The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants Raimo, Smith, and Vedder used excessive force in violation of his constitutional rights. See Dkt. No. 1. Plaintiff also alleges that Defendant Vedder failed to stop Defendants Raimo and Smith from using excessive force. Plaintiff further claims that Defendant Oliver was deliberately indifferent to his serious medical needs.
On September 30, 2010, Defendant Oliver filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 31. Plaintiff opposed the motion and filed a cross-motion for summary judgment. See Dkt. Nos. 34, 43.
In a Report-Recommendation and Order dated July 22, 2011, Magistrate Judge Lowe recommended that the Court grant Defendant Oliver's motion for summary judgment with respect to Plaintiff's claim that Defendant Oliver acted with deliberate indifference on the day following the incident (August 23, 2009), but deny the motion in all other respects. Magistrate Judge Lowe further recommended that the Court deny Plaintiff's motion for summary judgment. Currently before the Court are Plaintiff's objections to Magistrate Judge Lowe's July 22, 2011 Report-Recommendation and Order.
In his complaint, Plaintiff alleges that, on August 22, 2009 during an altercation with another inmate, Defendants Smith and Raimo "pulled" him from the cell and "slammed [him] to the tier," at which point he was punched and handcuffed. See Dkt. No. 1 at ¶¶ 2-3. Once handcuffed, Defendants Smith and Raimo allegedly kicked Plaintiff while he was on the ground, and "hurled racial slurs" at him. See id. at ¶ 3. After several minutes, Defendants Smith and Raimo pulled Plaintiff to his feet and slammed him into the gates at the front of the cell. See id. at ¶ 4. Defendant Smith punched Plaintiff in his shoulder, arm, and back. See id. Defendant Raimo then kneed Plaintiff, punched his right leg, and pushed his head "into the bars." See id. at ¶ 5. Defendant Vedder, who was located behind Plaintiff at the time, failed to stop the attack and allegedly hit Plaintiff in the head and back. See id. at ¶ 6.
After "several minutes," Plaintiff was escorted to the infirmary. See id. at ¶ 7. While at the infirmary, Defendant Oliver interviewed Plaintiff and "failed to adequately service [the] Plaintiff." See id. at ¶ 8. Plaintiff alleges that he was not provided with any medication for the swelling and pain. See id. Plaintiff requested an "emergency sick call" the next morning, but Defendant Oliver refused his request. See id. at ¶ 9.
Plaintiff claims that Defendant Oliver was deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights, because she failed to provide him with adequate medical attention on both the day of the incident and the day after. Plaintiff further alleges that, as a result of Defendants Raimo, Smith, and Vedder's actions, he experienced "severe pain . . . and swelling" of the leg, knee, and shoulder. Plaintiff also claims that Defendant Oliver's failure to assist with these injuries led to prolonged pain and swelling. See id.
Defendant Oliver moved for summary judgment, arguing that Plaintiff cannot prevail on his deliberate indifference claim because (1) Plaintiff did not have a serious medical need and (2) Defendant Oliver was not indifferent towards any such serious medical need. See Dkt. No. 31-1. Furthermore, Defendant Oliver argues that she is entitled to qualified immunity. See id. Plaintiff cross moved for summary judgment as to all of his claims. See Dkt. Nos. 34-1, 34-2, 34-3, 43.
B. Magistrate Judge Lowe's Report-Recommendation and Order
In his Report-Recommendation and Order, Magistrate Judge Lowe granted Defendant Oliver's motion for summary judgment with respect to Plaintiff's claim that Defendant Oliver acted with deliberate indifference on the day following the incident, but denied the motion in all other respects. See Dkt. No. 50 at 16. Magistrate Judge Lowe noted that, since Plaintiff only showed "slight" swelling . . . and no ice or medications were ordered on the day after he was refused medical treatment, no substantial harm was caused by the delay. See Dkt. No. 50 at 10. Therefore, Magistrate Judge Lowe recommended that the Court grant Defendant Oliver's motion for summary judgment with respect to Plaintiff's deliberate indifference claim as to the day after the incident.
Next, Magistrate Judge Lowe found that genuine issues of material fact were raised as to the existence of Plaintiff's alleged "serious medical need" and as to Defendant Oliver's alleged disregard of Plaintiff's serious medical need. See id. at 7-9. Magistrate Judge Lowe found that Defendant Oliver's notes demonstrate that Plaintiff's left shoulder showed swelling, bruising, and limited range-of-motion, his right knee showed swelling and limited range-of-motion, his right wrist showed limited range-of-motion, and he was experiencing "head pain." See id. at 6. Further, Magistrate Judge Lowe found that Plaintiff asserts that he was not given any medicine for his pain and swelling. See id. Additionally, Plaintiff points to the video recording of the initial patient interview that Defendant Oliver conducted which shows that no ice or medication was distributed, for support that Defendant Oliver did not treat him. See id. at 9. Although Magistrate Judge Lowe found it plausible that "Defendant Oliver might have provided Plaintiff with ice and medication after she conducted her video-taped examination of him," absent a record of this he determined that a genuine issue of material fact was raised as to whether Defendant Oliver disregarded Plaintiff's serious medical need. See id. Therefore, Magistrate Judge Lowe recommended that the Court find that ...