The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court in this pro se prisoner civil rights action filed by Carlos Peterson ("Plaintiff") are the following: (1) a motion to dismiss Plaintiff's Second Amended Complaint filed by Clinton Correctional Facility Officer J. Cecot ("Defendant") (Dkt. No. 36);*fn1
(2) United States Magistrate Judge David E. Peebles's Report-Recommendation recommending that Defendants' motion to dismiss Plaintiff's Second Amended Complaint be granted, with leave to Plaintiff to file a Third Amended Complaint within thirty (30) days of entry of an Order adopting the recommendation (Dkt. No. 41); and (3) Plaintiff's Third Amended Complaint (Dkt. No. 43).For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Plaintiff's Second Amended Complaint isdismissed in its entirety for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); Plaintiff's Third Amended Complaint is struck from the docket; and Plaintiff is afforded leave to file a Third Amended Complaint within thirty (30) days of the date of this Decision and Order.
A. Plaintiff's Pleadings and Relevant Procedural History
Plaintiff filed his Complaint on September 16, 2009. (Dkt. No. 1.) On November 12, 2009, this Court issued a Decision and Order that did the following: (1) denied Plaintiff's motion to proceed in forma pauperis without prejudice; (2) denied Plaintiff's motion for appointment of counsel without prejudice; (3) sua sponte dismissed Plaintiff's claims for money damages against Clinton Correctional Facility pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and (4) ordered that the remainder of Plaintiff's Complaint be sua sponte dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B) and 8 U.S.C. § 1915A(b) unless, within thirty (30) days of the date of the Decision and Order, Plaintiff (a) filed an Amended Complaint that cured the pleading defects identified in the Decision and Order, and either paid the Court's filing fee of three hundred fifty dollars ($350) or submitted a completed in forma pauperis application and a signed authorization form. (Dkt. No. 6.)
On November 20, 2009, Plaintiff filed an Amended Complaint. (Dkt. No. 7.) On March 15, 2010, this Court issued a Decision and Order striking the Amended Complaint from the Court's docket, and denying, without prejudice, Plaintiff's second motion to proceed in forma pauperis. In doing so, the Court ordered that, in the event that Plaintiff wished to proceed with his action, he file, within thirty (30) days, a signed Second Amended Complaint that complied with the pleading requirements identified in the Decision and Order and the November Order. The Court further ordered that, in the event Plaintiff wished to proceed with his action in forma pauperis, he either pay the $350.00 filing fee in full, or provide the Clerk with a signed authorization form directing payment of the full filing fee to the Northern District of New York, within thirty days.
On March 22, 2010, Plaintiff filed a Second Amended Complaint. (Dkt. No. 15.) Construed with the utmost of liberality, Plaintiff's Second Amended Complaint alleges that, while he was incarcerated at Clinton Correctional Facility in Dannemora, New York ("Clinton C.F."), Defendant Cecot violated his constitutional rights by confiscating his asthma inhaler, in deliberate indifference to his serious medical needs. (See generally, Dkt. No. 15 [Plf.'s Sec. Am. Compl.].)
For a more detailed recitation of the factual allegations in Plaintiff's Second Amended Complaint, the Court refers the reader to the Second Amended Complaint in its entirety, and to Magistrate Judge Peebles' Report-Recommendation. (Dkt. Nos. 15, 41.)
B. Defendant Cecot's Motion to Dismiss
On September 29, 2010, Defendant Cecot filed a motion. (Dkt. No. 36.) In his motion, Defendant Cecot argues that Plaintiff's Eighth Amendment medical indifference claim against him should be dismissed because (1) Plaintiff has failed to allege facts plausibly suggesting that Defendant Cecot was deliberately indifferent to Plaintiff's serious medical needs, and (2) Defendant Cecot is entitled to qualified immunity. (Id.)
C. Magistrate Judge Peebles's Report-Recommendation
On March 8, 2011, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendant's motion to dismiss be granted and Plaintiff's Eighth Amendment medical indifference claim be dismissed, but that Plaintiff be afforded leave to file a Third Amended Complaint. (Dkt. No. 41.) In support of his recommendation, Magistrate Judge Peebles found that Plaintiff's "brief" Complaint (1) "disclose[s] scant details regarding his asthma condition and its resulting symptoms," (2) alleges only in conclusory fashion that the confiscation of his inhaler subjects him to a risk of future harm (i.e., that he has a serious medical need), and (3) does not ...