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 violated his rights under the Eighth Amendment when they were deliberately indifferent to his serious medical needs. See Dkt. No. 1. In a Report-Recommendation and Order dated July 22, 2011, Magistrate Judge Homer recommended that the Court grant in part and deny in part Defendants' motion to dismiss. See Dkt. No. 28.
Currently before the Court are the parties' objections to Magistrate Judge Homer's July 22, 2011 Report-Recommendation and Order. See Dkt. Nos. 29, 31.
In his complaint, Plaintiff alleges that his Eighth Amendment rights were violated during his confinement at the Clinton Correctional Facility ("Clinton C.F."). See Dkt. No. 1 at 1. The violations of which Plaintiff complains occurred in October and November of 2009, and January of 2010. See id. at 6. Plaintiff alleges that during that time, the Clinton C.F. medical staff failed to provide him with his medication for an asthma condition and failed to provide him with treatment during an asthma attack. See id. at 6, 7. Also, Plaintiff claims that the medical staff failed to provide him with his seizure medication and denied an emergency medical request that he made, after which he suffered a seizure. See id. Plaintiff further alleges that his appeals to the Clinton C.F. medical staff's superiors were ignored. See id. at ¶¶ 6(e), (g) & (h).
Specifically, Plaintiff claims that, on October 26, 2009, Defendant Badger told Plaintiff that she was tired of bringing him his asthma inhaler and that she would speak with Defendant Adams about giving Plaintiff self-carry privileges for his inhaler. See id. at ¶6(a).On October 28, 2009, Defendant Adams terminated Plaintiff's inhaler prescription. See id. at ¶ 6(e). Then, on October 31, 2009, Defendant Ryan did not give Plaintiff his morning seizure medication. See id. at ¶ 6(c).
Thereafter, on November 4, 2009, Plaintiff suffered an asthma attack, but Defendant Ryan did not provide treatment. See id. at ¶ 6(b). That same day, Plaintiff wrote to Defendant Wright about his problems with the medical staff at Clinton C.F. See id. at ¶ 6(h). Defendant Wright replied that Plaintiff should address his issues to "the health care staff using the existing sick call procedure[s]." See id. Plaintiff also raised his issues with Defendant Artus on November 10, 2009, but they were never resolved. See id. at ¶ 6(g).
On January 19, 2010, Plaintiff suffered a seizure after Defendant Smith denied his request for emergency treatment. See id. at ¶ 6(d). The next day, Plaintiff complained to Defendant Johnson about the issues he was having with her staff, but Defendant Johnson allegedly responded by justifying her staff's behavior and ignoring Plaintiff's medical needs. See id. at ¶ 6(e).
On June 28, 2010, Plaintiff commenced this civil rights action. On January 12, 2011, Defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure arguing that Plaintiff's claims are meritless and that he failed to establish the personal involvement of Defendants Artus, Wright and Johnson. See Dkt. No. 28 at 2, 4. Plaintiff failed to respond to the motion.
B. Magistrate Judge Homer's July 22, 2011 Report-Recommendation and Order
In a July 22, 2011 Report-Recommendation and Order, Magistrate Judge Homer recommended that the Court grant in part and deny in part Defendants' motion to dismiss. See id. Regarding Plaintiff's allegations against Defendants Badger and Adams in relation to Plaintiff's asthma inhaler on October 26 and 28, Magistrate Judge Homer noted that an asthma condition unaccompanied by an attack or other emergent symptoms is not a sufficiently serious medical condition to constitute an Eighth Amendment violation. See id. at 11. Magistrate Judge Homer stated that Plaintiff similarly failed to state a claim in those portions of the complaint where no facts were proffered relating to his asthma diagnosis or any complications he experienced due to the deprivation of his inhaler. See id. Moreover, there was no evidence that Defendants Badger and Adams were aware of Plaintiff's asthma attack or that they were deliberately indifferent to treating it. See id. at 12. Therefore, Magistrate Judge Homer recommended that the motion to dismiss be granted with respect to those Defendants. See id.
Magistrate Judge Homer recommended that the motion to dismiss with respect to Defendant Ryan's failure to bring Plaintiff his seizure medication on October 31, 2009 be denied. See id. at 13. Specifically, Magistrate Judge Homer found that failure to provide medication which would prevent or avert a seizure may demonstrate deliberate indifference to a serious medical condition. See id. at 12-13. Furthermore, Magistrate Judge Homer found that the allegation that Defendant Ryan failed to treat Plaintiff during an asthma attack on November 4, 2009, was sufficient to survive a motion to dismiss. See id. at 12.
On the other hand, Magistrate Judge Homer found that neither Plaintiff's letter to Defendant Wright on November 4, nor Defendant Wright's response was sufficient to establish personal involvement. See id. at 6. Similarly, despite the fact that Plaintiff raised several issues with Defendant Artus on November 10, Magistrate Judge Homer found that he could also be dismissed for lack of personal involvement. See id.
Magistrate Judge Homer found that the allegation that Defendant Smith's January 19, 2010 denial of Plaintiff's request for emergency treatment, whereupon Plaintiff suffered a seizure, was sufficient to survive a motion to dismiss. See id. at 12-13. Again, Magistrate Judge Homer stated that such conduct may demonstrate deliberate medical indifference. See id. at 13.
C. Plaintiff's objections to Magistrate Judge Homer's Report-Recommendation and Order Plaintiff objects to the dismissal of Defendants Badger and Adams. See Dkt. No. 31 at 4.
Plaintiff asserts that they were unqualified personnel and that their rendering of medical services to Plaintiff constituted deliberate indifference. See id. at 5. Plaintiff also argues that they failed to provide him access to specialist care that was required for his condition. See id. Additionally, Plaintiff argues that they were assigned or tried to perform tasks without adequate supervision or that exceeded their training. See id. Next, Plaintiff claims that they were deliberately indifferent because they failed to carry out a physician's orders. See id. Further, Plaintiff argues that Defendant Adams failed to provide him with treatment by a physician when his medical needs called for it. See id.
Plaintiff also objects to the granting of the motion to dismiss as to Defendants Artus and Wright. See id. 6-7. Plaintiff argues that they breached their duty to operate the prison with due regard for the health and safety of each prisoner in it's custody, as required by New York State Corrections Law § 70. See id. Furthermore, Plaintiff argues that Defendant Artus should not have been dismissed because he failed to provide enough medical staff coverage to meet the needs of the prison population ...