The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER INTRODUCTION
Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action under 42 U.S.C. § 1983 alleging that defendants violated his First and Eighth Amendment rights. Defendants moved to dismiss the amended complaint under Fed. R. Civ. P. 12(b)(6). Upon referral pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3(b), United States Magistrate Judge Andrew T. Baxter issued a Report and Recommendation recommending that defendants' dismissal motion be granted in part and denied in part. Magistrate Judge Baxter recommends granting defendants' motion to dismiss the following: (1) the First Amendment retaliation claim; (2) the First Amendment free exercise of religion claim; (3) the First Amendment claim that Clinton Correctional Facility's grievance program is incompetent; (4) the First Amendment mail tampering claim;*fn1 (5) the Eighth Amendment denial of mental health treatment at Clinton Correctional Facility; (6) the Eighth Amendment excessive force claim with respect to the events of July 10, 2008 and July 11, 2008; (7) the Eighth Amendment failure to protect claim; (8) the Eighth Amendment conditions of confinement claim with respect to plaintiff's allegations of a cold cell, lack of toiletries, towels, sheets, blanket, and a sweatshirt; and (9) the destruction of property claim. Magistrate Judge Baxter recommends denying defendants' motion to dismiss: (1) the Eighth Amendment denial of medical care with respect to defendants Fitzgerald and Larnan; (2) the Eighth Amendment excessive force claim regarding events on July 11, 2008; and (3) the Eighth Amendment conditions of confinement claim with respect to the alleged denial of food during January 2009. Plaintiff objects to the portions of the Report and Recommendation which recommend dismissal of his claims.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Where only general objections are filed, the Court reviews for clear error. See Brown v. Peters, 1997 WL 599355,*2-* 3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir. 1999). Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993).
There is no objection to the recitation of facts in the Report and Recommendation, which states as follows:
Plaintiff was at Upstate Correctional Facility ("Upstate") in 2007 and then transferred to Elmira Correctional Facility ("Elmira") in 2008, where he participated in a group therapy program. (Am. Compl. ¶¶ 13--15). After about four weeks, plaintiff was transferred from Elmira to Great Meadow Correctional Facility ("Great Meadow") to participate in a different mental health program. (Am. Compl. ¶¶ 15--16). Plaintiff alleges that upon his arrival at Great Meadow, he was "[i]mmediately harrassed [sic] and retaliated against because of [his] facility history." (Am. Compl. ¶ 16, 39). Plaintiff claims that he has been "deprived [of his] mental health treatment because of constant movement to different facility programs." (Am. Compl. ¶ 18).
While plaintiff was at Great Meadow, defendant Howard allegedly "got [plaintiff] relocated" to the "last cell and with feces in it" and told other correctional officers that when plaintiff was at Upstate, plaintiff had attacked defendant Howard's friend. (Am. Compl. ¶¶ 16, 36, 39, 52). Plaintiff had interacted with defendant Howard at Upstate and Downstate Correctional Facilities. (Am. Compl. ¶ 52). Plaintiff indicates that while he was a part of the Great Meadow B.H.U. program, plaintiff was "given a new criminal charge," but gives no explanation as to the surrounding facts or its relevance. (Am. Compl. ¶ 16).
Plaintiff complained to defendant Hicks at Great Meadow that he was "never suppose[d] to be transfer[r]ed out of Elmira," but "she still did nothing except sent me to Clinton Correctional Facility [group therapy] program" later in 2008. (Am. Compl. ¶ 17). At Clinton, plaintiff "experienced constant assaults [and] wasn't fed for two daily meals[, and w]hile at O.B.S. [plaintiff] was extremely cold and in strong pain." (Am. Compl. ¶ 28). Plaintiff also complains of roaches and mice. (Am. Compl. ¶ 29). Overall, plaintiff asserts that the "threat at Clinton was very threatening it forced [plaintiff] to not want to file any grievances." (Am. Compl. ¶ 29).
Plaintiff alleges that on two occasions he asked for an Imam, and defendant Allen instead sent for a deacon, and plaintiff was also "denied my religious practive [sic] to eat ramadan meals" for the entire month when ramadan is celebrated. (Am. Compl. ¶ 29, 46). Plaintiff "had to wait patiently and stop writting [sic] grievance[s] until the harrassment, [sic] and constant banging doors, gates and loud noises finally stop." (Am. Compl. ¶ 37).
On July 10, 2008, plaintiff "committed a[n] aggr[a]vated assault charge," and was placed in "full restraints and assaulted in the back of [his] cell" at Clinton by unnamed defendants. (Am. Compl. ¶¶ 20, 40). After the incident, defendant nurse Fitzgerald evaluated plaintiff, but from behind the plexiglass shield in front of plaintiff's cell, which plaintiff alleges was "unclean" and "gives unclear vision." (Am. Compl. ¶26). Plaintiff allegedly received no treatment for his bruises, swelling, or the "excruciating pain [he] was constantly feeling." (Am. Compl. ¶¶ 26--27).
The next day, plaintiff alleges that he was sleeping, and "correction officials entered my cell and placed a green state towel around my head and begin [sic] punching me in my face, my body and they kneed me and kicked me... [for] about three minutes. I couldn't see who did it. They told me if I snitch[ed] they [were] going to murder me." (Am. Compl. ¶ 21, 40). An unnamed sergeant and two corrections officers returned a few minutes later and began "punching [plaintiff], kicking [plaintiff], and kneeing [plaintiff]." (Am. Compl. ¶ 22, 40). A third officer stood at the door, holding it open. Id. After assaulting plaintiff for another three minutes, they "ran out the cell door." Id. Plaintiff alleges that the unidentified corrections officer who held the door also refused to feed plaintiff breakfast and lunch. Id.
While plaintiff was still housed in the same cell, he alleges that defendants Uhler, Allen, Marcil, and other corrections officers wanted plaintiff to come out of his cell, but he "disagreed with coming out," because "they did not come with [a] camera." (Am. Compl. ¶ 24, 41). A "distraction unit" was called, bringing a camera, so plaintiff "agreed to come out," but defendants Uhler, Allen, Marcil and others still used mace "repeatedly." Id. Plaintiff was placed in full restraints, but the officers failed to lock the cuffs, which caused plaintiff "excruciating pain," and a corrections officer held plaintiff's "arm in an unproffessional [sic] way only intended to cause [plaintiff] extra excruciating pain and he used a[n] untrained hold to apply pressure on my arms and wrist." (Am. Compl. ¶ 24, 42). Plaintiff received an eye examination by defendant nurse Larnan in the SHU "holding pen," but plaintiff received nothing for his bruises, "excruciating pain [he] was constantly feeling," or "swollenness [sic] from my head, face, chest, stomach, left leg, right leg and testicles." (Am. Compl. ¶ 27, 43; Pl.'s Resp. to Defs.' Mem. of Law in Supp. of Mot. to Dismiss the Am. Compl. as to Defs. Farnan and Fitzgerald ¶ 1).
On January 5, 2009, plaintiff states that he was "forced to retaliate against a Sgt. and two correction officers for constant harrassment [sic] and constant retaliation... and because the administration at Clinton refuse[s] to proffessionally [sic] protect me." (Am. Compl. ¶ 28). The officers then submitted allegedly false reports stating that plaintiff's personal property inside his cell was also contaminated and needed to be destroyed. (Am. Compl. ¶ 51). Plaintiff's property was placed in a bag and destroyed due to a report indicating that it was "contaminated." (Am. Compl. ¶ 35). Plaintiff claims that only "one pair of state pants and short sleeve shirt, one pair of state sox, [sic] one pair of state undershirt and undershorts was contaminated and that was outside my cell at the back of the cell outside cell entrance." (Am. Compl. ¶51).
The state property that was destroyed was valued at $152.64, and plaintiff's property, "five Vibe magazines, 1 bible, 7 personal letters, [and] 1 pair of slippers" were valued at $36.25. (Am. Compl. ¶ 35). The loss of his slippers prevented plaintiff from showering. (Am. Compl. ¶ 35). After plaintiff attempted to assault the officers on January 5, 2009, he claims he was placed "back in S.H.U. 2 cell" that only had a mattress with "huge holes and it was torn in many places." (Am. Compl. ¶ 30). Plaintiff alleges he was deprived of writing utensils, paper, grievances, envelopes, sheets, blankets, washcloths, soap, a pillow or pillowcase, towels, toilet paper, a ...