbreak) against Defendants Stressel, Stock, Paravati, Middaugh, and Oneida County; (2) deliberate indifference to his serious medical needs (psychiatric care) against Defendants Kordylewska, Idzi, Middaugh, Paravati, Heim and Oneida County; (3) failure to protect against Defendants Carey, Middaugh, Paravati, Heim, Kordylewska, and Idzi; (4) excessive force against Defendants Breen and Heaney; (5) unreasonable strip searches and wrongful classification to deprivation status against Defendants Breen, Heaney, Carey, Liddy, Middaugh, Paravati, and Oneida County; (6) inadequate access to the courts against Defendants Middaugh and Paravati; (7) failure to investigate grievances against Defendants Heim, Paravati, and Middaugh; (8) retaliation against Defendants Breen, Carey, Liddy, Heim, Middaugh, and Paravati; (9) conspiracy against Defendants Carey, Idzi, Kordylewska, Paravati, Liddy, and Middaugh; and (10) municipal liability against Defendant Oneida County. See, generally, Amended Complaint.
Plaintiff moved for partial summary judgment with respect to his first, second, fifth, sixth and seventh counts. In response, Defendants filed a cross-motion for summary judgment with respect to all counts. After reviewing the parties' submissions and the applicable law, Magistrate Judge DiBianco issued an Order and Report-Recommendation in which he recommended that the Court (1) deny Plaintiff's motion for partial summary judgment and (2) grant in part and deny in part Defendants' cross-motion for summary judgment. Specifically, with respect to Defendants' cross-motion, he recommended that the Court (1) dismiss the first, sixth, seventh and ninth counts against all Defendants, (2) dismiss the third count to the extent that it alleges a failure-to-protect claim; and (3) dismiss the complaint in its entirety against Defendants Paravati, Heim, Stock, Idzi and Stressel. See Order and Report Recommendation dated March 27, 2008, at 41-42.
Currently before the Court are Plaintiff's and Defendants' objections to Magistrate Judge DiBianco's recommendations.
In reviewing a magistrate judge's report-recommendation, the district court may decide to accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court conducts a de novo review of the portions of the magistrate judge's recommendations to which a party objects. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). De novo review is not required, however, if a party fails to file specific objections. See Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (noting that where "no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record"). Nor is a court required to conduct de novo review where the parties' objections to the magistrate judge's recommendation repeat the arguments that the parties made in the original pleadings. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citations omitted). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds, 262 F. Supp. 2d at 169 (quotation omitted).
B. Plaintiff's First Count For Deliberate Indifference To His Serious Medical Needs Related to a Herpes Outbreak against Defendants Stressel, Stock, Paravati, Middaugh and Oneida County
Plaintiff objects to Magistrate Judge DiBianco's recommendation that the Court dismiss his first count. See Plaintiff's Objections at 1. He asserts that the nurses failed to check the sick call box on a daily basis. See id. To support this claim, he notes that he did not receive treatment until thirteen days after his initial request. See id. at 2.
Plaintiff also contends that there are inconsistencies in the logbooks and that Defendants fabricated those logbooks. See id. at 1-2. As evidence of this fabrication, Plaintiff asserts that the logbooks did not appear until after Defendants submitted affidavits and that Defendant Heim and the Commissioner of Corrections never mentioned the logbooks in their investigations. See id. at 2.
Finally, Plaintiff contends that Defendant Stock, as the Nurse Coordinator, and Defendant Middaugh, as Sheriff, have a duty to ensure that inmates receive medical treatment and that, therefore, they share liability. See id.
The Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment, protects the rights of pretrial detainees. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). As the Second Circuit has noted, although the Supreme Court has not defined the standard of duty for a prison official under the Due Process Clause, it is clear that the rights of a pretrial detainee are "at least as great as those of a convicted prisoner." Id. (citing City of Revere v. Massachusetts General Hospital, 463 U.S. at 244, 103 S.Ct. at 293) (other citation omitted).
Deliberate indifference to serious medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Since at a minimum pretrial detainees receive the protections of a convicted prisoner, deliberate indifference violates their rights as well. Under the Eighth Amendment, deliberate indifference occurs where a prison official recklessly disregards the risk that a detainee's serious medical condition presents. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (citations omitted).
To establish a constitutional claim arising out of inadequate medical care, under either the Due Process Clause or the Eighth Amendment, a prisoner must satisfy a two-prong test. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). The first prong of this test requires that the prisoner suffer from a serious medical condition. See id. The prisoner's medical need must be of a "sufficiently serious" nature. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). A serious need is one that is urgent or "life threatening" and may result in "degeneration or extreme pain." Id.
The second prong of this test includes both a subjective and objective component. See Chance, 143 F.3d at 702. A prison official must be aware of the facts from which he could draw an inference that a substantial risk of harm exists, and the official must draw that inference. See id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed. 2d 811 (1994)). This standard does not require intent, but the prisoner must show more than negligence. See Farmer, 511 U.S. at 835. A prisoner's disagreement with an otherwise proper course of treatment does not rise to the level of a constitutional violation. See Chance, 143 F.3d at 703.
Plaintiff has not come forward with any evidence to suggest that Defendants were deliberately indifferent to his serious medical needs. As Magistrate Judge DiBianco found, Plaintiff's allegations about submitting sick call slips are inconsistent. Plaintiff claims he submitted sick call slips on June 18, 2004, June 23, 2004, and then continued to "put sick calls in daily." See Order and Report-Recommendation at 11-13. However, the sick call log book shows that Plaintiff submitted four slips simultaneously on June 28, 2004, and three slips on June 30, 2004. See id. at 13. Moreover, during the period when Plaintiff alleges that he submitted daily sick call slips, his "location history" shows that, on June 24, 2004, he was examined and cleared medically. See id.
Furthermore, on June 30, 2004, Defendant Stressel examined Plaintiff and advised him to continue using hydrocortisone cream, which he had already been using. See id. at 14. The next day, July 1, 2004, the doctor examined Plaintiff and prescribed Valtrex. See id. Even after receiving this prescription, Plaintiff continued to file sick call slips on July 1, 2004, and three days later on July 4, 2004. See id.
Although Plaintiff contends, in his objections, that prison officials failed to check the sick call box and fabricate the log book, he supplies no evidence to support these conclusory allegations. Therefore, because Plaintiff has failed to show that any of the Defendants knowingly denied him treatment for a serious medical need related to the herpes outbreak, the Court adopts Magistrate Judge DiBianco's recommendation and denies Plaintiff's motion for summary judgment with respect to the first count and grants Defendants' cross-motion for summary judgment with regard to this count. Furthermore, because this is the only count that implicates Defendants Stressel and Stock, the Court adopts Magistrate Judge DiBianco's recommendation and dismisses the amended complaint in its entirety against these two Defendants.
C. Plaintiff's Second Count For Deliberate Indifference To His Serious Psychiatric Need Against Defendants Kordylewska, Idzi, Middaugh, Parvati, Heim And Oneida County
Plaintiff alleges that Defendants Idzi and Kordylewska acted with deliberate indifference when they refused to give him medication in August 2004. See Order and Report-Recommendation at 16. Defendant Kordylewska, who is a physician, began treating Plaintiff in August 2004, although Defendant Idzi, who is a nurse, had treated him in May 2004. See id. at 17-18. Plaintiff filed a complaint with the New York State Commission of Corrections addressing mental health services, and the Commission found that Defendant Kordylewska had provided inappropriate care. See id. at 16-17.
In response to the Commission's findings, Defendants provide no solid basis for discontinuing Plaintiff's medication. See id. at 17. Defendant Heim cited Plaintiff's possession of another inmate's medication as the reason for withholding his medication. See id. However, Defendant Kordylewska's response does not address Plaintiff's medical history or her direct reason for stopping the medication. See id.
In addition, Defendants' responses fail to reconcile their decision to withhold medication with their knowledge of Plaintiff's mental health history. In May 2004, the Oneida County Correctional Facility treated Plaintiff for mental health issues. See id. at 18. Moreover, Plaintiff alleges that Central New York Services, the employer of Defendants Kordylewska and Idzi, has several years of Plaintiff's medical records. See Plaintiff's Objections at 3.
Plaintiff's allegations of deliberate indifference raise genuine issues of fact regarding the reasons that Defendant Kordylewska withheld medication. Therefore, the Court adopts Magistrate Judge DiBianco's recommendation and denies Plaintiff's and Defendants' motions for summary judgment with respect to the second count against Defendant Kordylewska.
With respect to Defendant Idzi, Plaintiff argues that she prescribed medication for him but later revoked the prescription after he was found in possession of a cigarette and two Aspirin. See Plaintiff's Objections at 3. He also contends that Defendant Idzi and Defendant Kordylewska work as a team. See id. As Magistrate Judge DiBianco pointed out, however, Defendant Idzi is a nurse; and, thus, she lacked the authority to make medical decisions directly related to Plaintiff. See Order and Report-Recommendation at 18-19. Therefore, the Court adopts Magistrate Judge DiBianco's recommendation and denies Plaintiff's ...