Full opinion text
MEMORANDUM AND ORDER TRAGER, District Judge: Lawrence Hardy (“Hardy”) brings this action against numerous New York City and New York State defendants as a result of his allegedly unlawful arrest on October 15, 2007, and subsequent incarceration from October 15, 2007, to March 11, 2008. Just prior to his arrest, Hardy had been diagnosed with an ear condition. This condition deteriorated significantly during his subsequent incarceration, ultimately necessitating several surgeries and lengthy rehabilitation. ' Hardy’s primary claim is that the staff of various facilities gave unconscionably little attention to this ear problem, amounting to deliberate indifference to his serious medical condition in violation of 42 U.S.C. § 1983, conspiracy in violation of 42 U.S.C. § 1985 and municipal liability. Read at its broadest, Hardy’s complaint can also be construed to allege: (1) false arrest under state law and 42 U.S.C. § 1983; (2) assault and battery; (3) malicious prosecution; and (4) negligence in hiring, retention and training of employees. Defendants to this action include the City of New York (the “City”), the City of New York Department of Correction (“NYCDOC”), Correction Officer Patrick Dorvil, Badge No. 11544 (“Officer Dorvil,” together with the City and NYCDOC, “City defendants”), Frantz Medard, M.D. (“Dr. Medard”), Officer Ricky Reynolds (“Officer Reynolds”), Officer Brian Lewis (“Officer B. Lewis”), Officer George Lewis (“Officer G. Lewis”), Officer Thomas Lewis (“Officer T. Lewis,” together with Officers Reynolds, B. Lewis and G. Lewis, the “Willard Correction Officers”), Nurse Ann Dalecki (“Nurse Dalecki”), P.A. Noriel DeGuzman, Kamal Pathak, M.D. (“Dr. Pathak,” together with the Willard Correction Officers, Nurse Dalecki and P.A. Noriel DeGuzman, “State defendants”) and other unnamed medical providers, police officers and correction officers in the employ of NYCDOC and New York State Department of Correctional Services (“NYS DOCS”) (collectively referred to as “defendants”). All defendants have filed motions to dismiss. Defendant Dr. Medard moves to dismiss Hardy’s § 1983 deliberate indifference claim against him under Fed.R.Civ.P. 12(b)(6), or in the alternative, moves for summary judgment pursuant to Fed. R.Civ.P. 56. City defendants move to dismiss Hardy’s amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. State defendants move to dismiss the amended complaint pursuant to Fed. R.Civ.P. 12(b)(1), 12(b)(6) and 12(d). For the reasons explained below, defendants’ motions are granted in part and denied in part. Background (1) Pertinent History of Medical Treatment and Incarceration For reasons explained infra, defendants’ motions are treated as motions for summary judgment with respect to Hardy’s claims of deliberate indifference to his medical needs. Accordingly, the following facts are based upon Hardy’s amended complaint as well as the medical records submitted along with the parties’ motion papers. On October 6, 2007, Hardy sought medical attention at Woodhull Hospital emergency room in Brooklyn, New York (“Woodhull”) for pain he was experiencing in his left ear. Pl.’s Aff. Opp’n Defs.’ Mot. Dismiss, Ex. D (“PL’s Ex. D”) at 21; see also Am. Compl. ¶ 26; Tr. PL’s § 50-h Hr’g Test. (“50-h Test.”) at ll. Hardy was given an appointment to see an ear, nose and throat (“ENT”) specialist the following day. 50-h Test, at 11-12. When Hardy returned for the appointment, the ENT specialist said that there was “something wr[o]ng, but he didn’t know exactly what,” and Hardy was given another follow-up appointment for October 18, 2007. 50-h Test, at 12; Am. Compl. ¶ 27. a. Arrest Before this follow-up appointment could occur, however, Hardy was arrested by police officers for an alleged parole violation. Am. Compl. ¶¶ 28-32; 50-h Test, at 12-16. Hardy claims that on October 15, 2007, police officers entered his grandmother’s residence “looking to serve a warrant for someone who was renting a room there in 2005.” 50-h Test, at 13. Hardy does not know how the police officers entered the residence. 50-h Test, at 13. After entering the residence, the officers woke Hardy up and began to question him as to whether he knew the individual they were looking for. 50-h Test, at 13-14; Am. Compl. ¶ 29. Hardy informed them that he did not know the man in the picture and told them that “it [was] obvious he [was] not in the room with [Hardy] because there [was] nowhere for him to hide.” 50-h Test, at 14. The officers subsequently asked Hardy his name, which he refused to provide. However, after officers saw Hardy’s identification on the dresser, they took it out of the room, ran his name and found an alleged parole violation. Am. Compl. ¶ 30; 50-h Test, at 14. Upon returning to the room, they informed Hardy that he had an “active parole violation for absconding” and arrested him. 50-h Test at 14, 16. Hardy now asserts that his arrest was improper because the alleged parole violation was in error. Although Hardy had previously served a four-year sentence for robbery and had been released in 2006, Hardy contends that he was never properly sentenced to parole for that offense. Am. Compl. ¶ 31; 50-h Test, at 12-16. When asked during his 50-h Testimony whether he was on parole, Hardy responded that “[a]ecording to the State of New York, [he] was on parole,” but also stated that he personally did not think he was on parole. 50-h Test, at 14. Hardy concedes that his previous arrest and incarceration for robbery would typically give rise to a term of parole. 50-h Test, at 15. Further, Hardy has clarified that he was in fact subject to a term of Post Release Supervision (“PRS”), which was administratively imposed by NYS DOCS. Pl.’s Aff. Opp’n Defs.’ Mot. Dismiss at 16-17. However, the Second Circuit and the New York Court of Appeals have since held that the administrative imposition of PRS is improper. See Earley v. Murray, 451 F.3d 71, 75-76 (2d Cir.2006); People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008); Garner v. N.Y. Dep’t of Corr. Servs., 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, 889 N.E.2d 467, 470 (2008). Seizing on this fact, Hardy believes that because the method through which he was sentenced to PRS is no longer valid, he could not have violated his PRS term, and thus any arrest and incarceration for such a violation was improper. Nevertheless, he admitted in his 50-H Testimony that “[a]s it stands, the parole violation is a valid parole violation, as it stands currently.” 50-h Test, at 20. After his arrest on October 15, 2007, Hardy had a hearing before a judge at Riker’s Island sometime in mid-November and was sentenced to a ninety-day program as a result of his parole violation. Id. at 20-22. It was while awaiting this sentencing and then serving this sentence that Hardy’s claims regarding deliberate indifference to his medical condition arose, as explained below. b. Rikers Island After his arrest on October 15, Hardy was taken to Otis Bantum Correctional Center (“OBCC”), a facility on Rikers Island. There, Hardy was “processed and taken to medical intake as are all prisoners who initially arrive at Rikers Island.” Am. Compl. ¶ 32-33; 50-h Test, at 17. Hardy claims that he explained to staff, including defendants Officer Dorvil and Dr. Medard, that he was experiencing extreme ear pain and dizziness and had a follow-up appointment scheduled at Woodhull. Am. Compl. ¶ 34. According to Hardy’s complaint, defendants, including Officer Dorvil and Dr. Medard, “told him he was fine and sent him into lockup.” Id. ¶ 35. However, the record contradicts Hardy’s claims that Rikers Island intake staff completely ignored his medical issue. Specifically, Hardy’s “Intake History and Physical Exam” form from October 15 indicates that medical staff noted Hardy’s ear problem and placed him on oral medication, which pharmacy records show was Amoxicillin. Decl. Laura A. Del Vecchio Supp. Def.’s Mot. Dismiss (“Del Vecchio Decl.”), Ex. I at NYC6-9; Del Vecchio Decl., Ex. J at NYC66. Moreover, the evidence indicates that the named individual City defendants played limited roles. Officer Dorvil appears to have completed certain forms relating to Hardy at intake, including a discharge planning questionnaire and a suicide prevention screening form. Del Vecchio Decl., Ex. I at NYC45-46. The latter form seems to indicate that Hardy was not referred to the medical unit by Officer Dorvil at the time it was completed. Id. at NYC46. Dr. Medard, on the other hand, appears to have been entirely absent from Hardy’s intake. Dr. Medard has submitted a declaration stating that in 2007, he did not work at OBCC or conduct intake evaluations at Rikers Island. Del Vecchio Decl., Ex. K. Instead, Dr. Medard explains that at the time of Hardy’s arrest he was employed at the medical clinic at George Motchan Detention Center (“GMDC”), a separate facility on Rikers Island. Id. Thus, according to Dr. Medard, the only way inmates could come into contact with him would be by scheduling a sick call. Id. Although the circumstances of the transfer are not made clear, at some point in mid-October Hardy was transferred to GMDC. There, he had a follow-up appointment for evaluation of otitis media (ear infection or swelling of the middle ear) on October 25, 2007. Del Vecchio Deck, Ex. I at NYC14-15. Notes from the October 25 evaluation state that Hardy claimed his ear felt much better and that he denied swelling, painful cervical lymph nodes, discharge or pain. Id. at NYC14. The examination of Hardy’s left ear showed no erythema (redness) or cerumen (earwax). Id. No treatment was indicated and no follow-up was scheduled. Id. As this medical visit was ten days after intake, it would have taken place toward the end of the course of antibiotics that were prescribed to Hardy during intake. See Del Vecchio Deck, Ex. J. at NYC66-67. Although it is unclear what prompted the visit, approximately ten days later, on November 5, 2007, Hardy was seen by defendant Dr. Medard. Del Vecchio Deck, Ex. I at NYC13. Dr. Medard, an internist, claims that this was the only time that he saw Hardy. This claim is supported by the medical records that relate to Dr. Medard, all of which bear the date November 5. See Del Vecchio Deck, Ex. I at NYC13, 21, 33, 36. At this November 5 appointment, Hardy told Dr. Medard that he had been diagnosed with a perforated tympanic membrane (ear drum) and had been given antibiotic drops prior to his arrest. Id. at NYC13. Hardy complained to Dr. Medard of pain and decreased hearing in his left ear and stated that he could “feel it draining.” Id. After examining Hardy, Dr. Medard noted that Hardy had left otitis media. Id. He prescribed another course of antibiotics and placed orders for Augments and Cortisporin ear drops. Id. at NYC13, 33. He also referred Hardy to an ENT. Id. at NYC13, 21. It is unclear for what date this ENT appointment was originally requested, but Hardy’s complaint contends that it was only after a fainting spell a few weeks later that he was finally permitted to see an on-site ENT. Am. Compl. ¶ 36. An On-Island Specialty Clinic form indicates that Hardy saw the on-site ENT on November 15, 2007. Del Vecchio Deck, Ex. I at NYC22. Hardy testified that at the time of this appointment he had swelling in his neck about “the size of a small golf balk” 50-h Test, at 19. The ENT placed an order for Cortisporin and Ciprofloxacin (“Cipro”). Del Vecchio Deck, Ex. I at NYC23. Hardy received these prescriptions, but claims they were ineffective. 50-h Test, at 19; Am. Compl. ¶ 39. Although an order was written for a followup appointment in two weeks time with the ENT, Del Vecchio Deck, Ex. I at NYC24, Hardy would miss this appointment because of his subsequent transfer to Downstate Correctional Facility (“Downstate”). See Am. Compl. ¶¶ 38, 40; see also 50-h Test, at 22-23 (explaining that Hardy’s request for a medical hold to delay transfer was denied). Hardy claims, and defendants’ papers do not dispute, that this November visit to the on-site ENT was the only time Hardy was treated by an ENT during his time on Rikers Island. 50-h Test, at 33. Hardy contends that over the four- to five-week period spanning from his arrival at OBCC on October 15, 2007 until he finally saw this on-site ENT in mid-November, the only treatment he received was several appointments with “typical Rikers Island medical staff [who] told [him] there was nothing wrong with [him].” 50-h Test, at 18. c. Downstate Hardy was transferred to Downstate on or about November 27, 2007. See Decl. Wesley E. Bauman Supp. Defs.’ Mot. Dismiss (“Bauman Deck”), Ex. B at MED 099. Hardy testified that throughout medical intake processing at Downstate, he was experiencing extreme pain, blurred vision, discharge from his left ear, hearing loss and increased swelling in his neck, “noticeable to the naked eye.” 50-h Test, at 23; see also Am. Compl. ¶ 40. Hardy contends he “literally begged” the medical staff at Downstate to send him to a specialist. 50-h Test, at 23. However, the correction officer at the medical intake area and defendant P.A. Noriel DeGuzman allegedly denied Hardy’s request, stating that Downstate was a transit facility and that the issue would be addressed at Hardy’s permanent jail. Id. at 25; Am. Compl. ¶¶ 41-42. Downstate medical records show that staff was aware of Hardy’s ear problem. See, e.g., Bauman Deck, Ex. B at MED 006 (stating on an undated inquiry and response form that Hardy had a current hearing problem and a current health problem described as a “ruptured L eardrum since 10/07”); see also id. at MED 099, 100. However, whether any action was taken at Downstate to address the issue is far from clear. Hardy appears to have undergone a standard medical evaluation, and was then sent to the general population of the facility without referral to a physician. See id. at MED 007. No on-going or newly-prescribed medications are indicated on the forms. See, e.g., id. at MED 100; see also Del Vecchio Deck, Ex. I at NYC27. Hardy remained at Downstate until at least December 4, 2007, after which he was transferred to Willard Drug Treatment Campus (“Willard”). Bauman Deck, Ex. C at MED 002. No further evidence has been submitted that would indicate that Hardy received any medical attention for his ear at Downstate. d. Willard Upon arrival at Willard on or about December 5, 2007, Hardy was processed through medical intake by staff, including defendants Willard Correction Officers and Nurse Daleeki. Am. Compl. ¶¶ 43-44. Hardy claims that at this point his vision and hearing were dramatically reduced, he had difficulty walking and standing, the swelling in his neck was about the size of a tennis ball and puss was emanating from his ear in a constant flow. Id.; 50-h Test, at 25-26. These claims are not in conflict with the State’s health records, which include handwritten progress notes indicating that on the day following Hardy’s arrival at Willard, Hardy complained that his ear was in “excruciating pain” and that it was “draining green/yellow.” Bauman Deck, Ex. C at MED 023. The notes indicate that Hardy had a wad of toilet paper in his ear and that when he removed the paper, “cream colored drainage” appeared. Id. Intake notes indicate that Nurse Daleeki was involved in Hardy’s Willard intake. The Willard “Intake Summary” form, dated December 5, 2007, lists a possible ruptured ear drum as a current health problem and appears to be signed by Nurse Daleeki. Id. at MED 002. The form describes Hardy’s past prescriptions for Cipro and Cortisporin, but it is unclear whether any medication was ordered for Hardy at that time. See id. An appointment for evaluation of Hardy’s ear was set for December 6, 2007. Id. at MED 002, 023. Hardy acknowledges that he was frequently seen by nurse practitioners at Willard. 50-h Test, at 26 (testifying that he “literally was in the medical untit [sic] there at least four days out of the week every single week”); see also Am. Compl. ¶ 45. State progress notes indicate that Hardy was evaluated by Willard’s medical staff on December 6, 10, 11 and 17. Bauman Deck, Ex. C at MED 020-022. Over this period of time, from December 6 through December 17, 2007, progress notes indicate that Hardy received some treatment for left otitis media, perforation and mastoiditis. See id. at MED 020-022. Specifically, Hardy appears to have had an ear culture on December 6, 2007. Id. at MED 029. A December 6 progress note reports “copious yellow discharge from [Hardy’s] ear canal” and an evaluation of left otitis media and perforation. Id. at MED 022. The note lists various medications and a follow-up appointment scheduled for December 13, 2007. Id. Notes further indicate that on December 10, Hardy complained of increased pressure and dizziness and that drainage, some of which may have been bloody, was observed. Id. at MED 021. Hardy was instructed to take his medication as directed and the future December 13, 2007 appointment was again noted. Id. Hardy was back the following day, December 11, 2007, complaining of increased discomfort. Id. The corresponding progress note indicates that the December 13 appointment was moved up to that same day, December 11. Id. The subsequent note, also dated December 11, goes on to state that Hardy was experiencing continued pain; copious yellow drainage and possibly an odor were observed. Id. A thirty-day supply of Cipro, an issuance of cotton balls, an otolaryngology (“OTO”) referral and an order for a CT Scan were provided for Hardy at this time. Id. The OTO referral was made with the urgency of care marked “Soon” (which the form defines as “14 DAYS”) as opposed to “Emergency” (“24 HOURS”) or “Urgent” (“5 DAYS”). Id. at MED 067. Hardy claims he was promised that he could see an ENT when one was available, Am. Compl. ¶ 46, but that he was never treated by an ENT on-site at Willard. 50-h Test, at 27. On December 17, 2007, Hardy returned to the infirmary complaining of pain and dizziness and stated, “I need to go to a hospital.” Bauman Deck, Ex. C at MED 020. Progress notes from that date indicate “copious” and “chronic” drainage. Id. Hardy explained to staff that he had not been taking his Cipro as directed because the information sheet stated not to take it in combination with his other medication; staff directed Hardy to begin his course of Cipro as previously ordered. Id. Staff also noted that Hardy’s ear culture revealed “no growth.” Id. at MED 020, 029. No follow-up appointment appears to have been scheduled, see id., but, as mentioned supra, an OTO referral had already been made on December 11. Id. at MED 067. Two days later, a progress note dated December 19, 2007 indicates that staff received a call from Hardy’s mother regarding Hardy’s ear problems. Id. at MED 020. Hardy claims that his mother called the facility threatening to take legal action, which was what prompted officials to allow Hardy finally to see a specialist. Am. Compl. ¶ 46. On December 21, 2007, ten days after the initial OTO referral was made, Hardy was seen by defendant Dr. Pathak (presumably an otolaryngologist). Bauman Deck, Ex. C at MED 067. Although the paperwork from this appointment does not specify where it took place, and State defendants have provided no additional information regarding Dr. Pathak, Hardy recalled an appointment outside of the facility on or about December 18, 2007, with a doctor retained by Willard. See Am. Compl. ¶ 46. Dr. Pathak’s handwritten notes from this appointment restate Hardy’s symptoms of constant drainage, pressure, pain and minimal hearing. Bauman Deck, Ex. C at MED 067. Hardy recalled that the doctor drained puss from an abnormally large abscess in the back of Hardy’s head and scheduled an operation for January 3, 2008. Am. Compl. ¶47; Bauman Deck, Ex. C at MED 044, 034. Dr. Pathak’s orders included a course of Cipro until time of surgery, a CT scan “ASAP” and a mastoidectomy needed “soon” to relieve the abscess. Bauman Deck, Ex. C at MED 067; see also 50-h Test, at 28 (stating that the doctor “made it very clear [Hardy] was going to need an operation to correct the problem because of the severity of it as a direct result of it going untreated for almost two months at that point”). Treatment records from December 21 onward give the impression that Dr. Pathak was, to at least some extent, responsible for Hardy’s care during the remainder of his sentence at Willard. See, e.g., Bauman Deck, Ex. C at MED 034, 044, 048. However, a different physician appears to have signed the “Request” portion of a “Request and Report of Consultation” form filled out on either December 25 or December 28, 2007, which requests a consultation for Hardy with the urgency of care marked “Emergency.” Id. at MED 038 (the “Consult Requested By:” line appears to say “Dr. Graceffo/To A. Dalecki”). It appears that it was only after this “emergency” request that Hardy was finally taken to Cayuga Medical Facility (“Cayuga”) for the CAT scan that Dr. Pathak ordered “ASAP” on December 21. Id. There is no documentation from the time period between December 21, when Hardy was first examined by Dr. Pathak, and December 25/28, when the new “emergency” request was made, to indicate what prompted this emergency request from Dr. Graeeffo. On December 28, 2007, Hardy was taken to Cayuga, where he had a CT scan. Id.; Pl.’s Ex. D at 224. Hardy claims that the Cayuga radiologist told prison officials that Hardy “needed emergency surgery because the infection was life threatening.” Am. Compl. ¶ 48; see also 50-h Test, at 28-29 (explaining that the radiologist called Willard and told officials to bring Hardy back to the hospital to be admitted for emergency surgery). Hardy’s claims are in part corroborated by the December 28 DOCS “Consultant Report,” where a doctor whose name is illegible noted that after the CT scan, which was done “for pre-surgical planning,” the radiologist called the medical office at Willard and suggested a transfer. Bauman Deck, Ex. C at MED 038. The notes go on to state that the writer spoke to Dr. Pathak and another doctor, that the “CT results [were] not unexpected,” that Hardy should continue taking his Cipro and that surgery would be conducted as previously arranged. Id. State defendants believe that Hardy’s claim of a “life threatening” condition is contradicted by the December 28 report from the radiology center at Cayuga, which states “[t]he patient should be evaluated for timely surgical evacuation.” Id. at MED 039. However, Cayuga staff also indicated that Hardy should return earlier “if fever, chills, increased pain otherwise follow up with Dr. Pathak as previously arranged.” Id. at MED 061. In spite of this instruction, it appears that Hardy was running a fever of 100.3 degrees at the time of his discharge from Cayuga. PL’s Ex. D at 35. It is not clear whether this fever persisted in the coming days, as there is no documentation for the period between Hardy’s December 28 visit to Cayuga and his January 3 operation. Although there are no medical records that confirm a December 29 visit to Cayuga, Hardy claims that the following day, more tests were run at Cayuga Medical Facility. Am. Compl. ¶ 49; 50-h Test, at 29. Hardy claims that “[u]nbelievably, the doctor retained by Willard DTC, upon information and belief Kamal Pathak, M.D., ordered [Hardy] back to prison because he already had a surgery date scheduled even though the Cayuga radiologist explained that [Hardy’s] life was in danger.” Am. Compl. ¶ 50. Hardy, therefore, remained at Willard awaiting his scheduled surgery. Hardy claims that in the days preceding the scheduled surgery he “passed in and out of consciousness and was unable to eat, see, or hear.” Am. Compl. ¶ 51. As noted above, no medical records exist to indicate that Hardy’s condition was monitored by Willard staff during this period. A mastoidectomy was performed on January 3, 2008, apparently by Dr. Pathak. See Bauman Deck, Ex. C at MED 048 (noting, post-surgery, a chronic mastoid abscess causing a Bezold’s abscess); Am. Compl. ¶ 52 (claiming that surgery was performed by Dr. Pathak at Cayuga). Hardy was admitted to Willard’s infirmary after the operation and was scheduled to remain there until January 7, 2008. See PL’s Ex. D at 241; see also 50-h Test, at 31 (testifying that staff kept him in the facility infirmary for three days following the surgery). Hardy claims that upon his immediate return to Willard after the surgery, defendants Willard Correction Officers “refused him follow-up treatment or appointments with the doctor,” Am. Compl. ¶ 53, which Hardy requested daily. 50-h Test, at 36. However, state records indicate that a consultation with an ENT specialist was requested on January 4, 2008 and scheduled for January 15, 2008. See Bauman Decl., Ex. C at MED 048. A progress report from January 8 notes swelling in the mastoid area, but observes that Hardy stated he was no longer having any pain and was feeling much better. PL’s Ex. D at 246. A consultation with defendant Dr. Pathak was held on January 14, 2008, at which point it was noted that most of Hardy’s ear pain had subsided, ear drainage had decreased significantly and the ear canal was visible, although there seems to have been continued swelling. See Bauman Decl., Ex. C at MED 048. “Satisfactory progress” was indicated. Id. Unfortunately, though, Hardy’s condition appears to have again deteriorated significantly between this time and the time of his release from Willard on March 11, 2008. Hardy testified that, despite continued use of oral antibiotics after the operation, in the following weeks his hearing only worsened and he developed a staph infection from unsanitary post-operation care. 50-h Test, at 31, 36; see also Am. Compl. ¶ 54. Medical records appear to confirm that two ear cultures taken in February 2008 found the existence of some staphylococcus. According to Hardy, this staph infection caused significant puss build-up in his face, which Willard staff allowed to fester there for months. 50-h Test, at 39. Although requesting treatment daily, Hardy claims to have been given nothing more than “Motrin and a Band-Aid.” 50-H Test, at 36, 39. Treatment notes from January and February are in conflict with Hardy’s claim to have received nothing more than Motrin, but repeatedly acknowledge that Hardy continued to experience symptoms of drainage, swelling, pressure and pain, which were treated — apparently ineffectively— with antibiotics. PL’s Ex. D at 178-85; Bauman Decl., Ex. C at MED 044. More specifically, progress notes from appointments at the infirmary on January 22, 2008, and again on January 29, 2008, indicate that Hardy was complaining of thick yellowish drainage and swelling in his left ear. PL’s Ex. D at 182-83. An appointment was scheduled for February 1, 2008 at which Hardy complained of head pain, dizziness and pressure over his left eye. PL’s Ex. D at 182. Copious yellow drainage was observed. Id. A report by Dr. Pathak, dated February 5, 2008, notes continued drainage, pressure and pain, that the abscess was still present and that if there was no improvement within two weeks, another CT scan should be run. Bauman Deck, Ex. C at MED 044. Hardy continued to be treated with antibiotics. Id. A follow-up appointment was requested on February 6, 2008 to be scheduled in 30 days time. Id. at MED 034. It appears that Hardy had an additional CT scan at Cayuga on February 25, 2008, which indicated continued “extensive left mastoid sinus mucosal inflammatory disease.” Id. at MED 041-042. Progress notes from around this time, dated February 14, 19, 24, 25, 27, 28 and 29, as well as March 3 and 4, 2008, report that Hardy was continuing to experience drainage. See PL’s Ex. D at 178-81. One note from February 29, 2008 describes that the provider opened up the “area behind [left] ear that [was] swollen and infected” and “drained [a] copious am[ount] [of] purulent drainage,” after which Hardy said his ear felt “much better.” Id. at 178. Other notes reference the results of an ear culture, continued use of antibiotics and a future appointment that had been scheduled with the ENT. Id. at 177. During an ENT consultation on or about March 5, 2008, Dr. Pathak noted renewed draining and continued swelling, concluding that Hardy needed a revision of mastoidectomy for a persistent left mastoid abscess. Bauman Deck, Ex. C at MED 034. A medical form completed March 5, 2008, marked that Hardy “needs outpatient care/medical follow-up within two weeks of release,” PL’s Ex. D at 252, and Dr. Pathak’s consultation notes from the same day indicate an appointment Hardy scheduled at Manhattan Eye and Ear (“MEE”) hospital for April 14, 2008, following Hardy’s release. Bauman Deck, Ex. C at MED 034. A progress note dated March 7, 2008 states “No med. emerg.” Id. at 176. The next and seemingly final note is a stamp from March 11, 2008, that reads “COMPLETED PROGRAM TODAY.” Id. e. Post-Release On March 11, 2008, Hardy was released from custody. Am. Compl. ¶55. Hardy claims that he “first reported to his parole officer in order to avoid re-imprisonment.” Id. The complaint states that on March 14, 2008, Hardy reported to MEE where he was admitted immediately and diagnosed with a life-threatening infection. Id. ¶ 56. However, medical records from the hospital indicate an admission date of March 17, 2008. PL’s Ex. D at 587. Hardy testified that at the time of his admission, the knot in his neck was gone, but his face was severely swollen and twelve ounces of puss had to be removed. 50-h Test, at 38; see also Am. Comp. ¶ 56 (“Puss was allowed to fester in his face for over 12 weeks.”). A letter from Dr. Vikas Mehta of MEE states that Hardy was hospitalized on-site from March 17, 2008 until March 28, 2008 for a severe infection. PL’s Ex. D at 560. The letter further indicates that Hardy would need four to six-weeks of “significant post operative care.” Id. While at MEE, from March 14 to March 28, 2008, Hardy was placed on intravenous antibiotics and underwent two surgeries. Am. Compl. ¶ 57. When Hardy developed a secondary infection he was readmitted to MEE on April 16, 2008, and was again placed on intravenous antibiotics. Id. ¶ 58; 50-h Test, at 41. Hardy was moved from MEE to Water-view Nursing on April 25, 2008, still suffering from acute mastoiditis. PL’s Ex. D at 290. Hardy remained on intravenous antibiotics for an additional eight weeks and had one subsequent surgery to remove a drainage tube, with several future surgeries scheduled in order to repair the hearing in his left ear. Am. Compl. ¶ 59; 50-h Test, at 42. As of August 2008, Hardy reported that he was “deaf in [his] left ear as a direct result of the infection being in my head for so long, it ripped my ear canal apart.” 50-h Test, at 42-43. The medical records submitted with Hardy’s opposing papers indicate the Hardy’s treatment at Waterview Nursing ended on September 17, 2008. See PL’s Ex D at 300. However, Hardy’s amended complaint, dated July 7, 2009, stated that he was a twenty-seven-year-old man still residing in a nursing home, who necessitated ongoing treatment for his injuries stemming from defendants’ failure to afford him proper medical care. Am. Compl. ¶ 60; see also 50-h Test, at 43. (2) The Current Action On January 15, 2009, Hardy commenced the instant action. On June 5, 2009, City defendants’ counsel provided Hardy’s counsel with medical records from Hardy’s time at Rikers Island. About one month later, on July 7, 2009, Hardy filed an amended complaint naming additional defendants. A copy of the transcript from Hardy’s 50-h testimony is annexed to Hardy’s amended complaint. All defendants have now moved to dismiss Hardy’s complaint, or, in the alternative, for summary judgment, on various theories. Dr. Medard moves to dismiss Hardy’s § 1983 claims against him, arguing that (1) the acts alleged do not rise to the level of deliberate indifference to Hardy’s medical needs; and (2) even if the allegations are sufficient, the records of Hardy’s treatment at Rikers Island contradict Hardy’s claims, as they demonstrate that on the one occasion that defendant Dr. Medard saw Hardy, he appropriately attended to Hardy’s medical needs. City defendants argue that (1) Hardy’s false arrest and malicious prosecution claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because Hardy has not established that his parole revocation has been invalidated; (2) Hardy fails to set forth the proper elements for a municipal liability claim and fails to allege a facially plausible claim under 42 U.S.C. § 1983; (3) pursuant to the New York City Charter, NYCDOC is not an entity subject to suit; and (4) the allegations are not sufficient to maintain a claim for deliberate indifference. State defendants present similar arguments to City defendants, and add arguments that: (1) defendants are entitled to qualified immunity because Hardy’s claims do not touch upon clearly established federal rights; (2) Hardy’s claims against State defendants are barred by the Eleventh Amendment to the United States Constitution because the claims are made against defendants in their official capacities; and (3) regarding a request by Hardy for leave to include NYS DOCS as a defendant, any such request should be denied because DOCS is also immune from suit under 42 U.S.C. § 1983. Defendants also request that the court decline to exercise pendent jurisdiction over Hardy’s state law claims. As explained below, defendants’ motions are granted in part and denied in part. Discussion (1) Abandonment of Certain Claims At the outset, some of Hardy’s claims will be deemed abandoned. Federal courts have the discretion to deem a claim abandoned “when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way.” Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y.2003); see also Lipton v. Cnty. of Orange, 315 F.Supp.2d 434, 446 (S.D.N.Y.2004) (“This Court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s arguments that the claim should be dismissed.”). Here, Hardy’s affirmation in opposition to defendants’ motions to dismiss addresses only Hardy’s claims for: (1) deliberate indifference to Hardy’s serious medical condition pursuant to 42 U.S.C. § 1983, (2) false arrest, (3) malicious prosecution and (4) municipal liability. Absent from Hardy’s papers is any mention of his claims that: (1) police and correction officers assaulted and battered him, Am. Compl. ¶ 68, (2) defendants were negligent in their hiring, retention and training of employees, id. ¶ 75, or (3) defendants, “motivated in part by racial and/or ethnic animus, conspired to deprived [sic] plaintiff of his federal civil and constitutional rights,” id. ¶ 79. Moreover, no facts that might form a basis for these claims can be found anywhere in Hardy’s complaint. Accordingly, although Hardy’s failure to respond to defendant’s arguments might not compel abandonment on its own, the fact that these claims are entirely unsupported makes a finding of abandonment particularly appropriate. Thus, Hardy’s claims of assault and battery; negligent hiring, retention and training; and conspiracy to deprive plaintiff of his civil rights under 42 U.S.C. § 1985 are deemed abandoned. (2) Conversion of Motions and Governing Standards Although defendants have moved to dismiss under Rule 12(b)(6), consideration of the voluminous evidence submitted by both sides requires conversion of at least portions of defendants’ motions into motions for summary judgment. See Fed.R.Civ.P. 12(d); see also Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999). Both sides have submitted medical records that speak to Hardy’s claims of deliberate indifference to his serious medical condition. Accordingly, defendants’ motions to dismiss this claim and any claim for municipal liability based upon deliberate indifference will be converted into motions for summary judgment. Cf. In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.1985) (explaining that conversion is appropriate where non-moving party “should reasonably have recognized the possibility that the motion might be converted into one for summary judgment”); Zynger v. Dep’t Homeland Sec., 615 F.Supp.2d 50, 59 n. 9 (E.D.N.Y.2009) (“Where a party has submitted evidence outside the complaint, that factor weighs in favor of that party having had sufficient notice that a motion to dismiss might be converted into a motion for summary judgment ----”), aff'd, 370 Fed.Appx. 253 (2d Cir.2010). However, as no party has submitted any evidence that might speak to Hardy’s claims of false arrest or malicious prosecution, the plausibility of these claims is determined on the pleadings alone. When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court shall “construe plaintiff[’s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff’s] favor.” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009). To survive a motion to dismiss, a complaint must state a claim to relief that is “plausible on its face.” Bell Atl. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[L]egal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quoting Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (internal quotation marks and alterations omitted). Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When deciding the motion, a court must “resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006). Summary judgment cannot be granted “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). (3) Hardy’s Claims Against State Defendants and NYCDOC As State defendants note in their moving papers, Hardy’s complaint does not specify whether damages are sought against defendants in their individual or official capacities. Hardy’s complaint is, therefore, construed to assert claims against defendants in both capacities. See Oliver Schools, Inc. v. Foley, 930 F.2d 248, 252 (2d Cir.1991) (“[A] complaint’s failure to specify that claims against state officials are asserted against them in their individual capacities does not justify an outright dismissal .... ”). Insofar as Hardy asserts § 1983 claims for damages against State defendants in their official capacities, those claims are barred by the Eleventh Amendment and are therefore dismissed. See, e.g., Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (explaining that claims against employees of NYS DOCS in their official capacities are barred by the Eleventh Amendment). For the same reason, Hardy’s request to further amend his complaint to add NYS DOCS as a defendant is denied. See id. (dismissing claims against NYS DOCS as barred by the Eleventh Amendment); Santiago v. N.Y. Dep’t of Corr. Servs., 945 F.2d 25, 28 n. 1 (2d Cir.1991) (noting that NYS DOCS, as an agency of the state, is entitled to assert Eleventh Amendment immunity against a claim for damages). In contrast, Hardy’s claims against State defendants in their individual or personal capacities are not barred by the Eleventh Amendment and are considered infra. See Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988). Hardy’s claims against NYCDOC must also be dismissed. As an agency of the City, NYCDOC is not a suable entity. See, e.g., Abreu v. City of New York, 657 F.Supp.2d 357, 361 (E.D.N.Y.2009) (“All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law.” (quoting N.Y. City Charter, Ch. 17, § 396) (internal alteration omitted)); see also Mobley v. O’Gara, No. 02-CV-6605, 2006 WL 197185, at *7 (E.D.N.Y. Jan. 23, 2006) (“It is well established that the [NYCJDOC is a non-suable entity.”). (4) Deliberate Indifference Hardy’s primary claim is a claim of deliberate indifference, brought under 42 U.S.C. § 1983, against the City, Officer Dorvil, Dr. Medard, P.A. Noriel DeGuzman, the Willard Correction Officers, Nurse Dalecki and Dr. Pathak, as well as unnamed employees of NYCDOC and NYS DOCS. Although Hardy asserts only a violation of his due process rights under the Fourteenth Amendment, his claims against State defendants, which arose post-conviction, are properly brought under the Eighth Amendment’s prohibition of “cruel and unusual punishment.” See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir.2009) (explaining that the Eighth Amendment forms the basis of a convicted prisoner’s claim of deliberate indifference to his medical needs, whereas the Fourteenth Amendment protects a state prisoner from deliberate indifference pre-conviction). Accordingly, Hardy’s claims against State defendants will be construed as alleging an Eighth Amendment violation. In any event, “the same standard [applies] irrespective of whether [plaintiffs claims] are brought under the Eighth or Fourteenth Amendment.” Id. at 72. To successfully claim deliberate indifference, a plaintiff must show: (1) that he had a “serious medical condition”; and (2) that it was met with “deliberate indifference.” Id. (quoting Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000)). The first element — a serious medical condition' — is objective. Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006). This objective determination differs, however, depending on whether a prisoner alleges that he received no treatment, or simply inadequate treatment. When prison officials failed to provide any treatment, a court simply examines the inmate’s medical condition, standing alone and in the abstract, to determine if it is “sufficiently serious.” Id. The “sufficiently serious” standard “contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotations and citations omitted). However, a plaintiff is not required to show that he “experiences pain that is at the limit of human ability to bear, nor [must he show] that [his] condition will degenerate into a life-threatening one.” Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003). Relevant factors “include whether ‘a reasonable doctor or patient would find [the condition] important and worthy of comment,’ whether the condition ‘significantly affects an individual’s daily activities,’ and whether it causes ‘chronic and substantial pain.’ ” Salahuddin, 467 F.3d at 280. On the other hand, when a prisoner receives some care, but allegedly inadequate care, the analysis of whether there was a sufficiently serious medical condition is more complex. In this situation, the court must focus on whether “the alleged deprivation of adequate medical care [was] sufficiently serious.” Id. (emphasis added and internal quotation marks omitted). “For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry ‘focus[es] on the challenged delay or interruption in treatment rather than the prisoner’s underlying medical condition alone.’ ” Id. (alteration in original). In effect, a court must determine “whether the inadequacy in medical care [was] sufficiently serious” by examining the harm plaintiff was exposed to as a result of defendant’s conduct. Id. at 280. The second element — deliberate indifference — is subjective, and asks whether the charged official acted “with a sufficiently culpable state of mind.” Id. On a motion for summary judgment, the question that must be answered with respect to this element is whether a reasonable jury could conclude that defendant “knew of and disregarded an excessive risk to [plaintiffs] health or safety and that [defendant] was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and also drew the inference.” Caiozzo, 581 F.3d at 72 (internal quotation marks and alterations omitted); see also Salahuddin, 467 F.3d at 280 (“The reckless official need not desire to cause such harm or be aware that such harm will surely or almost certainly result. Rather, proof of awareness of a substantial risk of the harm suffices.”). Deliberate indifference is thus something more than “mere medical malpractice.” Hathaway, 99 F.3d at 553. However, certain instances of medical malpractice evincing “ ‘a conscious disregard of a substantial risk of serious harm’ ” can rise to the level of deliberate indifference. Id. (quoting Farmer v. Brennan, 511 U.S. 825, 839, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). On the other hand, a poor medical judgment, such as “a delay in treatment based on a bad diagnosis or erroneous calculus of risks and costs” is likely not actionable because it does not evince the degree of culpability required for a constitutional claim. Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir.2000). Moreover, the medical judgments of prison officials and medical personnel are accorded a “presumption of correctness.” Perez v. Cnty. of Westchester, 83 F.Supp.2d 435, 440 (S.D.N.Y.2000) (citing Kulak v. City of New York, 88 F.3d 63, 77 (2d Cir.1996)). With the foregoing standards in mind, it must now be determined whether there are any genuine issues of material fact surrounding Hardy’s claims of deliberate indifference against each of the defendants. a. Rikers Island: Dr. Medard and City Defendants Hardy first asserts a claim of deliberate indifference against those persons he believes mishandled his treatment at Rikers Island: Officer Dorvil, Dr. Medard and additional unnamed medical providers and correction officers. Hardy specifically contends that at OBCC intake, defendants, including Officer Dorvil and Dr. Medard, told Hardy “he was fine and sent him to lockup,” despite his complaints of extreme ear pain and dizziness. Am. Compl. ¶ 34-35. Hardy further complains that over a five-week period after intake, defendants, including Officer Dorvil and Dr. Medard, denied him medical treatment despite repeated requests. Id. ¶ 36. However, the record does not support Hardy’s claims against Dr. Medard and City defendants. First, the evidence contradicts Hardy’s claims that he was denied medical care at the October 15 intake and during his stay at Rikers Island. Instead, the evidence shows that Rikers Island intake personnel noted Hardy’s ear infection and placed him on oral antibiotics. Del Vecchio Deck, Ex. I at NYC5-9, Ex. J at NYC67. A followup appointment took place on October 25, Del Vecchio Deck, Ex. I at NYC15, and the notes from this evaluation indicate that Hardy’s symptoms had temporarily subsided. Id. at NYC14. When Hardy’s symptoms returned, he was treated by Dr. Medard on November 5, id. at NYC13, and finally by an on-site ENT specialist on November 15, at which point he was exhibiting a good deal of swelling in his neck. Id. at NYC22; 50-h Test, at 19. It can be assumed that, if one were to view the condition in the abstract, Hardy’s ear problems during his time at Rikers Island did constitute a sufficiently serious medical condition. See Mendoza v. McGinnis, No. 05-CV-1124, 2008 WL 4239760, at *10 (N.D.N.Y. Sept. 11, 2008) (noting that cases addressing whether an ear condition constitutes a serious medical need are “equivocal and fact-specific” and finding inability to conclude that plaintiffs ear pain did not constitute such a need). However, Hardy cannot show that defendants’ actions amounted to a sufficiently seriously denial of adequate medical care for this condition. See, e.g., Summerville v. Faciuna, No. 05-CV-6459, 2009 WL 2426021, at *7 (W.D.N.Y. Aug. 6, 2009) (“Generally, in cases involving delayed care, the Second Circuit has reserved a finding of deliberate indifference for extreme cases, such as: ignoring a life-threatening and fast-degenerating condition for three days; delaying care as a form of punishment; or delaying major surgery for over two years.” (internal citations omitted)). To the contrary, the evidence shows that the care given to Hardy by Rikers Island staff was reasonably responsive to his symptoms. Evidence shows that Hardy saw medical staff at intake and at least four times during the remainder of his five-week stay at Rikers Island. Id. at NYC6-10, 13-14, 22. Hardy was immediately and continually treated with oral antibiotics and, when his condition deteriorated, he was seen by Dr. Medard, who prescribed additional medicine and referred Hardy to an ENT. Id. at NYC13. Hardy — while not refuting that he was seen by “typical Rikers Island medical staff’ prior to his visit to the ENT, 50-h Test, at 18 — argues that it was unreasonable that, after being referred to an ENT specialist by Dr. Medard, he was forced to wait ten days before seeing this specialist and even then, was only given access to the specialist because he underwent a fainting spell. See Am. Compl. ¶ 36. However, at this stage, Hardy’s symptoms did not appear to be particularly alarming — Dr. Medard’s notes from November 5 indicate that Hardy complained of pain, drainage, and decreased hearing, but that no bulging or perforation was present, as would later be the case. See Del Vecchio Deck, Ex I at NYC 13. Accordingly, there is simply no evidence that would allow a conclusion that, at this point in Hardy’s illness, a ten-day wait to see a specialist— during a period in which Hardy’s condition was being monitored and treated with antibiotics — was unreasonable. Certainly, this delay does not rise to the level of a sufficiently serious denial of medical treatment that might substantiate a Fourteenth Amendment claim. See Summemlle, 2009 WL 2426021, at *8 (finding that, where a plaintiff exhibited similar symptoms, “[a] fourteen-day wait for outside consultation regarding [an ear] condition that was neither life-threatening nor fast-degenerating does not meet the sufficiently serious standard, especially when plaintiff received treatment and monitoring throughout that period”). Furthermore, Hardy has failed to satisfy the subjective element of the deliberate indifference inquiry. There is simply no evidence to support the conclusion that Rikers Island staff intentionally or recklessly disregarded an excessive risk to Hardy’s health. Given this dearth of evidence and the continual treatment that the record indicates that Hardy received, no reasonable jury could conclude that deliberate indifference was present. Because Hardy has failed to demonstrate that any Rikers Island staff or medical providers acted with deliberate indifference to his medical condition, Hardy’s claim against the City for municipal liability based upon these defendants’ alleged deliberate indifference to his medical needs also necessarily fails. See, e.g., Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006); Brodie v. Fuhrman, No. 07-CV-4212, 2010 WL 1189347, at *10 (E.D.N.Y. Mar. 29, 2010) (noting that there must be an underlying constitutional violation to support a Monell claim). Summary judgment is thus granted on this claim as to City defendants and Dr. Medard. b. Downstate The evidence bearing on Hardy’s treatment at Downstate is far less exculpatory. Although State defendants claim that Hardy “received a full medical workup while at Downstate,” Mem. Supp. State Defs.’ Mot. Dismiss. (“State Mem. Supp.”) at 2, the medical records do not indicate that Hardy received any medical care beyond a typical intake evaluation. Crediting Hardy’s assertions that his ear condition was both obvious and incredibly painful, the lack of responsiveness exhibited by Downstate staff might appear quite troubling to a jury. A recapitulation of Hardy’s experience at Downstate is helpful here. The final record relating to Hardy’s treatment at Rikers Island is a November 17 progress note indicating that Hardy’s ear showed minimal redness and minimal exudate; Hardy claims that he also had swelling in his neck about “the size of a small golf ball” at that time. Del Vecchio Deck, Ex. I at NYC10; 50-h Test, at 19. Hardy claims that when he was transferred to Downstate about ten days later, he was experiencing extreme pain, blurred vision, discharge from his ear, hearing loss and increased swelling in his neck, “noticeable to the naked eye.” 50-h Test, at 23. Hardy alleges that despite his pleas for medical staff to send him to a specialist, the correction officer at intake stated “we’re not going to do nothing here because we’re a transit facility, you deal with that when you get to your permanent jail.” 50-h Test, at 25. The amended complaint alleges that this statement was reiterated by P.A. Noriel DeGuzman, who then “refused to give any medical attention to plaintiff.” Am. Compl. ¶ 42. Hardy was incarcerated at Downstate from about November 27 to December 4, after which time he was transferred to Willard. During these eight days, there is no evidence that Hardy received treatment for his ear despite the fact that, according to Hardy’s testimony, his ear’s condition deteriorated considerably. According to Hardy, the pain was “literally unbearable ... to the point [he] couldn’t walk.” 50-h Test, at 24. State health records corroborate the state of Hardy’s ear condition as of the end of his time at Downstate: the day after Hardy was transferred from Downstate to Willard, staff noted that he complained of “excruciating pain” and that he was keeping a wad of toilet paper in his ear, which revealed “cream colored drainage” when removed. Bauman Deck, Ex. C at MED 023. Based on these facts, a reasonable jury might find that Hardy’s claim against Downstate staff satisfies both the objective and subjective components of medical indifference. With respect to the objective element, the record reflects that Downstate officials failed to provide any treatment for Hardy’s ear condition. Therefore, it must only be determined whether Hardy’s ear condition, at that time and in the abstract, was “sufficiently serious.” Salahuddin, 467 F.3d at 280. State defendants argue that Hardy’s “medical condition [was] not a life-threatening situation that would pass muster under Eighth Amendment scrutiny.” State Mem. Supp. at 6. But Hardy need not show that his condition was life-threatening. Brock, 315 F.3d at 162-63. Instead, factors include “(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain.” Id. (internal quotation marks omitted). Viewing the facts in the light most favorable to Hardy, his ear infection could certainly be perceived as “worthy of comment or treatment,” given the amount of swelling and drainage described and his difficulties in walking. Moreover, Hardy’s description of his condition at that point certainly includes “chronic and substantial pain.” See 50-h Test, at 38-43; PL’s Ex. D at 191 (noting Hardy was in “excruciating pain” on December 5). Lastly, Hardy’s claims of extreme pain, blurred vision, reduced hearing and occasional dizziness indicate that his condition did significantly interfere with his daily activities. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). There are also disputed factual issues regarding whether Downstate staff acted with deliberate indifference to Hardy’s needs. The evidence shows that staff was aware of Hardy’s ear condition, Bauman Decl., Ex. B at MED 006, 099, 100 (all noting ruptured ear drum or ear problem), but declined to provide him any medical care despite Hardy’s pleas that he be taken to a specialist. Instead, staff simply explained to Hardy that they planned to do nothing because Downstate was a transit facility. Based on these facts, a reasonable jury might conclude that staff was aware that Hardy’s infection, at that point, presented a substantial risk of serious harm, but nevertheless was deliberately indifferent to his medical needs. Cf. Harrison v. Barkley, 219 F.3d at 139 (explaining that “consciously disregarding an inmate’s legitimate medical needs is not ‘mere medical malpractice,’ ” but instead amounts to culpable behavior). For these reasons, summary judgment is denied as to defendant DeGuzman and the John Doe Correction Officers in the employ of NYS DOCS on Hardy’s claim that he suffered deliberate indifference in violation of § 1983 during his incarceration at Downstate. c. The Willard Correction Officers Hardy’s final claim of deliberate indifference is against various persons at Willard. With respect to his claim of deliberate indifference against the Willard Correction Officers, Hardy alleges that despite being “in really bad shape” when he reached Willard on or about December 5, it was several days before the officers allowed him to see a nurse practitioner. Am. Compl. ¶ 44-^15. Hardy contends that it was only after his mother called the facility, threatening to take legal action, that the Willard Correction Officers allowed him to see an ENT specialist. Id. ¶ 46. Furthermore, Hardy contends, after his surgery on January 3, 2008, the Willard Correction Officers “refused him follow-up treatment or appointments with the doctor.” Id. ¶ 53. The evidence in the record, however, directly contradicts Hardy’s claims. Although Hardy’s ear indeed seems to have been in “bad shape” when he arrived at Willard, medical records, and Hardy’s own 50-h testimony, indicate that he saw a nurse practitioner on the day of intake and frequently after intake. 50-h Test, at 26; Bauman Deck, Ex. C at MED 002, 020-023. Moreover, although Hardy is upset about the amount of time it took for him to see an ENT, it is not clear that the Willard Correction Officers were in a position to refer Hardy to an ENT specialist — the record indicates that it was Willard medical staff who eventually completed this referral for Hardy. Bauman Deck, Ex. C at MED 067. Finally, with respect to Hardy’s claims of lack of access to treatment after surgery, the evidence shows that Hardy was kept in Willard’s infirmary for at least three days following his surgery, Pk’s Ex. D at 162; 50-h Test, at 31, had a consultation with Dr. Pathak approximately one week later, and had additional appointments throughout his stay at Willard. See, e.g., Bauman Deck, Ex. C at MED 034, 044, 048; Pk’s Ex D. at 178-82. All of this available evidence points to the conclusion that the Willard Correction Officers did not unreasonably interfere with Hardy’s access to medical staff. Hardy’s deliberate indifference claim against the Willard Correction Officers is, therefore, unsupported by the record, making summary judgment in favor of Officer Reynolds, Officer B. Lewis, Officer G. Lewis, Officer T. Lewis and John Doe Correctional Officers at Willard appropriate. d. Nurse Dalecki and Other Unnamed Willard Medical Providers Hardy also alleges deliberate indifference on the part of Willard medical staff, including Nurse Dalecki. Summary judgment on these claims is denied. Although Hardy was seen by Willard medical staff on numerous occasions, their responses to his complaints were sometimes so underwhelming as to possibly constitute deliberate indifference. First, it appears that Willard medical staffs responses to Hardy’s c