ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

WILEY Y. DANIEL, Senior District Judge.

THIS MATTER is before the Court on pro se plaintiff, Michael Dicino's, Motion For Leave To Amend Complaint [ECF No. 84] and Magistrate Judge Mix's Recommendation [ECF No. 103]. Because Dicino proceeds pro se, I referred this action to Magistrate Judge Mix. ECF No. 20. On October 9, 2013, Magistrate Judge Mix issued her Recommendation [ECF No. 103] on Dicino's Motion For Leave To Amend Complaint [ECF 84] in which she states that Dicino's motion should be granted in part and denied in part. Magistrate Judge Mix's Recommendation [ECF No. 103] is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Rule 72(b) of the FEDERAL RULES of CIVIL PROCEDURE, and D.C.COLO.LCivR. 72.1.

BACKGROUND

On August 30, 2012, Dicino filed a Second and Final Amended Prisoner Complaint [ECF No. 16] alleging a claim under 42 U.S.C. § 19831 that defendants, Michael Renfro and Alexandra Garcia, violated his Eighth Amendment right to be free from cruel and unusual punishment. Dicino is currently incarcerated at Arapahoe County's detention facility in Colorado. Dicino was previously incarcerated at Jefferson County Jail in Colorado. Renfro is an Administrative Sergeant at Jefferson County Jail, and Garcia is a Nurse at Jefferson County Jail.

While at Jefferson County Jail, Dicino alleges that water from the showers leaked into the dayroom outside his cell and into his own cell. Dicino alleges that the water formed a "constant moldy puddle" and correctional officers did not provide him with a mop to clean the area. ECF No. 16, p. 4, ¶ 2. Dicino further alleges that as a result of the moldy puddle, he developed a painful skin rash over his entire body "that was so obvious even a layperson would realize the need for medical attention." Id.

Dicino states that he requested medical attention and sent written requests to Garcia, yet he did not receive medical attention until two months after the requests. Upon receiving medical attention, a doctor prescribed steroids for Dicino's rash yet Dicino never received the steroids. As a result, Dicino states that Garcia violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to provide him adequate medical care.

Dicino states that he alerted Renfro about the condition of his cell and Renfro failed to remedy the leaky shower. Dicino argues that his conditions of confinement and Renfro's failure to fix the leaky shower constitute cruel and unusual punishment under the Eighth Amendment.

On October 11, 2012, Renfro filed a Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) And 12(b)(5) [ECF No. 28], arguing that: (1) Dicino fails to state a claim for cruel and unusual living conditions; (2) the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(e), bars Dicino's claim for compensatory damages; (3) Dicino fails to allege facts to support a claim against Renfro in his official capacity; and, (4) qualified immunity bars Dicino's claim against him in his individual capacity. On December 5, 2012, Garcia filed a Motion To Dismiss Plaintiff's Second And Final Amended Prisoner Complaint [ECF No. 45], arguing that: (1) Dicino fails to allege a causal link between his cell conditions and his rash; (2) Dicino fails to adequately allege that she was deliberately indifferent to his medical needs; and, (3) Dicino fails to allege facts to support a claim against her in her official capacity. On February 14, 2013, Magistrate Judge Mix issued a Recommendation [ECF No. 58] stating that: (1) Renfro's motion [ECF No. 28] should be granted and that he should be dismissed from this action; and, (2) Garcia's motion [ECF No. 45] should be granted to the extent Garcia seeks dismissal of Dicino's claim against her in her official capacity, and denied to the extent Garcia seeks dismissal of Dicino's claim against her in her individual capacity. On May 28, 2013, I issued an Order [ECF No. 72] affirming and adopting Magistrate Judge Mix's Recommendation [ECF No. 58].

On June 21, 2013, Dicino filed his Motion For Leave To Amend Complaint [ECF No. 84] in which he requests leave to amend his complaint to cure deficiencies in his previously dismissed Eight Amendment claim against Renfro and to clarify allegations in his Eighth Amendment claim against Garcia. On October 9, 2013, Magistrate Judge Mix issued a Recommendation [ECF No. 103] on Dicino's motion [ECF No. 84] stating that Dicino's motion should be granted to the extent he wishes to clarify allegations against Garcia and denied to the extent Dicino wishes to add allegations to cure deficiencies in his previously dismissed claim against Renfro. On November 18, 2013, Dicino filed his Objections to Recommendation Of United States Magistrate Judge [ECF No. 108] in which he objects to the finding that his allegations are insufficient to state a claim against Renfro.

ANALYSIS

A. Sections of Magistrate Judge Mix's Recommendation That Are Without Objection

No objections were filed regarding Magistrate Judge Mix's recommendation that Dicino be granted leave to amend his complaint as it relates to his Eight Amendment claim against Garcia. As such, I am vested with discretion to review that portion of the Recommendation "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Nonetheless, though not required to do so, I review this portion of the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." FED. R. CIV. P. 72(b) Advisory Committee Notes.

Upon careful review, I find that there is no clear error on the face of the record and this portion of the Recommendation is thorough, well-reasoned, and sound. Therefore, Dicino's Motion For Leave To Amend Complaint [ECF No. 84] is GRANTED to the extent he seeks leave to amend his complaint as to Garcia.

B. Dicino's Objections to Magistrate Judge Mix's Recommendation [ECF No. 108]

Dicino objects to the portion of the Recommendation stating that amendment of his previously dismissed Eighth Amendment claim against Renfro is futile and that he "has still not provided allegations sufficient to demonstrate that Sgt. Renfro acted with the obduracy and wantonness that is required to support a cruel and unusual punishment claim. . . " ECF No. 103, p. 6. Because Dicino filed objections to this portion of the Recommendation, I must review it de novo. FED. R. CIV. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C). I must "consider relevant evidence of record and not merely review the magistrate judge's recommendation." In re Griego, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted). Further, I am given discretion whether to "accept, reject, or modify" the recommended disposition by Magistrate Judge Mix. FED. R. CIV. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C).

In my May 28, 2013, Order [ECF No. 72], I affirmed and adopted Magistrate Judge Mix's Recommendation [ECF No. 58] regarding Renfro's Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(5) [ECF No. 28] which stated that Dicino "has not pled sufficient facts to state a plausible claim that Defendant Renfro knew of and deliberately disregarded a danger to Plaintiff based on the living conditions of his cell." ECF No. 103, p. 6. In his Motion To Amend Complaint [ECF No. 84], Dicino alleges that paragraphs 11-13 of his proposed Third Amended Prisoner Complaint [ECF No. 84-1] "cure the deficiencies in the complaint by specifying Renfro's deliberate indifference." ECF No. 84, p. 5, ¶ 14. Paragraphs 11-13 state:

ECF No. 84-1, p. 8, ¶¶ 11-12 and p. 9, ¶¶ 12-13.

Dicino relies on Despain v. Uphoff, 264 F.3d 965 (10th Cir. 2001), in support of his argument that paragraphs 11-13 cure the deficiencies in his previously dismissed Eighth Amendment claim asserted against Renfro. In Despain, the United States Court of Appeals for the Tenth Circuit reversed the district court and found that the petitioner had established a 42 U.S.C. § 1983 claim regarding a violation of his Eight Amendment right to be free from cruel and unusual punishment due to conditions resulting from a prison flood. The facts in Despain are strikingly different than the facts in the case at bar. In Despain, prisoners in the administrative segregation unit intentionally plugged their toilets with styrofoam cups in order to flood the unit. This resulted in approximately four inches of standing water. Prison officials turned the toilet system off for approximately 36 hours in order to remedy the situation. Without the ability to use toilets, prisoners urinated and defecated in the standing water, which resulted in free-flowing urine and feces. Further, "[t]he [food] cart's ground clearance was roughly the same as the water depth, making it difficult to avoid contact between the food and the contaminated water." 264 F.3d at 972. "Food trays were not picked up after lunch service, and at future meals the officers merely kicked the trays out of their way, adding uneaten and partially eaten food to the standing water." Id. The situation became so deplorable that "officers began wearing boots to protect themselves from the mess." Id. at 973.

Regarding whether the defendant was deliberately indifferent, the petitioner in Despain alleged that the defendant gave orders to not clean up the mess. The Tenth Circuit stated that prison guards reported to the defendant and that "it appears that they were well aware of conditions related to the flooding." 264 F.3d at 977. Thus, the Tenth Circuit stated "we cannot conclude as a matter of law that [the defendant] did not show deliberate indifference to the health risks presented by the flooding and lack of sanitation. Id.

Here, the facts are completely dissimilar to those in Despain. Dicino was not exposed to four inches of standing water contaminated with free-flowing urine and feces and his food was not subject to exposure to the contaminated water. Further, there is no evidence that Renfro told any other prison official to not clean up the shower water, as was the case in Despain. Thus, Despain is distinguishable from the present case and is not controlling.

Having reviewed the objection de novo, I agree with Magistrate Judge Mix's analysis and recommendation that Dicino's proposed Third Amended Prisoner Complaint [ECF No. 84-1] is futile as it relates to his previously dismissed Eighth Amendment claim against Renfro. Therefore, the objection is OVERRULED.

CONCLUSION

After careful consideration of the matters before this Court, it is

ORDERED that Magistrate Judge Mix's Recommendation [ECF No. 103] is AFFIRMED and ADOPTED. It is

FURTHER ORDERED that Dicino's Objections To Recommendation Of United States Magistrate Judge [ECF No. 108] are OVERRULED. As such, it is

FURTHER ORDERED that Dicino's Motion To Amend Complaint [ECF No. 84] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that Dicino seeks to amend his complaint to clarify allegations in his Eighth Amendment claim against Garcia. The motion is DENIED to the extent that Dicino requests leave to amend his complaint to cure deficiencies in his previously dismissed Eighth Amendment claim against Renfro. Thus, Dicino's proposed Third Amended Prisoner Complaint [ECF No. 84-1] is accepted only to the extent that he alleges an Eighth Amendment claim against Garcia.