The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Pro se plaintiff Tommy Crosby, an inmate at Wende Correctional Facility, brings this action under 42 U.S.C. § 1983, alleging that his medical providers*fn1 violated his Eighth and Fourteenth Amendment rights by failing to inform him for nearly ten years that he suffers from hepatitis C and by withholding appropriate treatment for his condition. (See Compl., Dkt. No. 1.) In addition, Crosby alleges that defendants violated his rights under the Americans with Disabilities Act (ADA),*fn2 the Rehabilitation Act of 1973,*fn3 and state tort law. (See id.) Defendants O'Connell, Magee, Edwards, Nesmith, Paolano, Smith, Genovese, and Wright moved for summary judgment. (Dkt. No. 60.) On February 22, 2010, Magistrate Judge David E. Peebles issued a Report and Recommendation Order (R&R) recommending that the court: (1) deny defendants' motion with respect to Crosby's Eighth Amendment deliberate medical indifference claim; (2) deny defendants' motion based on the statute of limitations; (3) dismiss Crosby's state law claims; and (4) dismiss Crosby's claims against defendants Takos and Forte in accordance with Rule 4(m). (Dkt. No. 70.) Pending are the parties' objections to the R&R. (Dkt. No. 75, 76.) For the reasons that follow, the R&R is adopted in its entirety.
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In cases in which no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
A. Eighth Amendment Claim
Judge Peebles found that Crosby's Eighth Amendment claim satisfied both the objective and subjective requirements of a deliberate medical indifference claim. (See R&R at 23, Dkt. No. 70.)
The standard for an Eighth Amendment claim based on deliberate indifference includes both an objective and subjective prong. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). To satisfy the objective prong, an alleged deprivation must be "sufficiently serious." See id. This means a condition of urgency that may lead to death, degeneration, or extreme pain. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Factors to consider include: (1) whether the condition significantly impairs a plaintiff's daily activities; (2) whether the condition has caused a plaintiff severe or chronic pain; (3) worsening of the condition due to lack of treatment; and (4) whether a reasonable doctor or patient would find the injury important and worthy of comment or treatment. See Chance v. Armstrong, 143 F.3d 698, 701-02 (2d Cir. 1998).
The subjective prong requires more than negligence by a defendant. See Hathaway, 37 F.3d at 66.Rather, a defendant must "know of and disregard an excessive risk to inmate health or safety." Id. (internal quotation marks and citation omitted). For example, a prison official's conscious delay or failure to treat an inmate's serious medical condition "as punishment or for other invalid reasons" would satisfy the subjective prong. See Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (internal quotation marks, emphasis, and citations omitted).
Here, as to the objective prong, Crosby outlined the effects of failure to treat hepatitis C, including fibrosis, cirrhosis, and liver cancer. (See Compl. ¶¶ 35-43, Dkt. No. 1.) Crosby also alleged that throughout the nine years that he was undiagnosed with hepatitis C, he suffered from various symptoms associated with the virus, including decreased appetite, fatigue, abdominal pain, and flu-like symptoms. (See id. at ¶¶ 53, 60, 67, 71, 76, 79.) In reliance on defendant Dr. Maryann Genovese's declaration, defendants assert that Crosby suffered no life-threatening symptoms of hepatitis C and had not suffered severe pain, deterioration of health, or permanent disability. (See Defs. Objections at 1-2, Dkt. No. 75.) Nontheless, the seriousness and worsening of Crosby's medical condition remain triable issues of fact.
Regarding the subjective prong, Judge Peebles found that summary judgment was not warranted with respect to defendants' deliberate indifference to Crosby's condition. (See R&R at 22-23, Dkt. No. 70.) Specifically, Judge Peebles noted that defendants fail to counter Crosby's assertions that "[where treatment for hepatitis C] is delayed, it becomes less effective because chronic [h]epatitis C causes increased fibrosis, or scarring, of liver tissue and eventually cirrhosis of the liver." (Id. at 23 (internal quotation marks and citation omitted).) Moreover, defendants do not dispute that they were aware of Crosby's condition and failed to provide treatment for that specific condition. Defendants also fail to address Crosby's contention that his Hepatitis C remained untreated due to a DOCS medical policy that encouraged withholding treatment to inmates with Hepatitis C to avoid costs. (See Compl. ¶¶ 104-05, Dkt. No. 1.) Accordingly, questions remain as to the existence of an alleged policy-driven motive for withholding treatment and whether defendants consciously disregarded Crosby's health.
Therefore, the court agrees with Judge Peebles that factual questions remain as to Crosby's Eighth Amendment claim, and therefore denies summary ...