DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
In the instant case a pretrial detainee, proceeding pro se, alleges violations of his constitutional rights based upon deliberate indifference to his medical needs. The matter was referred to Magistrate Judge Hugh B. Scott for supervision of all pretrial proceedings pursuant to 28 U.S.C. §636(b)(1). Defendant filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 14) On April 19, 2013, Magistrate Judge Scott issued a Report and Recommendation recommending that defendant's motion to dismiss be granted in part and denied in part. (Dkt. No. 23) Both parties filed objections.
A district court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. §636(b)(1). Further, the court is required to make a de novo determination as to the aspects of the Report and Recommendation to which specific objections are made. 28 U.S.C. §636(b)(1)(C).
For the reasons set forth in detail below, the Court accepts in part and rejects in part Magistrate Judge Scott's Report and Recommendation, and defendant's motion to dismiss is denied in its entirety.
Plaintiff alleges that defendant Link, a nurse practitioner at the Buffalo Detention Center, Batavia, New York, demonstrated deliberate indifference to the medical care and treatment of his back, left hip, legs and right foot. (Dkt. No. 1) On January 7, 2013, defendant filed a motion to dismiss plaintiff's complaint in its entirety, arguing that plaintiff fails to allege a constitutional violation as a matter of law. Plaintiff filed a response on April 4, 2013 and defendant filed a reply on April 8, 2013. (Dkt. Nos. 21 and 22) Magistrate Judge Scott issued a Report and Recommendation recommending that defendant's motion be granted with respect to the claims arising from the treatment of plaintiff's back, left hip and legs, and denied with respect to the claims arising from the treatment of plaintiff's right foot. (Dkt. No. 23)
On May 2, 2013, defendant filed objections to the portion of the Magistrate Judge's Report and Recommendation which recommends that this Court deny defendant's motion to dismiss plaintiff's claims related to the care and treatment of plaintiff's foot. (Dkt. No. 24) Defendant argues that the Magistrate Judge erroneously applied the subjective prong of the two-part standard for a deliberate indifference claim by a pre-trial detainee, which requires that the defendant act with a sufficiently culpable state of mind. Id.
On May 7, 2013, plaintiff filed objections to the portion of the Magistrate Judge's Report and Recommendation recommending dismissal of plaintiff's deliberate indifference claims related to his back, left hip, and legs. (Dkt. 26) Therein, plaintiff alleges for the first time that he was "over prescribed medication for [his] preexisting back injury which put [his] health and safety at risk." Id. Plaintiff also asks that this Court "compel the medical staff to release all medical records concerning all actions, prescriptions, entries, or otherwise concerning treatment, observation or otherwise concerning my back, left hip, and legs." Plaintiff claims that these documents contain "facts and statements" which will support his deliberate indifference claims with respect to the treatment of his back, left hip, and legs. Id.
Defendant responded to plaintiff's objections and motion to compel on May 14, 2013. (Dkt. No. 27) Plaintiff responded to defendant's objections May 30, 2013, (Dkt. No. 28), at which time this Court considered the matter submitted.
While the Eighth Amendment's prohibition with respect to cruel and unusual punishment does not apply to pretrial detainees, the Fifth and Fourteenth Amendments provide pretrial detainees, like plaintiff, a due process right to adequate medical treatment that is parallel to the Eighth Amendment rights afforded to sentenced prisoners. Lovell v. Cayuga Correctional Facility, et al., 2004 U.S. Dist. LEXIS 20584 (WDNY 2004). In order to establish an unconstitutional denial of medical care and treatment under either the Fifth or Eighth Amendments, a prisoner must demonstrate deliberate indifference to their serious medical need. Cuoco v. Moritsugu, 222 F.3d 99 (2d. Cir. 2000). The "serious medical need" prong is an objective component, which requires "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d. Cir. 1990). Determining whether a prison official acted with deliberate indifference is a subjective test, and requires the knowing or conscious disregard of an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). "Mere medical malpractice" is not akin to deliberate indifference. Cuoco, 222 F.3d at 107.
With respect to plaintiff's claims concerning his infected right foot, plaintiff sufficiently alleges a serious medical condition. His complaint states that he suffered a serious staph infection which required treatment at Erie County Medical Center, where a physician informed plaintiff that he had been at real risk of losing his leg below the knee. In her objections, defendant argues that plaintiff fails to meet the subjective component of the test, since plaintiff's allegations that treatment was inadequate and delayed amount to mere negligence rather than deliberate indifference. Defendant contends that plaintiff's complaint is devoid of "any allegation that [defendant] refused to treat his foot or disregarded the seriousness of his infection."
However, plaintiff's complaint alleges that after defendant diagnosed plaintiff's infection she refused his request for further examination and he was not placed on antibiotics until three to four weeks later. Based upon the allegations of the complaint, it does not appear that there was ongoing treatment during that time and it is unclear what treatment, if any, occurred from the ...